ARIZONA v. UNITED STATES
On April 23, 2010, the Arizona State Legislature passed S.B. 1070; Governor Jan Brewer signed the bill into law. On July 6, 2010, the United States sought to stop the enforcement of S.B. 1070 in federal district court before the law could take effect. The district court did not enjoin the entire act, but it did enjoin four provisions. The court enjoined provisions that (1) created a state-law crime for being unlawfully present in the United States, (2) created a state-law crime for working or seeking work while not authorized to do so, (3) required state and local officers to verify the citizenship or alien status of anyone who was lawfully arrested or detained, and (4) authorized warrantless arrests of aliens believed to be removable from the United States.
Arizona appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit. The appellate court affirmed the district court's decision, holding that the United States had shown that federal law likely preempted: (a) the creation of a state-crime for violation of federal registration laws, (b) the creation of a state-crime for work by unauthorized aliens, (c) the requirement to verify citizenship of all detained persons, and (d) the authorization for police officers to effect warrantless arrests based on probable cause of removability from the United States. Arizona appealed the court's decision.
Do the federal immigration laws preclude Arizona's efforts at cooperative law enforcement and preempt the four provisions of S.B. 1070 on their face?
Legal provision: Supremacy Clause
Yes for provisions 1, 2, and 4; No for provision 3. Justice Anthony M. Kennedy, writing for a 5-3 majority, reversed in part and affirmed in part. The Supreme Court held that provision 1 conflicts with the federal alien registration requirements and enforcement provisions already in place. Provision 2 is preempted because its method of enforcement interferes with the careful balance Congress struck with federal laws on unauthorized employment of aliens. Provision 4 is preempted because it usurps the federal government’s authority to use discretion in the removal process. This creates an obstacle to carrying out the purposes and objectives of federal immigration laws.
The Court upheld provision 3 as constitutional on its face. This provision merely allows state law enforcement officials to communicate with the federal Immigrations and Customs Enforcement office during otherwise lawful arrests. The provision has three limitations that protect individual rights: a detainee is presumed not to be an illegal alien if he/she produces a valid Arizona drivers license; an officer may not consider race, color, or national origin during a check; and the check must be implemented in a manner consistent with federal law. Justice Kennedy noted that this decision did not foreclose any future constitutional challenges to the law on an as applied basis.
Justice Antonin Scalia concurred in part and dissented in part, writing that all four provisions are constitutional. He argued that the Arizona statute does not conflict with federal law, but enforces federal immigration restrictions more effectively. Justice Clarence Thomas concurred in part and dissented in part, agreeing with Justice Scalia that all four provisions are constitutional. He argued that there is no conflict between the ordinary meaning of the federal laws and the Arizona statute. Justice Samuel A. Alito, Jr. concurred in part and dissented in part, agreeing with the majority on provisions 1 and 3, but disagreeing on 2 and 4. Justice Elena Kagan took no part in the consideration or decision in the case.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
ARIZONA, et al., PETITIONERS v. UNITED STATES
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 25, 2012]
Justice Kennedy delivered the opinion of the Court.
To address pressing issues related to the large number of aliens within its borders who do not have a lawful right to be in this country, the State of Arizona in 2010 enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as S. B. 1070, the version introduced in the state senate. See also H. 2162 (2010) (amending S. 1070). Its stated purpose is to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Note following Ariz. Rev. Stat. Ann. §11–1051 (West 2012). The law’s provisions establish an official state policy of “attrition through enforcement.” Ibid. The question before the Court is whether federal law preempts and renders invalid four separate provisions of the state law.I
The United States filed this suit against Arizona, seeking to enjoin S. B. 1070 as preempted. Four provisions of the law are at issue here. Two create new state offenses. Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor. Ariz. Rev. Stat. Ann. §13–1509 (West Supp. 2011). Section 5, in relevant part, makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; this provision is referred to as §5(C). See §13–2928(C). Two other provisions give specific arrest authority and investigative duties with respect to certain aliens to state and local law enforcement officers. Section 6 authorizes officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.” §13–3883(A)(5). Section 2(B) provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the Federal Government. See §11–1051(B) (West 2012).
The United States District Court for the District of Arizona issued a preliminary injunction preventing the four provisions at issue from taking effect. 703 F. Supp. 2d 980, 1008 (2010). The Court of Appeals for the Ninth Circuit affirmed. 641 F. 3d 339, 366 (2011). It agreed that the United States had established a likelihood of success on its preemption claims. The Court of Appeals was unanimous in its conclusion that §§3 and 5(C) were likely preempted. Judge Bea dissented from the decision to uphold the preliminary injunction against §§2(B) and 6. This Court granted certiorari to resolve important questions concerning the interaction of state and federal power with respect to the law of immigration and alien status. 565 U. S. ___ (2011).II A
The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U. S. 1, 10 (1982) ; see generally S. Legomsky & C. Rodríguez, Immigration and Refugee Law and Policy 115–132 (5th ed. 2009). This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936) ).
The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici Curiae; see also Harisiades v. Shaughnessy, 342 U. S. 580 –589 (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae 24–30.
It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States. See Chy Lung v. Freeman, 92 U. S. 275 –280 (1876); see also The Federalist No. 3, p. 39 (C. Rossiter ed. 2003) (J. Jay) (observing that federal power would be necessary in part because “bordering States . . . under the impulse of sudden irritation, and a quick sense of apparent interest or injury” might take action that would undermine foreign relations). This Court has reaffirmed that “[o]ne of the most important and delicate of all international relationships . . . has to do with the protection of the just rights of a country’s own nationals when those nationals are in another country.” Hines v. Davidowitz, 312 U. S. 52, 64 (1941) .
Federal governance of immigration and alien status is extensive and complex. Congress has specified categories of aliens who may not be admitted to the United States. See 8 U. S. C. §1182. Unlawful entry and unlawful reentry into the country are federal offenses. §§1325, 1326. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. See §§1301–1306. Failure to do so is a federal misdemeanor. §§1304(e), 1306(a). Federal law also authorizes States to deny noncitizens a range of public benefits, §1622; and it imposes sanctions on employers who hire unauthorized workers, §1324a.
Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See §1227. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. See Brief for Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae 8–13 (hereinafter Brief for Former INS Commissioners). Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. See §1229a(c)(4); see also, e.g., §§1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary departure).
Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.
Agencies in the Department of Homeland Security play a major role in enforcing the country’s immigration laws. United States Customs and Border Protection (CBP) is responsible for determining the admissibility of aliens and securing the country’s borders. See Dept. of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions: 2010, p. 1 (2011). In 2010, CBP’s Border Patrol apprehended almost half a million people. Id., at 3. Immigration and Customs Enforcement (ICE), a second agency, “conducts criminal investigations involving the enforcement of immigration-related statutes.” Id., at 2. ICE also operates the Law Enforcement Support Center. LESC, as the Center is known, provides immigration status information to federal, state, and local officials around the clock. See App. 91. ICE officers are responsible “for the identification, apprehension, and removal of illegal aliens from the United States.” Immigration Enforcement Actions, supra, at 2. Hundreds of thousands of aliens are removed by the Federal Government every year. See id., at 4 (reporting there were 387,242 removals, and 476,405 returns without a removal order, in 2010).B
The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. Dept. of Homeland Security, Office of Immigration Statistics, 2010 Yearbook of Immigration Statistics 93 (2011) (Table 35). Unauthorized aliens who remain in the State comprise, by one estimate, almost six percent of the population. See Passel & Cohn, Pew Hispanic Center, U. S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade 3 (2010). And in the State’s most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).
Statistics alone do not capture the full extent of Arizona’s concerns. Accounts in the record suggest there is an “epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border. Brief for Petitioners 6. Phoenix is a major city of the United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, “DANGER—PUBLIC WARNING—TRAVEL NOT RECOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed.” App. 170; see also Brief for Petitioners 5–6. The problems posed to the State by illegal immigration must not be underestimated.
These concerns are the background for the formal legal analysis that follows. The issue is whether, under preemption principles, federal law permits Arizona to implement the state-law provisions in dispute.III
Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. See Gregory v. Ashcroft, 501 U. S. 452, 457 (1991) ; U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring). From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade Council, 530 U. S. 363, 372 (2000) ; Gibbons v. Ogden, 9 Wheat. 1, 210–211 (1824). There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision. See, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___ (2011) (slip op., at 4).
State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 115 (1992) . The intent to displace state law altogether can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where there is a “federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) ; see English v. General Elec. Co., 496 U. S. 72, 79 (1990) .
Second, state laws are preempted when they conflict with federal law. Crosby, supra, at 372. This includes cases where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 –143 (1963), and those instances where the challenged state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines, 312 U. S., at 67; see also Crosby, supra, at 373 (“What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects”). In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Congress.” Rice, supra, at 230; see Wyeth v. Levine, 555 U. S. 555, 565 (2009) .
The four challenged provisions of the state law each must be examined under these preemption principles.IV A Section 3
Section 3 of S. B. 1070 creates a new state misdemeanor. It forbids the “willful failure to complete or carry an alien registration document . . . in violation of 8 United States Code section 1304(e) or 1306(a).” Ariz. Rev. Stat. Ann. §11–1509(A) (West Supp. 2011). In effect, §3 adds a state-law penalty for conduct proscribed by federal law. The United States contends that this state enforcement mechanism intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate. See Brief for United States 27, 31.
The Court discussed federal alien-registration requirements in Hines v. Davidowitz, 312 U. S. 52 . In 1940, as international conflict spread, Congress added to federal immigration law a “complete system for alien registration.” Id., at 70. The new federal law struck a careful balance. It punished an alien’s willful failure to register but did not require aliens to carry identification cards. There were also limits on the sharing of registration records and fingerprints. The Court found that Congress intended the federal plan for registration to be a “single integrated and all-embracing system.” Id., at 74. Because this “complete scheme . . . for the registration of aliens” touched on foreign relations, it did not allow the States to “curtail or complement” federal law or to “enforce additional or auxiliary regulations.” Id., at 66–67. As a consequence, the Court ruled that Pennsylvania could not enforce its own alien-registration program. See id., at 59, 74.
The present regime of federal regulation is not identical to the statutory framework considered in Hines, but it remains comprehensive. Federal law now includes a requirement that aliens carry proof of registration. 8 U. S. C. §1304(e). Other aspects, however, have stayed the same. Aliens who remain in the country for more than 30 days must apply for registration and be fingerprinted. Compare §1302(a) with id., §452(a) (1940 ed.). Detailed information is required, and any change of address has to be reported to the Federal Government. Compare §§1304(a), 1305(a) (2006 ed.), with id., §§455(a), 456 (1940 ed.). The statute continues to provide penalties for the willful failure to register. Compare §1306(a) (2006 ed.), with id., §457 (1940 ed.).
The framework enacted by Congress leads to the conclusion here, as it did in Hines, that the Federal Government has occupied the field of alien registration. See American Ins. Assn. v. Garamendi, 539 U. S. 396 , n. 11 (2003) (characterizing Hines as a field preemption case); Pennsylvania v. Nelson, 350 U. S. 497, 504 (1956) (same); see also Dinh, Reassessing the Law of Preemption, 88 Geo. L. J. 2085, 2098–2099, 2107 (2000) (same). The federal statutory directives provide a full set of standards governing alien registration, including the punishment for noncompliance. It was designed as a “ ‘harmonious whole.’ ” Hines, supra, at 72. Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 249 (1984) .
Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders. If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement” and “detract[ing] from the ‘integrated scheme of regulation’ created by Congress.” Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282 –289 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. See California v. Zook, 336 U. S. 725 –731, 733 (1949); see also In re Loney, 134 U. S. 372 –376 (1890) (States may not impose their own punishment for perjury in federal courts).
Arizona contends that §3 can survive preemption because the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption—that States may not enter, in any respect, an area the Federal Government has reserved for itself—but also is unpersuasive on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted. Cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341 –348 (2001) (States may not impose their own punishment for fraud on the Food and Drug Administration); Wisconsin Dept., supra, at 288 (States may not impose their own punishment for repeat violations of the National Labor Relations Act). Were §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.
There is a further intrusion upon the federal scheme. Even where federal authorities believe prosecution is appropriate, there is an inconsistency between §3 and federal law with respect to penalties. Under federal law, the failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation. See 8 U. S. C. §1304(e) (2006 ed.); 18 U. S. C. §3561. State law, by contrast, rules out probation as a possible sentence (and also eliminates the possibility of a pardon). See Ariz. Rev. Stat. Ann. §13–1509(D) (West Supp. 2011). This state framework of sanctions creates a conflict with the plan Congress put in place. See Wisconsin Dept., supra, at 286 (“[C]onflict is imminent whenever two separate remedies are brought to bear on the same activity” (internal quotation marks omitted)).
These specific conflicts between state and federal law simply underscore the reason for field preemption. As it did in Hines, the Court now concludes that, with respect to the subject of alien registration, Congress intended to preclude States from “complement[ing] the federal law, or enforc[ing] additional or auxiliary regulations.” 312 U. S., at 66–67. Section 3 is preempted by federal law.B Section 5(C)
Unlike §3, which replicates federal statutory requirements, §5(C) enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in Arizona. Ariz. Rev. Stat. Ann. §13–2928(C) (West Supp. 2011). Violations can be punished by a $2,500 fine and incarceration for up to six months. See §13–2928(F); see also §§13–707(A)(1) (West 2010); 13–802(A); 13–902(A)(5). The United States contends that the provision upsets the balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control.
When there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own laws on the subject. In 1971, for example, California passed a law imposing civil penalties on the employment of aliens who were “not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” 1971 Cal. Stats. ch. 1442, §1(a). The law was upheld against a preemption challenge in De Canas v. Bica, 424 U. S. 351 (1976) . De Canas recognized that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” Id., at 356. At that point, however, the Federal Government had expressed no more than “a peripheral concern with [the] employment of illegal entrants.” Id., at 360; see Whiting, 563 U. S., at ___ (slip op., at 3).
Current federal law is substantially different from the regime that prevailed when De Canas was decided. Congress enacted IRCA as a comprehensive framework for “combating the employment of illegal aliens.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 147 (2002) . The law makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers. See 8 U. S. C. §§1324a(a)(1)(A), (a)(2). It also requires every employer to verify the employment authorization status of prospective employees. See §§1324a(a) (1)(B), (b); 8 CFR §274a.2(b) (2012). These requirements are enforced through criminal penalties and an escalating series of civil penalties tied to the number of times an employer has violated the provisions. See 8 U. S. C. §§1324a(e)(4), (f); 8 CFR §274a.10.
This comprehensive framework does not impose federal criminal sanctions on the employee side (i.e., penalties on aliens who seek or engage in unauthorized work). Under federal law some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employment are not eligible to have their status adjusted to that of a lawful permanent resident. See 8 U. S. C. §§1255(c)(2), (c)(8). Aliens also may be removed from the country for having engaged in unauthorized work. See §1227(a)(1)(C)(i); 8 CFR §214.1(e). In addition to specifying these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means. See 18 U. S. C. §1546(b). Congress has made clear, however, that any information employees submit to indicate their work status “may not be used” for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct. See 8 U. S. C. §§1324a(b)(5), (d)(2)(F)–(G).
The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. A commission established by Congress to study immigration policy and to make recommendations concluded these penalties would be “unnecessary and unworkable.” U. S. Immigration Policy and the National Interest: The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy with Supplemental Views by Commissioners 65–66 (1981); see Pub. L. 95–412, §4, 92Stat. 907. Proposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting IRCA. See Brief for Service Employees International Union et al. as Amici Curiae 9–12. But Congress rejected them. See, e.g., 119 Cong. Rec. 14184 (1973) (statement of Rep. Dennis). In the end, IRCA’s framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work—aliens who already face the possibility of employer exploitation because of their removable status—would be inconsistent with federal policy and objectives. See, e.g., Hearings before the Subcommittee No. 1 of the House Committee on the Judiciary, 92d Cong., 1st Sess., pt. 3, pp. 919–920 (1971) (statement of Rep. Rodino, the eventual sponsor of IRCA in the House of Representatives).
IRCA’s express preemption provision, which in most instances bars States from imposing penalties on employers of unauthorized aliens, is silent about whether additional penalties may be imposed against the employees themselves. See 8 U. S. C. §1324a(h)(2); Whiting, supra, at ___–___ (slip op., at 1–2). But the existence of an “express pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles” or impose a “special burden” that would make it more difficult to establish the preemption of laws falling outside the clause. Geier v. American Honda Motor Co., 529 U. S. 861 –872 (2000); see Sprietsma v. Mercury Marine, 537 U. S. 51, 65 (2002) .
The ordinary principles of preemption include the well-settled proposition that a state law is preempted where it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U. S., at 67. Under §5(C) of S. B. 1070, Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens. Although §5(C) attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of enforcement. The Court has recognized that a “[c]onflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy.” Motor Coach Employees v. Lockridge, 403 U. S. 274, 287 (1971) . The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose. See Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp., 485 U. S. 495, 503 (1988) (“Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn—not from federal inaction alone, but from inaction joined with action”). Section 5(C) is preempted by federal law.C Section 6
Section 6 of S. B. 1070 provides that a state officer, “without a warrant, may arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.” Ariz. Rev. Stat. Ann. §13–3883(A)(5) (West Supp. 2011). The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created.
As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza, 468 U. S. 1032, 1038 (1984) . If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Appear. See 8 U. S. C. §1229(a); 8 CFR §239.1(a) (2012). The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U. S. C. §1229(a)(1). If an alien fails to appear, an in absentia order may direct removal. §1229a(5)(A).
The federal statutory structure instructs when it is appropriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States.” 8 U. S. C. §1226(a); see Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter 2011 ICE Memorandum) (describing factors informing this and related decisions). And if an alien is ordered removed after a hearing, the Attorney General will issue a warrant. See 8 CFR §241.2(a)(1). In both instances, the warrants are executed by federal officers who have received training in the enforcement of immigration law. See §§241.2(b), 287.5(e)(3). If no federal warrant has been issued, those officers have more limited authority. See 8 U. S. C. §1357(a). They may arrest an alien for being “in the United States in violation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” §1357(a)(2).
Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.
This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A principal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See §1357(g)(1); see also §1103(a)(10) (authority may be extended in the event of an “imminent mass influx of aliens off the coast of the United States”); §1252c (authority to arrest in specific circumstance after consultation with the Federal Government); §1324(c) (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements are subject to the Attorney General’s direction and supervision. §1357(g)(3). There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable. See Padilla v. Kentucky, 559 U. S. ___, ___–___ (2010) (Alito, J., concurring in judgment) (slip op., at 4–7). As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigration officer. See §1357(g)(2); cf. 8 CFR §§287.5(c) (arrest power contingent on training), 287.1(g) (defining the training).
By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. See, e.g., Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471 –484 (1999); see also Brief for Former INS Commissioners 8–13. A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 348 (2005) (“Removal decisions, including the selection of a removed alien’s destination, may implicate [the Nation’s] relations with foreign powers and require consideration of changing political and economic circumstances” (internal quotation marks omitted)); see also Galvan v. Press, 347 U. S. 522, 531 (1954) (“Policies pertaining to the entry of aliens and their right to remain here are . . . entrusted exclusively to Congress . . .”); Truax v. Raich, 239 U. S. 33, 42 (1915) (“The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal Government”).
In defense of §6, Arizona notes a federal statute permitting state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(B). There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government. The Department of Homeland Security gives examples of what would constitute cooperation under federal law. These include situations where States participate in a joint task force with federal officers, provide operational support in executing a warrant, or allow federal immigration officials to gain access to detainees held in state facilities. See Dept. of Homeland Security, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters 13–14 (2011), online at http:// www.dhs.gov/files/resources/immigration.shtm (all Internet materials as visited June 21, 2012, and available in Clerk of Court’s case file). State officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody. See §1357(d). But the unilateral state action to detain authorized by §6 goes far beyond these measures, defeating any need for real cooperation.
Congress has put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances. By nonetheless authorizing state and local officers to engage in these enforcement activities as a general matter, §6 creates an obstacle to the full purposes and objectives of Congress. See Hines, 312 U. S., at 67. Section 6 is preempted by federal law.D Section 2(B)
Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” Ibid. The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records.
Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers “may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Arizona Constitution[s].” Ibid. Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” §11–1051(L) (West 2012).
The United States and its amici contend that, even with these limits, the State’s verification requirements pose an obstacle to the framework Congress put in place. The first concern is the mandatory nature of the status checks. The second is the possibility of prolonged detention while the checks are being performed.1
Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(A). And Congress has obligated ICE to respond to any request made by state officials for verification of a person’s citizenship or immigration status. See §1373(c); see also §1226(d)(1)(A) (requiring a system for determining whether individuals arrested for aggravated felonies are aliens). ICE’s Law Enforcement Support Center operates “24 hours a day, seven days a week, 365 days a year” and provides, among other things, “immigration status, identity information and real-time assistance to local, state and federal law enforcement agencies.” ICE, Fact Sheet: Law Enforcement Support Center (May 29, 2012), online at http:// www.ice.gov/news/library/factsheets/lesc.htm. LESC responded to more than one million requests for information in 2009 alone. App. 93.
The United States argues that making status verification mandatory interferes with the federal immigration scheme. It is true that §2(B) does not allow state officers to consider federal enforcement priorities in deciding whether to contact ICE about someone they have detained. See Brief for United States 47–50. In other words, the officers must make an inquiry even in cases where it seems unlikely that the Attorney General would have the alien removed. This might be the case, for example, when an alien is an elderly veteran with significant and longstanding ties to the community. See 2011 ICE Memorandum 4–5 (mentioning these factors as relevant).
Congress has done nothing to suggest it is inappropriate to communicate with ICE in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U. S. C. §1357(g) (10)(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [ICE] information regarding the immigration status, lawful or unlawful, of an alien in the United States.” §1644. The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. Cf. Whiting, 563 U. S., at ___–___ (slip op., at 23–24) (rejecting argument that federal law preempted Arizona’s requirement that employers determine whether employees were eligible to work through the federal E-Verify system where the Federal Government had encouraged its use).2
Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immigration status would raise constitutional concerns. See, e.g., Arizona v. Johnson, 555 U. S. 323, 333 (2009) ; Illinois v. Caballes, 543 U. S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV–C, supra (concluding that Arizona may not authorize warrantless arrests on the basis of removability). The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism.
But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. See Reply Brief for Petitioners 12, n. 4 (“[Section 2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or practicable”); cf. Muehler v. Mena, 544 U. S. 93, 101 (2005) (finding no Fourth Amendment violation where questioning about immigration status did not prolong a stop).
To take another example, a person might be held pending release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention. However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re, 332 U. S. 581, 589 (1948) (authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); Gonzales v. Peoria, 722 F. 2d 468, 475–476 (CA9 1983) (concluding that Arizona officers have authority to enforce the criminal provisions of federal immigration law), overruled on other grounds in Hodgers-Durgin v. de la Vina, 199 F. 3d 1037 (CA9 1999).
The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277 (1915) (“So far as statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts” (citation omitted)). As a result, the United States cannot prevail in its current challenge. See Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 446 (1960) (“To hold otherwise would be to ignore the teaching of this Court’s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists”). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.V
Immigration policy shapes the destiny of the Nation. On May 24, 2012, at one of this Nation’s most distinguished museums of history, a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem. There they took the oath to become American citizens. The Smithsonian, News Release, Smithsonian Citizenship Ceremony Welcomes a Dozen New Americans (May 24, 2012), online at http://newsdesk.si.edu/releases. These naturalization ceremonies bring together men and women of different origins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the Constitution, and to bear arms on behalf of the country when required by law. 8 CFR §337.1(a) (2012). The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.* * *
The United States has established that §§3, 5(C), and 6 of S. B. 1070 are preempted. It was improper, however, to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives.
The judgment of the Court of Appeals for the Ninth Circuit is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Kagan took no part in the consideration or decision of this case.
SUPREME COURT OF THE UNITED STATES
ARIZONA, et al., PETITIONERS v. UNITED STATES
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 25, 2012]
Justice Alito, concurring in part and dissenting in part.
This case concerns four provisions of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act, S. B. 1070. Section 2(B) requires Arizona law enforcement officers to make a “reasonable attempt,” “when practicable,” to ascertain the immigration status of any person whom an officer lawfully stops, detains, or arrests “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). Section 3 provides that an alien who willfully fails “to complete or carry an alien registration document” in violation of 8 U. S. C. §1304(e) or §1306(a) is guilty of a misdemeanor. Ariz. Rev. Stat. Ann. §13–1509(A) (West Supp. 2011). Section 5(C) makes it a misdemeanor for an unauthorized alien who is unlawfully present in the United States “to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” Ariz. Rev. Stat. Ann. §13–2928(C). And §6 authorizes Arizona law enforcement officers to arrest without a warrant any person whom the officer has probable cause to believe “has committed any public offense that makes the person removable from the United States.” Ariz. Rev. Stat. Ann. §13–3883(A)(5).
I agree with the Court that §2(B) is not pre-empted. That provision does not authorize or require Arizona law enforcement officers to do anything they are not already allowed to do under existing federal law. The United States’ argument that §2(B) is pre-empted, not by any federal statute or regulation, but simply by the Executive’s current enforcement policy is an astounding assertion of federal executive power that the Court rightly rejects.
I also agree with the Court that §3 is pre-empted by virtue of our decision in Hines v. Davidowitz, 312 U. S. 52 (1941) . Our conclusion in that case that Congress had enacted an “all-embracing system” of alien registration and that States cannot “enforce additional or auxiliary regulations,” id., at 66–67, 74, forecloses Arizona’s attempt here to impose additional, state-law penalties for violations of the federal registration scheme.
While I agree with the Court on §2(B) and §3, I part ways on §5(C) and §6. The Court’s holding on §5(C) is inconsistent with De Canas v. Bica, 424 U. S. 351 (1976) , which held that employment regulation, even of aliens unlawfully present in the country, is an area of traditional state concern. Because state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless Congress’ intent to do so is clear and manifest. I do not believe Congress has spoken with the requisite clarity to justify invalidation of §5(C). Nor do I believe that §6 is invalid. Like §2(B), §6 adds virtually nothing to the authority that Arizona law enforcement officers already exercise. And whatever little authority they have gained is consistent with federal law.Section 2(B) A
Although §2(B) of the Arizona law has occasioned much controversy, it adds nothing to the authority that Arizona law enforcement officers, like officers in all other States, already possess under federal law. For that reason, I agree with the Court that §2(B) is not pre-empted.
Section 2(B) quite clearly does not expand the authority of Arizona officers to make stops or arrests. It is triggered only when a “lawful stop, detention or arrest [is] made . . . in the enforcement of any other [state or local] law or ordinance.” Ariz. Rev. Stat. Ann. §11–1051(B) (emphasis added). Section 2(B) thus comes into play only when an officer has reasonable suspicion or probable cause to believe that a person has committed a nonimmigration offense. Arizona officers plainly possessed this authority before §2(B) took effect.
Section 2(B) also does not expand the authority of Arizona officers to inquire about the immigration status of persons who are lawfully detained. When a person is stopped or arrested and “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States,” §2(B) instructs Arizona officers to make a “reasonable attempt,” “when practicable,” to ascertain that person’s immigration status. Ariz. Rev. Stat. Ann. §11–1051(B). Even before the Arizona Legislature enacted §2(B), federal law permitted state and local officers to make such inquiries. In 8 U. S. C. §1357(g)(10)(A), Congress has made clear that state and local governments need not enter into formal agreements with the Federal Government in order “to communicate with the [Federal Government] regarding the immigration status of any individual.” In addition, Congress has mandated that neither the Federal Government nor any state or local government may “prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [the Federal Government] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” §1373(a); see also §1644 (providing that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [the Federal Government] information regarding the immigration status, lawful or unlawful, of an alien in the United States”). And while these provisions preserve the authority of state and local officers to seek immigration-status information from the Federal Government, another federal statute, §1373(c), requires that the Federal Government respond to any such inquiries “by providing the requested verification or status information.” It comes as no surprise, therefore, that many States and localities permit their law enforcement officers to make the kinds of inquiries that §2(B) prescribes. See App. 294–298 (reporting that officers in 59 surveyed state and local jurisdictions “generally” ask arrestees about their immigration status while 34 do not and that officers in 78 jurisdictions “generally” inform Immigration and Customs Enforcement (ICE) when they believe an arrestee to be an undocumented alien while only 17 do not). Congress has invited state and local governments to make immigration-related inquiries and has even obligated the Federal Government to respond. Through §2(B), Arizona has taken Congress up on that invitation.
The United States does not deny that officers may, at their own discretion, inquire about the immigration status of persons whom they lawfully detain. Instead, the United States argues that §2(B) is pre-empted because it impedes federal-state cooperation by mandating that officers verify the immigration status of every detained person if there is reason to believe that the person is unlawfully present in the country. The United States claims that §2(B)’s mandate runs contrary to federal law in that it “precludes officers from taking [the Federal Government’s] priorities and discretion into account.” Brief for United States 50. “[B]y interposing a mandatory state law between state and local officers and their federal counterparts,” writes the United States, §2(B) “stands as an obstacle to the accomplishment of the federal requirement of cooperation and the full effectuation of the enforcement judgment and discretion Congress has vested in the Executive Branch.” Ibid. (internal quotation marks and citation omitted).
The underlying premise of the United States’ argument seems to be that state and local officers, when left to their own devices, generally take federal enforcement priorities into account. But there is no reason to think that this premise is true. And even if it were, it would not follow that §2(B)’s blanket mandate is at odds with federal law. Nothing in the relevant federal statutes requires state and local officers to consider the Federal Government’s priorities before requesting verification of a person’s immigration status. Neither 8 U. S. C. §1357(g)(10) nor §1373(a) conditions the right of state and local officers to communicate with the Federal Government on their first taking account of its priorities. Nor does §1373(c) condition the Federal Government’s obligation to answer requests for information on the sensitivity of state and local officers to its enforcement discretion. In fact, §1373(c) dictates that the Federal Government “shall respond” to any inquiry seeking verification of immigration status, and that command applies whether or not the requesting officer has bothered to consider federal priorities. Because no federal statute requires such consideration, §2(B) does not conflict with federal law.
In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government’s enforcement priorities without making an inquiry into a suspected alien’s immigration status. For example, one of the Federal Government’s highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? At bottom, the discretion that ultimately matters is not whether to verify a person’s immigration status but whether to act once the person’s status is known. For that reason, §2(B)’s verification requirement is not contrary to federal law because the Federal Government retains the discretion that matters most––that is, the discretion to enforce the law in particular cases. If an Arizona officer contacts the Federal Government to verify a person’s immigration status and federal records reveal that the person is in the country unlawfully, the Federal Government decides, presumably based on its enforcement priorities, whether to have the person released or transferred to federal custody. Enforcement discretion thus lies with the Federal Government, not with Arizona. Nothing in §2(B) suggests otherwise.
The United States’ attack on §2(B) is quite remarkable. The United States suggests that a state law may be pre-empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy. I am aware of no decision of this Court recognizing that mere policy can have pre-emptive force. Cf. Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U. S. 298, 330 (1994) (holding that “Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional” an “otherwise valid, congressionally condoned” state law). If §2(B) were pre-empted at the present time because it is out of sync with the Federal Government’s current priorities, would it be unpre-empted at some time in the future if the agency’s priorities changed?
Like most law enforcement agencies, ICE does not set out inflexible rules for its officers to follow. To the contrary, it provides a list of factors to guide its officers’ enforcement discretion on a case-by-case basis. See Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., p. 4 (June 17, 2011) (“This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities”). Among those factors is “the agency’s civil immigration enforcement priorities,” ibid., which change from administration to administration. If accepted, the United States’ pre-emption argument would give the Executive unprecedented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations. This argument, to say the least, is fundamentally at odds with our federal system.B
It has been suggested that §2(B) will cause some persons who are lawfully stopped to be detained in violation of their constitutional rights while a prolonged investigation of their immigration status is undertaken. But nothing on the face of the law suggests that it will be enforced in a way that violates the Fourth Amendment or any other provision of the Constitution. The law instructs officers to make a “reasonable attempt” to investigate immigration status, and this language is best understood as incorporating the Fourth Amendment’s standard of reasonableness. Indeed, the Arizona Legislature has directed that §2(B) “shall be implemented in a manner consistent with federal laws . . . protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” Ariz. Rev. Stat. Ann. §11–1051(L).
In the situations that seem most likely to occur, enforcement of §2(B) will present familiar Fourth Amendment questions. To take a common situation, suppose that a car is stopped for speeding, a nonimmigration offense. (Recall that §2(B) comes into play only where a stop or arrest is made for a nonimmigration offense.) Suppose also that the officer who makes the stop subsequently acquires reasonable suspicion to believe that the driver entered the country illegally, which is a federal crime. See 8 U. S. C. §1325(a).
It is well established that state and local officers generally have authority to make stops and arrests for violations of federal criminal laws. See, e.g., Miller v. United States, 357 U. S. 301, 305 (1958) ; United States v. Di Re, 332 U. S. 581, 589 (1948) . I see no reason why this principle should not apply to immigration crimes as well. Lower courts have so held. See, e.g., Estrada v. Rhode Island, 594 F. 3d 56, 65 (CA1 2010) (upholding the lawfulness of a detention because the officer had an objectively reasonable belief that the arrestees “had committed immigration violations”); United States v. Vasquez-Alvarez, 176 F. 3d 1294, 1296 (CA10 1999) (noting that “state law-enforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws”); Gonzales v. Peoria, 722 F. 2d 468, 475 (CA9 1983), overruled on other grounds, Hodgers-Durgin v. de la Vina, 199 F. 3d 1037 (1999) (en banc) (holding that “federal law does not preclude local enforcement of the criminal provisions” of federal immigration law). And the United States, consistent with the position long taken by the Office of Legal Counsel (OLC) in the Department of Justice, does not contend otherwise. See Brief for United States 55, n. 33; see also Memorandum from OLC to the Attorney General (Apr. 3, 2002), App. 268–273; Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26 (1996).
More importantly, no federal statute casts doubt on this authority. To be sure, there are a handful of statutes that purport to authorize state and local officers to make immigration-related arrests in certain situations. See, e.g., 8 U. S. C. §1103(a)(10) (providing for the extension of “any” immigration enforcement authority to state and local officers in the event of an “actual or imminent mass influx of aliens arriving off the coast”); §1252c(a) (providing authority to arrest criminal aliens who had illegally reentered the country but only after consultation with the Federal Government); §1324(c) (providing authority to make arrests for transporting and harboring certain aliens). But a grant of federal arrest authority in some cases does not manifest a clear congressional intent to displace the States’ police powers in all other cases. Without more, such an inference is too weak to overcome our presumption against pre-emption where traditional state police powers are at stake. Accordingly, in our hypothetical case, the Arizona officer may arrest the driver for violating §1325(a) if the officer has probable cause. And if the officer has reasonable suspicion, the officer may detain the driver, to the extent permitted by the Fourth Amendment, while the question of illegal entry is investigated.
We have held that a detention based on reasonable suspicion that the detainee committed a particular crime “can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. Caballes, 543 U. S. 405, 407 (2005) . But if during the course of a stop an officer acquires suspicion that a detainee committed a different crime, the detention may be extended for a reasonable time to verify or dispel that suspicion. Cf. Muehler v. Mena, 544 U. S. 93, 101 (2005) (holding that “no additional Fourth Amendment justification” was required because any questioning concerning immigration status did not prolong the detention). In our hypothetical case, therefore, if the officer, after initially stopping the car for speeding, has a reasonable suspicion that the driver entered the country illegally, the officer may investigate for evidence of illegal entry. But the length and nature of this investigation must remain within the limits set out in our Fourth Amendment cases. An investigative stop, if prolonged, can become an arrest and thus require probable cause. See Caballes, supra, at 407. Similarly, if a person is moved from the site of the stop, probable cause will likely be required. See Hayes v. Florida, 470 U. S. 811, 816 (1985) (holding that the line between detention and arrest is crossed “when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes”).
If properly implemented, §2(B) should not lead to federal constitutional violations, but there is no denying that enforcement of §2(B) will multiply the occasions on which sensitive Fourth Amendment issues will crop up. These civil-liberty concerns, I take it, are at the heart of most objections to §2(B). Close and difficult questions will inevitably arise as to whether an officer had reasonable suspicion to believe that a person who is stopped for some other reason entered the country illegally, and there is a risk that citizens, lawful permanent residents, and others who are lawfully present in the country will be detained. To mitigate this risk, Arizona could issue guidance to officers detailing the circumstances that typically give rise to reasonable suspicion of unlawful presence. And in the spirit of the federal-state cooperation that the United States champions, the Federal Government could share its own guidelines. Arizona could also provide officers with a nonexclusive list containing forms of identification sufficient under §2(B) to dispel any suspicion of unlawful presence. If Arizona accepts licenses from most States as proof of legal status, the problem of roadside detentions will be greatly mitigated. 1Section 3
I agree that §3 is pre-empted because, like the Court, I read the opinion in Hines to require that result. Although there is some ambiguity in Hines, the Court largely spoke in the language of field pre-emption. The Court explained that where Congress “has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” 312 U. S., at 66–67. In finding the Pennsylvania alien-registration law pre-empted, the Court observed that Congress had “provided a standard for alien registration in a single integrated and all-embracing system” and that its intent was “to protect the personal liberties of law-abiding aliens through one uniform national registration system.” Id., at 74. If we credit our holding in Hines that Congress has enacted “a single integrated and all-embracing system” of alien registration and that States cannot “complement” that system or “enforce additional or auxiliary regulations,” id., at 66–67, 74, then Arizona’s attempt to impose additional, state-law penalties for violations of federal registration requirements must be invalidated.Section 5(C)
While I agree that §3 is pre-empted, I disagree with the Court’s decision to strike down §5(C). I do so in large measure because the Court fails to give the same solicitude to our decision in De Canas, 424 U. S. 351 , as it is willing to give our decision in Hines. In De Canas, the Court upheld against a pre-emption challenge a state law imposing fines on employers that hired aliens who were unlawfully present in the United States. The Court explained that the mere fact that “aliens are the subject of a state statute does not render it a regulation of immigration.” 424 U. S., at 355. The Court emphasized instead that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” Id., at 356. In light of that broad authority, the Court declared that “[o]nly a demonstration that complete ouster of state power . . . was ‘the clear and manifest purpose of Congress’ would justify” the conclusion that “state regulation designed to protect vital state interests must give way to paramount federal legislation.” Id., at 357 (some internal quotation marks omitted); see also Bates v. Dow Agrosciences LLC, 544 U. S. 431, 449 (2005) (“In areas of traditional state regulation, [the Court] assume[s] that a federal statute has not supplanted state law unless Congress has made such an intention ‘clear and manifest’ ” (some internal quotation marks omitted)).
The Court now tells us that times have changed. Since De Canas, Congress has enacted “a comprehensive framework for combating the employment of illegal aliens,” and even though aliens who seek or obtain unauthorized work are not subject to criminal sanctions, they can suffer civil penalties. Ante, at 12–13 (internal quotation marks omitted). Undoubtedly, federal regulation in this area is more pervasive today. But our task remains unchanged: to determine whether the federal scheme discloses a clear and manifest congressional intent to displace state law.
The Court gives short shrift to our presumption against pre-emption. Having no express statement of congressional intent to support its analysis, the Court infers from stale legislative history and from the comprehensiveness of the federal scheme that “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” Ante, at 13. Because §5(C) imposes such penalties, the Court concludes that it stands as an obstacle to the method of enforcement chosen by Congress. Ante, at 15.
The one thing that is clear from the federal scheme is that Congress chose not to impose federal criminal penalties on aliens who seek or obtain unauthorized work. But that does not mean that Congress also chose to pre-empt state criminal penalties. The inference is plausible, but far from necessary. As we have said before, the “decision not to adopt a regulation” is not “the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.” Sprietsma v. Mercury Marine, 537 U. S. 51, 65 (2002) . With any statutory scheme, Congress chooses to do some things and not others. If that alone were enough to demonstrate pre-emptive intent, there would be little left over for the States to regulate, especially now that federal authority reaches so far and wide. States would occupy tiny islands in a sea of federal power. This explains why state laws implicating traditional state powers are not pre-empted unless there is a “clear and manifest” congressional intention to do so.
Not only is there little evidence that Congress intended to pre-empt state laws like §5(C), there is some evidence that Congress intended the opposite result. In making it unlawful for employers to hire unauthorized aliens, see 8 U. S. C. §1324a(a), Congress made it clear that “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws)” upon employers was pre-empted, §1324a(h)(2). Noticeably absent is any similar directive pre-empting state or local laws targeting aliens who seek or obtain unauthorized employment. Given that Congress expressly pre-empted certain state and local laws pertaining to employers but remained silent about laws pertaining to employees, one could infer that Congress intended to preserve state and local authority to regulate the employee side of the equation. At the very least, it raises serious doubts about whether Congress intended to pre-empt such authority.
The Court dismisses any inferences that might be drawn from the express pre-emption provision. See ante, at 14. But even though the existence of that provision “does not bar the ordinary working of conflict pre-emption principles” or impose a “ ‘special burden’ ” against pre-emption, Geier v. American Honda Motor Co., 529 U. S. 861 –870 (2000), it is still probative of congressional intent. And it is the intent of Congress that is the “ultimate touchstone.” Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963) .
The Court infers from Congress’ decision not to impose federal criminal penalties that Congress intended to pre-empt state criminal penalties. But given that the express pre-emption provision covers only state and local laws regulating employers, one could just as well infer that Congress did not intend to pre-empt state or local laws aimed at alien employees who unlawfully seek or obtain work. Surely Congress’ decision not to extend its express pre-emption provision to state or local laws like §5(C) is more probative of its intent on the subject of pre-emption than its decision not to impose federal criminal penalties for unauthorized work. In any event, the point I wish to emphasize is that inferences can be drawn either way. There are no necessary inferences that point decisively for or against pre-emption. Therefore, if we take seriously that state employment regulation is a traditional state concern and can be pre-empted only on a showing of “clear and manifest” congressional intent as required by De Canas, then §5(C) must survive. “Our precedents establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act.” Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___ (2011) (plurality opinion) (slip op., at 22) (internal quotation marks omitted). I do not believe the United States has surmounted that barrier here.Section 6
I also disagree with the Court’s decision that §6 is pre-empted. This provision adds little to the authority that Arizona officers already possess, and whatever additional authority it confers is consistent with federal law. Section 6 amended an Arizona statute that authorizes warrantless arrests. See Ariz. Rev. Stat. §13–3883 (West 2010). Before §6 was added, that statute already permitted arrests without a warrant for felonies, misdemeanors committed in the arresting officer’s presence, petty offenses, and certain traffic-related criminal violations. See §§13–3883(A)(1)–(4). Largely duplicating the authority already conferred by these prior subsections, §6 added a new subsection, §13–3883(A)(5) (West Supp. 2011), that authorizes officers to make warrantless arrests on probable cause that the arrestee has committed a “public offense” for which the arrestee is removable from the United States. A “public offense” is defined as conduct that is punishable by imprisonment or a fine according to the law of the State where the conduct occurred and that would be punishable under Arizona law had the conduct occurred in Arizona. See §13–105(27).
In what way, if any, does §6 enlarge the arrest authority of Arizona officers? It has been suggested that §6 confers new authority in the following three circumstances: (1) where the arrestee committed but has not been charged with committing an offense in another State; (2) where the officer has probable cause to believe the arrestee committed an offense for which he was previously arrested but not prosecuted; and (3) where the arrestee committed but has already served the sentence for a removable offense. 641 F. 3d 359, 361 (CA9 2011). These are exceedingly narrow categories, involving circumstances that will rarely arise. But such cases are possible, and therefore we must decide whether there are circumstances under which federal law precludes a state officer from making an arrest based on probable cause that the arrestee committed a removable offense.A
The idea that state and local officers may carry out arrests in the service of federal law is not unprecedented. As previously noted, our cases establish that state and local officers may make warrantless arrests for violations of federal law and that “in the absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity.” Di Re, 332 U. S., at 589; see also Miller, 357 U. S., at 305 (stating that, where a state officer makes an arrest based on federal law, “the lawfulness of the arrest without warrant is to be determined by reference to state law”). Therefore, given the premise, which I understand both the United States and the Court to accept, that state and local officers do have inherent authority to make arrests in aid of federal law, we must ask whether Congress has done anything to curtail or pre-empt that authority in this particular case.
Neither the United States nor the Court goes so far as to say that state and local officers have no power to arrest criminal aliens based on their removability. To do so would fly in the face of 8 U. S. C. §1357(g)(10). Under §§1357(g)(1)–(9), the Federal Government may enter into formal agreements with States and municipalities under which their officers may perform certain duties of a federal immigration officer. But §1357(g)(10)(B) makes clear that States and municipalities need not enter into those agreements “otherwise to cooperate . . . in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” It goes without saying that state and local officers could not provide meaningful cooperation in the apprehension, detention, and ultimate removal of criminal aliens without some power to make arrests.
Although §1357(g)(10) contemplates state and local authority to apprehend criminal aliens for the purpose of removal, the Court rejects out of hand any possibility that officers could exercise that authority without federal direction. Despite acknowledging that there is “ambiguity as to what constitutes cooperation,” the Court says that “no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.” Ante, at 18. The Court adopts an unnecessarily stunted view of cooperation. No one would say that a state or local officer has failed to cooperate by making an on-the-spot arrest to enforce federal law. Unsolicited aid is not necessarily uncooperative.
To be sure, were an officer to persist in making an arrest that the officer knows is unwanted, such conduct would not count as cooperation. But nothing in the relevant federal statutes suggests that Congress does not want aliens who have committed removable offenses to be arrested. 2 To the contrary, §1226(c)(1) commands that the Executive “shall take into custody any alien” who is deportable for having committed a specified offense. And §1226(c)(2) substantially limits the circumstances under which the Executive has discretion to release aliens held in custody under paragraph (1). So if an officer arrests an alien who is removable for having committed one of the crimes listed in §1226(c)(1), the Federal Government is obligated to take the alien into custody.
That Congress generally requires the Executive to take custody of criminal aliens casts considerable doubt on the Court’s concern that §6 is an obstacle to the Federal Government’s exercise of discretion. The Court claims that the authority conferred by §6 “could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case” and that this “would allow the State to achieve its own immigration policy,” resulting in the “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Ante, at 17. But §1226(c)(1) belies the Court’s fear. In many, if not most, cases involving aliens who are removable for having committed criminal offenses, Congress has left the Executive no discretion but to take the alien into custody. State and local officers do not frustrate the removal process by arresting criminal aliens. The Executive retains complete discretion over whether those aliens are ultimately removed. And once the Federal Government makes a determination that a particular criminal alien will not be removed, then Arizona officers are presumably no longer authorized under §6 to arrest the alien.
To be sure, not all offenses for which officers have authority to arrest under §6 are covered by §1226(c)(1). As for aliens who have committed those offenses, Congress has given the Executive discretion under §1226(a) over whether to arrest and detain them pending a decision on removal. But the mere fact that the Executive has enforcement discretion cannot mean that the exercise of state police powers in support of federal law is automatically pre-empted. If that were true, then state and local officers could never make arrests to enforce any federal statute because the Executive always has at least some general discretion over the enforcement of federal law as a practical matter. But even assuming that the express statutory grant of discretion in §1226(a) somehow indicates a congressional desire to pre-empt unilateral state and local authority to arrest criminal aliens covered by that provision, §6 is not pre-empted on its face given its substantial overlap with §1226(c)(1).
It bears emphasizing that §6 does not mandate the warrantless apprehension of all aliens who have committed crimes for which they are removable. Instead, it only grants state and local officers permission to make such arrests. The trouble with this premature, facial challenge is that it affords Arizona no opportunity to implement its law in a way that would avoid any potential conflicts with federal law. For example, Arizona could promulgate guidelines or regulations limiting the arrest authority conferred by §6 to the crimes specified in §1226(c)(1). And to the extent §1226(c)(1) is unclear about which exact crimes are covered, 3 Arizona could go even further and identify specific crimes for which there is no doubt an alien would be removable. The point is that there are plenty of permissible applications of §6, and the Court should not invalidate the statute at this point without at least some indication that Arizona has implemented it in a manner at odds with Congress’ clear and manifest intent. We have said that a facial challenge to a statute is “the most difficult challenge to mount successfully” because “the challenger must establish that no set of circumstances exists under which the [statute] would be valid.” United States v. Salerno, 481 U. S. 739, 745 (1987) ; see also Anderson v. Edwards, 514 U. S. 143 , n. 6 (1995) (applying the Salerno standard in a pre-emption case). As to §6, I do not believe the United States has carried that heavy burden.B
Finally, the Court tells us that §6 conflicts with federal law because it provides state and local officers with “even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers.” Ante, at 16–17. The Court points to 8 U. S. C. §1357(a)(2), which empowers “authorized” officers and employees of ICE to make arrests without a federal warrant if “the alien so arrested is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” Because §6 would allow Arizona officers to make arrests “regardless of whether a federal warrant has issued or the alien is likely to escape,” ante, at 17, the Court concludes that §6 is an obstacle to the accomplishment of Congress’ objectives. But §6 is an obstacle only to the extent it conflicts with Congress’ clear and manifest intent to preclude state and local officers from making arrests except where a federal warrant has issued or the arrestee is likely to escape. By granting warrantless arrest authority to federal officers, Congress has not manifested an unmistakable intent to strip state and local officers of their warrantless arrest authority under state law.
Likewise, limitations on federal arrest authority do not mean that the arrest authority of state and local officers must be similarly limited. Our opinion in Miller, 357 U. S. 301 , is instructive. In that case, a District of Columbia officer, accompanied by a federal officer, made an arrest based on a suspected federal narcotics offense. Id., at 303–304. The federal officer did not have statutory authorization to arrest without a warrant, but the local officer did. Id., at 305. We held that District of Columbia law dictated the lawfulness of the arrest. Id., at 305–306. Where a state or local officer makes a warrantless arrest to enforce federal law, we said that “the lawfulness of the arrest without warrant is to be determined by reference to state law.” Id., at 305. Under §6, an Arizona officer may be authorized to make an arrest that a federal officer may not be authorized to make under §1357(a)(2). As Miller makes clear, that fact alone does not render arrests by state or local officers pursuant to §6 unlawful. Nor does it manifest a clear congressional intent to displace the exercise of state police powers that are brought to bear in aid of federal law.
1 When the Real ID Act takes effect, the Federal Government will no longer accept state forms of identification that fail to meet certain federal requirements. §202(a)(1), 119Stat. 312. One requirement is that any identification be issued only on proof that the applicantis lawfully present in the United States. §202(c)(2)(B), id., at 313. I anticipate that most, if not all, States will eventually issue forms of identification that suffice to establish lawful presence under §2(B).
2 That goes for the Executive Branch as well, which has made the apprehension and removal of criminal aliens a priority. See App. 108.
3 I readily admit that it can be difficult to determine whether aparticular conviction will necessarily make an alien removable. See Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (Alito, J., concurring in judgment) (slip op., at 4).
SUPREME COURT OF THE UNITED STATES
ARIZONA, et al., PETITIONERS v. UNITED STATES
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 25, 2012]
Justice Thomas, concurring in part and dissenting in part.
I agree with Justice Scalia that federal immigration law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisions of Arizona law at issue here. Wyeth v. Levine, 555 U. S. 555, 588 (2009) (Thomas, J., concurring in judgment) (“Pre-emption analysis should not be a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict” (brackets; internal quotation marks omitted)).
Section 2(B) of S. B. 1070 provides that, when Arizona law enforcement officers reasonably suspect that a person they have lawfully stopped, detained, or arrested is unlawfully present, “a reasonable attempt shall be made, when practicable, to determine the immigration status of the person” pursuant to the verification procedure established by Congress in 8 U. S. C. §1373(c). Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). Nothing in the text of that or any other federal statute prohibits Arizona from directing its officers to make immigration-related inquiries in these situations. To the contrary, federal law expressly states that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from” federal officials “information regarding the immigration status” of an alien. 8 U. S. C. §1644. And, federal law imposes an affirmative obligation on federal officials to respond to a State’s immigration-related inquiries. §1373(c).
Section 6 of S. B. 1070 authorizes Arizona law enforcement officers to make warrantless arrests when there is probable cause to believe that an arrestee has committed a public offense that renders him removable under federal immigration law. States, as sovereigns, have inherent authority to conduct arrests for violations of federal law, unless and until Congress removes that authority. See United States v. Di Re, 332 U. S. 581, 589 (1948) (holding that state law determines the validity of a warrantless arrest for a violation of federal law “in the absence of an applicable federal statute”). Here, no federal statute purports to withdraw that authority. As Justice Scalia notes, ante, at 12 (opinion concurring in part and dissenting in part), federal law does limit the authority of federal officials to arrest removable aliens, but those statutes do not apply to state officers. And, federal law expressly recognizes that state officers may “cooperate with the Attorney General” in the “apprehension” and “detention” of “aliens not lawfully present in the United States.” §1357(g)(10)(B). Nothing in that statute indicates that such cooperation requires a prior “request, approval, or other instruction from the Federal Government.” Ante, at 18 (majority opinion).
Section 3 of S. B. 1070 makes it a crime under Arizona law for an unlawfully present alien to willfully fail to complete or carry an alien registration document in violation of 8 U. S. C. §1304(e) and §1306(a). Section 3 simply incorporates federal registration standards. Unlike the Court, I would not hold that Congress pre-empted the field of enforcing those standards. “[O]ur recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 617 (1997) (Thomas, J., dissenting); see, e.g., New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 415 (1973) . Here, nothing in the text of the relevant federal statutes indicates that Congress intended enforcement of its registration requirements to be exclusively the province of the Federal Government. That Congress created a “full set of standards governing alien registration,” ante, at 10 (majority opinion), merely indicates that it intended the scheme to be capable of working on its own, not that it wanted to preclude the States from enforcing the federal standards. Hines v. Davidowitz, 312 U. S. 52 (1941) , is not to the contrary. As Justice Scalia explains, ante, at 14, Hines at most holds that federal law pre-empts the States from creating additional registration requirements. But here, Arizona is merely seeking to enforce the very registration requirements that Congress created.
Section 5(C) of S. B. 1070 prohibits unlawfully present aliens from knowingly applying for, soliciting, or performing work in Arizona. Section 5(C) operates only on individuals whom Congress has already declared ineligible to work in the United States. Nothing in the text of the federal immigration laws prohibits States from imposing their own criminal penalties on such individuals. Federal law expressly pre-empts States from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U. S. C. §1324a(h)(2) (emphasis added). But it leaves States free to impose criminal sanctions on the employees themselves.
Despite the lack of any conflict between the ordinary meaning of the Arizona law and that of the federal laws at issue here, the Court holds that various provisions of the Arizona law are pre-empted because they “stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, supra, at 67. I have explained that the “purposes and objectives” theory of implied pre-emption is inconsistent with the Constitution because it invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text. See Wyeth, 555 U. S., at 604 (opinion concurring in judgment); see also Williamson v. Mazda Motor of America, Inc., 562 U. S. ___, ___–___ (2011) (opinion concurring in judgment) (slip op., at 2–3); Haywood v. Drown, 556 U. S. 729, 767 (2009) (dissenting opinion). Under the Supremacy Clause, pre-emptive effect is to be given to congressionally enacted laws, not to judicially divined legislative purposes. See Wyeth, supra, at 604 (Thomas, J., concurring in judgment). Thus, even assuming the existence of some tension between Arizona’s law and the supposed “purposes and objectives” of Congress, I would not hold that any of the provisions of the Arizona law at issue here are pre-empted on that basis.
SUPREME COURT OF THE UNITED STATES
ARIZONA, et al., PETITIONERS v. UNITED STATES
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 25, 2012]
Justice Scalia, concurring in part and dissenting in part.
The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938) . Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.I
As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations stated:
“The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares violate it, incurs the penalty decreed to render it effectual.” The Law of Nations, bk. II, ch. VII, §94, p. 309 (B. Kapossy & R. Whatmore eds. 2008).
See also I R. Phillimore, Commentaries upon International Law, pt. III, ch. X, p. 233 (1854) (“It is a received maxim of International Law that, the Government of a State may prohibit the entrance of strangers into the country”). 1
There is no doubt that “before the adoption of the constitution of the United States” each State had the authority to “prevent [itself] from being burdened by an influx of persons.” Mayor of New York v. Miln, 11 Pet. 102, 132–133 (1837). And the Constitution did not strip the States of that authority. To the contrary, two of the Constitution’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. 42, pp. 269–271 (C. Rossiter ed. 1961) (J. Madison). The Articles of Confederation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.” Articles of Confederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and Immunities Clause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, §2, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” The Federalist No. 42, supra, at 271; see Art. I, §8, cl. 4. In other words, the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it.
Two other provisions of the Constitution are an acknowledgment of the States’ sovereign interest in protecting their borders. Article I provides that “[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws.” Art. I, §10, cl. 2 (emphasis added). This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods. A later portion of the same section provides that “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §10, cl. 3 (emphasis added). This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory.
Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost Century of American Immigration (1776–1875), 93 Colum. L. Rev. 1833, 1835, 1841–1880 (1993). State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration. 2 Id., at 1883.
In fact, the controversy surrounding the Alien and Sedition Acts involved a debate over whether, under the Constitution, the States had exclusive authority to enact such immigration laws. Criticism of the Sedition Act has become a prominent feature of our First Amendment jurisprudence, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254 –276 (1964), but one of the Alien Acts 3 also aroused controversy at the time:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States . . . .” An Act concerning Aliens, 1Stat. 570, 570–571.
The Kentucky and Virginia Resolutions, written in denunciation of these Acts, insisted that the power to exclude unwanted aliens rested solely in the States. Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens.” Kentucky Resolutions of 1798, reprinted in J. Powell, Languages of Power: A Sourcebook of Early American Constitutional History 131 (1991). Madison’s Virginia Resolutions likewise contended that the Alien Act purported to give the President “a power nowhere delegated to the federal government.” Virginia Resolutions of 1798, reprinted in Powell, supra, at 134 (emphasis omitted). Notably, moreover, the Federalist proponents of the Act defended it primarily on the ground that “[t]he removal of aliens is the usual preliminary of hostility” and could therefore be justified in exercise of the Federal Government’s war powers. Massachussets Resolutions in Reply to Virginia, reprinted in Powell, supra, at 136.
In Mayor of New York v. Miln, this Court considered a New York statute that required the commander of any ship arriving in New York from abroad to disclose “the name, place of birth, and last legal settlement, age and occupation . . . of all passengers . . . with the intention of proceeding to the said city.” 11 Pet., at 130–131. After discussing the sovereign authority to regulate the entrance of foreigners described by De Vattel, the Court said:
“The power . . . of New York to pass this law having undeniably existed at the formation of the constitution, the simply inquiry is, whether by that instrument it was taken from the states, and granted to congress; for if it were not, it yet remains with them.” Id., at 132.
And the Court held that it remains. Id., at 139.II
One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for immigration policy has shifted from the States to the Federal Government. Congress exercised its power “[t]o establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1Stat. 103. But with the fleeting exception of the Alien Act, Congress did not enact any legislation regulating immigration for the better part of a century. In 1862, Congress passed “An Act to prohibit the ‘Coolie Trade’ by American Citizens in American Vessels,” which prohibited “procuring [Chinese nationals] . . . to be disposed of, or sold, or transferred, for any term of years or for any time whatever, as servants or apprentices, or to be held to service or labor.” 12Stat. 340. Then, in 1875, Congress amended that act to bar admission to Chinese, Japanese, and other Asian immigrants who had “entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes.” An act supplementary to the acts in relation to immigration, ch. 141, 18Stat. 477. And in 1882, Congress enacted the first general immigration statute. See An act to regulate Immigration, 22Stat. 214. Of course, it hardly bears mention that Federal immigration law is now extensive.
I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States. As this Court has said, it is an “ ‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’ ” Fong Yue Ting v. United States, 149 U. S. 698, 705 (1893) (quoting Ekiu v. United States, 142 U. S. 651, 659 (1892) ). That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”
In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.
Possibility (1) need not be considered here: there is no federal law prohibiting the States’ sovereign power to exclude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the Court’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition. We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude. Like elimination of the States’ other inherent sovereign power, immunity from suit, elimination of the States’ sovereign power to exclude requires that “Congress . . . unequivocally expres[s] its intent to abrogate,” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55 (1996) (internal quotation marks and citation omitted). Implicit “field preemption” will not do.
Nor can federal power over illegal immigration be deemed exclusive because of what the Court’s opinion solicitously calls “foreign countries[ ’] concern[s] about the status, safety, and security of their nationals in the United States,” ante, at 3. The Constitution gives all those on our shores the protections of the Bill of Rights—but just as those rights are not expanded for foreign nationals because of their countries’ views (some countries, for example, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy. Four years ago, for example, the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals because the international community, and even an opinion of the International Court of Justice, disapproved them. See Medellín v. Texas, 552 U. S. 491 (2008) . We rejected that request, as we should reject the Executive’s invocation of foreign-affairs considerations here. Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder.
What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law—whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority. I proceed to consider the challenged provisions in detail.§2(B)
“For any lawful stop, detention or arrest made by a law enforcement official . . . in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released. . . .” S. B. 1070, §2(B), as amended, Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012).
The Government has conceded that “even before Section 2 was enacted, state and local officers had state-law authority to inquire of DHS [the Department of Homeland Security] about a suspect’s unlawful status and otherwise cooperate with federal immigration officers.” Brief for United States 47 (citing App. 62, 82); see also Brief for United States 48–49. That concession, in my view, obviates the need for further inquiry. The Government’s conflict-pre-emption claim calls on us “to determine whether, under the circumstances of this particular case, [the State’s] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67 (1941) (emphasis added). It is impossible to make such a finding without a factual record concerning the manner in which Arizona is implementing these provisions—something the Government’s pre-enforcement challenge has pretermitted. “The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” United States v. Salerno, 481 U. S. 739, 745 (1987) . And on its face, §2(B) merely tells state officials that they are authorized to do something that they were, by the Government’s concession, already authorized to do.
The Court therefore properly rejects the Government’s challenge, recognizing that, “[a]t this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2B will be construed in a way that creates a conflict with federal law.” Ante, at 23. Before reaching that conclusion, however, the Court goes to great length to assuage fears that “state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status.” Ante, at 22. Of course, any investigatory detention, including one under §2(B), may become an “unreasonable . . . seizur[e],” U. S. Const., Amdt. IV, if it lasts too long. See Illinois v. Caballes, 543 U. S. 405, 407 (2005) . But that has nothing to do with this case, in which the Government claims that §2(B) is pre-empted by federal immigration law, not that anyone’s Fourth Amendment rights have been violated. And I know of no reason why a protracted detention that does not violate the Fourth Amendment would contradict or conflict with any federal immigration law.§6
“A peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States.” S. B. 1070, §6(A)(5), Ariz. Rev. Stat. Ann. §13–3883(A)(5) (West Supp. 2011).
This provision of S. B. 1070 expands the statutory list of offenses for which an Arizona police officer may make an arrest without a warrant. See §13–3883. If an officer has probable cause to believe that an individual is “removable” by reason of a public offense, then a warrant is not required to make an arrest. The Government’s primary contention is that §6 is pre-empted by federal immigration law because it allows state officials to make arrests “without regard to federal priorities.” Brief for United States 53. The Court’s opinion focuses on limits that Congress has placed on federal officials’ authority to arrest removable aliens and the possibility that state officials will make arrests “to achieve [Arizona’s] own immigration policy” and “without any input from the Federal Government.” Ante, at 17.
Of course on this pre-enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy (unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable). As Arizona points out, federal law expressly provides that state officers may “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” 8 U. S. C. §1357(g)(10)(B); and “cooperation” requires neither identical efforts nor prior federal approval. It is consistent with the Arizona statute, and with the “cooperat[ive]” system that Congress has created, for state officials to arrest a removable alien, contact federal immigration authorities, and follow their lead on what to do next. And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” ante, at 18. The State’s detention does not represent commencement of the removal process unless the Federal Government makes it so.
But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona.
The Court quotes 8 U. S. C. §1226(a), which provides that, “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Section 1357(a)(2) also provides that a federal immigration official “shall have power without warrant . . . to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any [federal immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” But statutory limitations upon the actions of federal officers in enforcing the United States’ power to protect its borders do not on their face apply to the actions of state officers in enforcing the State’s power to protect its borders. There is no more reason to read these provisions as implying that state officials are subject to similar limitations than there is to read them as implying that only federal officials may arrest removable aliens. And in any event neither implication would constitute the sort of clear elimination of the States’ sovereign power that our cases demand.
The Court raises concerns about “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Ante, at 17. But we have no license to assume, without any support in the record, that Arizona officials would use their arrest authority under §6 to harass anyone. And it makes no difference that federal officials might “determine [that some unlawfully present aliens] should not be removed,” ibid. They may well determine not to remove from the United States aliens who have no right to be here; but unless and until these aliens have been given the right to remain, Arizona is entitled to arrest them and at least bring them to federal officials’ attention, which is all that §6 necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.)
The Government complains that state officials might not heed “federal priorities.” Indeed they might not, particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona. The State’s whole complaint—the reason this law was passed and this case has arisen—is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition.§3
“In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 [U. S. C.] §1304(e) or §1306(a).” S. B. 1070, §3(A), as amended, Ariz. Rev. Stat. Ann. §13–1509(A).
It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinctively federal interest, such as protection of the dignity of the national flag, see Halter v. Nebraska, 205 U. S. 34 (1907) , or protection of the Federal Government’s ability to recruit soldiers, Gilbert v. Minnesota, 254 U. S. 325 (1920) . “[T]he State is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.” Id., at 331 (internal quotation marks omitted). Much more is that so when, as here, the State is protecting its own interest, the integrity of its borders. And we have said that explicitly with regard to illegal immigration: “Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.” Plyler v. Doe, 457 U. S. 202 , n. 23 (1982).
The Court’s opinion relies upon Hines v. Davidowitz, supra. Ante, at 9–10. But that case did not, as the Court believes, establish a “field preemption” that implicitly eliminates the States’ sovereign power to exclude those whom federal law excludes. It held that the States are not permitted to establish “additional or auxiliary” registration requirements for aliens. 312 U. S., at 66–67. But §3 does not establish additional or auxiliary registration requirements. It merely makes a violation of state law the very same failure to register and failure to carry evidence of registration that are violations of federal law. Hines does not prevent the State from relying on the federal registration system as “an available aid in the enforcement of a number of statutes of the state applicable to aliens whose constitutional validity has not been questioned.” Id., at 75–76 (Stone, J., dissenting). One such statute is Arizona’s law forbidding illegal aliens to collect unemployment benefits, Ariz. Rev. Stat. Ann. §23–781(B) (West 2012). To enforce that and other laws that validly turn on alien status, Arizona has, in Justice Stone’s words, an interest in knowing “the number and whereabouts of aliens within the state” and in having “a means of their identification,” 312 U. S., at 75. And it can punish the aliens’ failure to comply with the provisions of federal law that make that knowledge and identification possible.
In some areas of uniquely federal concern—e.g., fraud in a federal administrative process (Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341 (2001) ) or perjury in violation of a federally required oath (In re Loney, 134 U. S. 372 (1890) )—this Court has held that a State has no legitimate interest in enforcing a federal scheme. But the federal alien registration system is certainly not of uniquely federal interest. States, private entities, and individuals rely on the federal registration system (including the E-Verify program) on a regular basis. Arizona’s legitimate interest in protecting (among other things) its unemployment-benefits system is an entirely adequate basis for making the violation of federal registration and carry requirements a violation of state law as well.
The Court points out, however, ante, at 11, that in some respects the state law exceeds the punishments prescribed by federal law: It rules out probation and pardon, which are available under federal law. The answer is that it makes no difference. Illegal immigrants who violate §3 violate Arizona law. It is one thing to say that the Supremacy Clause prevents Arizona law from excluding those whom federal law admits. It is quite something else to say that a violation of Arizona law cannot be punished more severely than a violation of federal law. Especially where (as here) the State is defending its own sovereign interests, there is no precedent for such a limitation. The sale of illegal drugs, for example, ordinarily violates state law as well as federal law, and no one thinks that the state penalties cannot exceed the federal. As I have discussed, moreover, “field preemption” cannot establish a prohibition of additional state penalties in the area of immigration.
Finally, the Government also suggests that §3 poses an obstacle to the administration of federal immigration law, see Brief for United States 31–33, but “there is no conflict in terms, and no possibility of such conflict, [if] the state statute makes federal law its own,” California v. Zook, 336 U. S. 725, 735 (1949) .
It holds no fear for me, as it does for the Court, that “[w]ere §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.” Ante, at 11. That seems to me entirely appropriate when the State uses the federal law (as it must) as the criterion for the exercise of its own power, and the implementation of its own policies of excluding those who do not belong there. What I do fear—and what Arizona and the States that support it fear—is that “federal policies” of nonenforcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue (ante, at 6) but leaves unremedied in its disposition.§5(C)
“It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” S. B. 1070, §5(C), as amended, Ariz. Rev. Stat. Ann. §13–2928(C).
Here, the Court rightly starts with De Canas v. Bica, 424 U. S. 351 (1976) , which involved a California law providing that “ ‘[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.’ ” Id., at 352 (quoting California Labor Code Ann. §2805(a)). This Court concluded that the California law was not pre-empted, as Congress had neither occupied the field of “regulation of employment of illegal aliens” nor expressed “the clear and manifest purpose” of displacing such state regulation. Id., at 356–357 (internal quotation marks omitted). Thus, at the time De Canas was decided, §5(C) would have been indubitably lawful.
The only relevant change is that Congress has since enacted its own restrictions on employers who hire illegal aliens, 8 U. S. C. §1324a, in legislation that also includes some civil (but no criminal) penalties on illegal aliens who accept unlawful employment. The Court concludes from this (reasonably enough) “that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment,” ante, at 13. But that is not the same as a deliberate choice to prohibit the States from imposing criminal penalties. Congress’s intent with regard to exclusion of state law need not be guessed at, but is found in the law’s express pre-emption provision, which excludes “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens,” §1324a(h)(2) (emphasis added). Common sense, reflected in the canon expressio unius est exclusio alterius, suggests that the specification of pre-emption for laws punishing “those who employ” implies the lack of pre-emption for other laws, including laws punishing “those who seek or accept employment.”
The Court has no credible response to this. It quotes our jurisprudence to the effect that an “express pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles.” Ante, at 14 (quoting Geier v. American Honda Motor Co., 529 U. S. 861, 869 (2000) (internal quotation marks omitted)). True enough—conflict preemption principles. It then goes on say that since “Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment,” “[i]t follows that a state law to the contrary is an obstacle to the regulatory system Congress chose.” Ante, at 15. For “ ‘[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn.’ ” Ibid. (quoting Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 503 (1988) ). All that is a classic description not of conflict pre-emption but of field pre-emption, which (concededly) does not occur beyond the terms of an express pre-emption provision.
The Court concludes that §5(C) “would interfere with the careful balance struck by Congress,” ante, at 15, (another field pre-emption notion, by the way) but that is easy to say and impossible to demonstrate. The Court relies primarily on the fact that “[p]roposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting [the Immigration Reform and Control Act of 1986 (IRCA)],” “[b]ut Congress rejected them.” Ante, at 14. There is no more reason to believe that this rejection was expressive of a desire that there be no sanctions on employees, than expressive of a desire that such sanctions be left to the States. To tell the truth, it was most likely expressive of what inaction ordinarily expresses: nothing at all. It is a “naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional rejection of what the bill contained.” Crosby v. National Foreign Trade Council, 530 U. S. 363, 389 (2000) (Scalia, J., concurring in judgment) (internal quotation marks and alterations omitted).* * *
The brief for the Government in this case asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.” Brief for United States 21. Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. Despite Congress’s prescription that “the immigration laws of the United States should be enforced vigorously and uniformly,” IRCA §115, 100Stat. 3384, Arizona asserts without contradiction and with supporting citations:
“[I]n the last decade federal enforcement efforts have focused primarily on areas in California and Texas, leaving Arizona’s border to suffer from comparative neglect. The result has been the funneling of an increasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Nation’s illegal border crossings occurred in Arizona.” Brief for Petitioners 2–3 (footnote omitted).
Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding?
But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. 4 If an individual unlawfully present in the United States
“• came to the United States under the age of sixteen;
“• has continuously resided in the United States for at least five years . . . ,
“• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran . . . ,
“• has not been convicted of a [serious crime]; and
“• is not above the age of thirty,” 5
then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” 6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. 7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.
The Court opinion’s looming specter of inutterable horror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?
A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.” 1 Records of the Federal Convention 19 (M. Farrand ed. 1911) (statement of Edmund Randolph). Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously guarded—as reflected in the innumerable proposals that never left Independence Hall. Now, imagine a provision—perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.
As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.
Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.
1 Many of the 17th-, 18th-, and 19th-century commentators maintained that states should exclude foreigners only for good reason. Pufendorf, for example, maintained that states are generally expected to grant “permanent settlement to strangers who have been driven from their former home,” though acknowledging that, when faced with the prospect of mass immigration, “every state may decide after its own custom what privilege should be granted in such a situation.” 2 Of the Law of Nature and Nations, bk. III, ch. III, §10, p. 366 (C. Oldfather & W. Oldfather eds. 1934). See generally Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 83–87 (2002). But the authority to exclude was universally accepted as inherent in sovereignty, whatever prudential limitations there might be on its exercise.
2 E.g., Va. Code Tit. 54, ch. 198, §39 (1849) (“If a master of a vessel or other person, knowingly, import or bring into this state, from any place out of the United States, any person convicted of crime . . . he shall be confined in jail for three months, and be fined one hundred dollars”).
3 There were two Alien Acts, one of which dealt only with enemyaliens. An Act respecting Alien Enemies, 1Stat. 577.
4 Preston & Cushman, Obama to Permit Young Migrants to Remain in U. S., N. Y. Times, June 16, 2012, p. A1.
5 Memorandum from Janet Napolitano, Secretary of Homeland Security, to David V. Aguilar, Acting Commissioner, U. S. Customs and Border Protection; Alejandro Mayorkas, Director, U. S. Citizenshipand Immigration Services; and John Morton, Director, U. S. Immigra-tion and Customs Enforcement, p. 1 (June 15, 2012), online at http://www.dhs.gov (all Internet materials as visited June 22, 2012, and available in Clerk of Court’s case file).
6 Id., at 2.
7 Remarks by the President on Immigration (June 15, 2012), online at http://www.whitehouse.gov.
ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We'll hear argument this morning in Case 11-182, Arizona v. the United States.
Mr. Clement: Mr. Chief Justice, and may it please the Court:
The State of Arizona bears a disproportionate share of the costs of illegal immigration.
In addressing those costs, Arizona borrowed the Federal standards as its own, and attempted to enlist State resources in the enforcement of the uniform Federal immigration laws.
Notwithstanding that, the United States took the extraordinary step of seeking a preliminary injunction to enjoin the statute as impliedly preempted on its face before it took effect.
The Ninth Circuit agreed with respect to four provisions, but only by inverting fundamental principles of federalism.
The Ninth Circuit essentially demanded that Arizona point to specific authorization in Federal statute for its approach.
But that gets matters backwards.
A State does not need to point to Federal authorization for its enforcement efforts.
Rather, the burden is on the parties seeking to preempt a duly enacted State law to point to some provision in statutory law that does the preempting.
Now, the United States can't really do that here, and the reason is obvious.
There are multiple provisions of the Federal immigration law that go out of their way to try to facilitate State and local efforts to communicate with Federal immigration officials in order to ascertain the immigration status of individuals.
So, for example, 1373(c) specifically requires that Federal immigration officials shall respond to inquiries from State and local officials about somebody's immigration status.
1373(a) goes even further.
That provision says that no Federal agency or officer may prohibit or in any way restrict the ability of State and local officers to communicate with Federal immigration officers to ascertain somebody's immigration status.
Indeed, if the DHS had--
Justice Sonia Sotomayor: Mr. Clement--
Mr. Clement: --Yes.
Justice Sonia Sotomayor: --could I interrupt, and turning to 2(B), could you tell me what the State's view is -- the Government proposes that it should be read on its face one way, and I think the State is arguing that there's a narrower way to read it.
But am I to understand that under the State's position in this action, the only time that the inquiry about the status of an individual rises is after they've had probable cause to arrest that individual for some other crime?
Mr. Clement: That's exactly right, Justice Sotomayor.
So this only operates when somebody's been essentially stopped for some other infraction, and then at that point, if there's reasonable suspicion to try to identify immigration status, then that can happen.
Of course, one of the things that--
Justice Sonia Sotomayor: Can I -- can I--
Mr. Clement: --Sure.
Justice Sonia Sotomayor: --just stop you there just one moment?
That's what I thought.
So presumably, I think your argument is, that under any circumstance, a police officer would have the discretion to make that call.
Seems to me that the issue is not about whether you make the call or not, although the Government is arguing that it might be, but on how long you detain the individual, meaning -- as I understand it, when individuals are arrested and held for other crimes, often there's an immigration check that most States do without this law.
And to the extent that the government wants to remove that individual, they put in a warrant of detainer.
This process is different.
How is it different?
Mr. Clement: Well, it's different in one important respect, Justice Sotomayor, and that's why I don't think that the issue that divides the parties is only the issue of how long you can detain somebody.
Because I think the Federal Government takes the rather unusual position that even though these stops and these inquiries, if done on an ad hoc basis, become preempted if they're done on a systematic basis--
Justice Sonia Sotomayor: No, I understand that's their argument.
I can question them about that.
Mr. Clement: --Okay.
But -- so that's--
Justice Sonia Sotomayor: But I want to get to how -- assuming your position, that doing it on a -- there's nothing wrong with doing it as it's been done in the past.
Whenever anyone is detained, a call could be made.
What I see as critical is the issue of how long, and under -- and when is the officer going to exercise discretion to release the person?
Mr. Clement: --And with respect, I don't think section 2(B) really speaks to that, which is to say, I don't think section 2(B) says that the systematic inquiry has to take any longer than the ad hoc inquiry.
And, indeed, section 2 -- in one of its provisions -- specifically says that it has to be implemented in a way that's consistent with Federal, both immigration law and civil rights law.
Justice Sonia Sotomayor: What happens if -- this is the following call -- the call to the -- to the Federal Government.
Yes, he's an illegal alien.
No, we don't want to detain him.
What does the law say, the Arizona law say, with respect to releasing that individual?
Mr. Clement: --Well, I don't know that it speaks to it in specific terms, but here's what I believe would happen, which is to say, at that point, then, the officer would ask themselves whether there's any reason to continue to detain the person for State law purposes.
I mean, it could be that the original offense that the person was pulled over needs to be dealt with or something like that.
Justice Sonia Sotomayor: I'm putting all of this outside of--
Mr. Clement: But -- but if what we're talking about is simply what happens then for purposes of the Federal immigration consequences, the answer is nothing.
The individual at that point is released.
And that, I think, can be very well illustrated by section 6 -- I don't want to change the subject unnecessarily, but there is arrest authority for somebody who has committed a public offense, which means that it's a crime in another State and in Arizona, but the person can't be arrested for that offense presumably because they have already served their sentence for the offense; and then there is new arrest authority given to the officer to hold that person if they are deportable for that offense.
Now, I think in that circumstance, it's very clear what would happen, is an inquiry would be made to the Federal officials that would say, do you want us to transfer this person to your custody or hold this person until you can take custody?
And if the answer is no, then that's the end of it.
That individual is released, because there is no independent basis in that situation for the State officer to continue to detain the individual at all.
Justice Ruth Bader Ginsburg: But how would the State officer know if the person is removable?
I mean, that's sometimes a complex inquiry.
Mr. Clement: Well, Justice Ginsburg, I think there's two answers to that.
One is, you're right, sometimes it's a complex inquiry, sometimes it's a straightforward inquiry.
It could be murder, it could be a drug crime.
But I think the practical answer to the question is by hypothesis there is going to be inquiry made to the Federal immigration authorities, either the Law Enforcement Support Center or a 287(g) officer.
And presumably, as a part of that inquiry, they can figure out whether or not this is a removable offense or at least a substantially likely removable offense.
Justice Anthony Kennedy: If it takes two weeks to make that determination, can the alien be held by the State for that whole period of time--
Mr. Clement: Oh, I don't--
Justice Anthony Kennedy: --just under section 6?
Mr. Clement: --I don't think so, Your Honor, and I think that, you know, what -- in all of these provisions, you have the Fourth Amendment backing up the limits, and I think so--
Justice Anthony Kennedy: What -- what would be the standard?
You're the attorney for the alien, he -- they are going to hold him for two weeks until they figure out whether this is a removable offense, and you say, under the Fourth Amendment, you cannot hold for -- what?
More than a reasonable time or--
Mr. Clement: --Yes, ultimately, it's a reasonable inquiry.
And I think that under these circumstances what we know from the record here is that generally the immigration status inquiry is something that takes 10 or 11 minutes.
I mean, so it's not -- we're not talking about something -- or no more than 10 if it's a 287(g) officer and roughly 11 minutes on average if it's the Law Enforcement Support Center.
Justice Stephen G. Breyer: How do they have -- well, the same question, but -- but I'm trying to think of examples.
Example one is the person is arrested.
Now, it says any person who is arrested shall have the person's immigration status determined before the person is released.
So I wonder if they have arrested a citizen, he's Hispanic-looking, he was jogging, he has a backpack, he has water in it and Pedialyte, so they think, oh, maybe this is an illegal person.
It happens he's a citizen of New Mexico, and so the driver's license doesn't work.
And now they put him in jail.
And are you -- can you represent to us -- I don't know if you can or not -- can you represent to us he will not stay in jail in detention for a significantly longer period of time than he would have stayed in the absence of section 2(B)?
Do you want to represent that or not?
Mr. Clement: I don't want to represent that--
Justice Stephen G. Breyer: All right.
Now, if you cannot represent that -- and I'm not surprised you don't want to -- I mean, I don't know--
Mr. Clement: --Sure, sure.
But what I can represent--
Justice Stephen G. Breyer: --What?
Mr. Clement: --is that he's not going to be detained any longer than the Fourth Amendment allows.
Justice Stephen G. Breyer: Oh, fine.
Mr. Clement: And--
Justice Stephen G. Breyer: But the Fourth Amendment -- for -- I mean, that's another question.
I don't know how long the Fourth Amendment allows.
I don't know on that.
There probably is a range of things.
But we do know that a person ordinarily, for this crime, X, would have been released after a day.
Oh, you know, the Fourth Amendment would have allowed more.
So now what I want to know is what in practice will happen?
From your representation, I think that there will be a significant number of people -- some of whom won't be arrested; it takes 11 minutes for some.
For citizens, it might take two hours, it might take two days.
There will be a significant number of people who will be detained at the stop, or in prison, for a significantly longer period of time than in the absence of 2(B).
Is that a fair conclusion?
Mr. Clement: --I don't think it is, Justice Breyer, and here's why it's not.
Because even though there certainly are situations where State authorities will arrest somebody and then release them relatively rapidly, they generally don't release somebody until they can nail down their identity and whether or not they are likely to come to a court hearing at a subsequent--
Justice Antonin Scalia: Anyway, if this is a problem, is it an immigration law problem?
Mr. Clement: --It--
Justice Antonin Scalia: Or is it a Fourth Amendment problem?
Mr. Clement: --Justice Scalia, it is neither--
Justice Antonin Scalia: Is the Government's attack on this that it violates the Fourth Amendment?
Mr. Clement: --No, of course the Federal Government, that also has a lot of immigration arrests that are subject to the Fourth Amendment, is not making a Fourth Amendment claim here.
And it's neither an immigration law concern or something that should be the basis for striking down a statute on its face.
Justice Stephen G. Breyer: That's a different argument--
Mr. Clement: But I do want to -- but I do want to be responsive and make the point that I think the factual premise that this is going to -- 2(B) is going to lead to the elongation of a lot of arrests is not true.
Justice Stephen G. Breyer: --All right.
Can I make the following statement in the opinion, and you will say that's okay.
Imagine -- this is imaginary.
"We interpret" -- imagine --
"we interpret Section 2(B) as not authorizing or requiring the detention of any individual under 2(B), either at the stop or in prison, for a significantly longer period of time than that person would have been detained in the absence of 2(B). "
Can I make that statement in an opinion, and you'll say, that's right?
Mr. Clement: I think what you could say--
Justice Stephen G. Breyer: Can I say that?
Mr. Clement: --I don't think you can say just that.
Justice Stephen G. Breyer: No.
Mr. Clement: I think you can say something similar, though.
I think you probably could say, look, this is a facial challenge.
The statute's never gone into effect.
We don't anticipate that Section 2(B) would elongate in a significant number of cases the detention or the arrest.
I think you could say that.
And the reason is, as I indicated, it's something that happens even without this law that, when you arrest somebody, and there are some offenses that are -- you can arrest and release under State law, but before you release the individual, you generally want to ascertain that that individual is going to show up at the hearing, and that's what really distinguishes those cases where there's arrest and release from those cases where there's arrest and you book somebody.
Now, here's the other reason why I don't think factually this is going to elongate things.
Because already in a significant number of booking facilities in Arizona, you already have the process that people are systematically run through immigration checks when they are booked as part of the booking process.
That's reflected in the record here in the Maricopa County system, that that's done by a 287(g) officer as a matter of routine.
The Federal Government doesn't like this statute, but they are very proud of their Secure Communities program.
And their Secure Communities program also makes clear that everybody's that's booked at participating facilities is -- eventually has their immigration status checked.
And so I don't think that this immigration status check is likely to lead to a substantial elongation of the stops or the detentions.
Justice Sonia Sotomayor: --I want to make sure that I get a clear representation from you.
If on a call to the Federal agency, the agency says, we don't want to detain this alien, that alien will be released or -- unless it's under 6, is what you're telling me.
Or under 6, 3, or some -- one other of Arizona's immigration clauses.
Mr. Clement: --Exactly.
Obviously, if this is somebody who was going, you know, 60 miles an hour in a 20-mile-an-hour school zone or something, they may decide wholly apart from the immigration issues, that this is somebody they want to bring back to the station.
But for the purposes of once they make the contact with Federal immigration officials, if the Federal immigration officials say, look, we have no interest in removing this person, we have no interest in prosecuting this person under the Federal criminal provisions, then that's the end of the Federal case--
Justice Sonia Sotomayor: All right.
Then tell me--
Justice Antonin Scalia: You'll concede that the -- that the State has to accept within its borders all people who have no right to be there, that the Federal Government has no interest in removing?
Mr. Clement: --No, I don't accept that, Justice Scalia, but--
Justice Antonin Scalia: That's all the statute -- and you call up the Federal Government, and te Federal -- yes, he's an illegal immigrant, but that's okay with us.
Mr. Clement: --Well--
Justice Antonin Scalia: And the State has no power to close its borders to people who have no right to be there?
Mr. Clement: --Well, Justice Scalia, here's my response, which is all of this discussion, at least as I've understood it, has been about 2(B) and to a lesser extent 6.
Now, section 3 of the statute does provide an authority under State law to penalize somebody who has violated essentially the Federal registration requirement.
So if that's -- as to that provision, there would be a State authority, even under these hypotheticals, to take action with respect to the individual--
Justice Anthony Kennedy: --I think--
Mr. Clement: --but not with respect to the Federal--
Justice Anthony Kennedy: --I think Justice Scalia's question was the -- was the broader one, just as a theoretical matter.
Can we say, or do you take the position that a State must accept within its borders a person who is illegally present under Federal law?
Mr. Clement: --Well, and I think--
Justice Anthony Kennedy: And that is by reason of his alien--
Mr. Clement: --And I think my answer to that is no.
I think the reason my answer is no has more to do with our defense of section 3 and other provisions than it does with respect to the inquiry and arrest authority provisions, 2(B) and 6.
Justice Samuel Alito: Well, before you move on to the registration requirement, could I take you back to an example that's similar to the one that Justice Breyer was referring to.
Let's someone -- let's say someone who is a citizen and a resident of New Mexico, has a New Mexico driver's license, drives across the border, is stopped for speeding, not 60 miles an hour in a 20-mile zone, but 10 miles over the speed limit on an interstate.
And the officer, for some reason, thinks that this person may be an illegal alien.
How would that work out?
If you do the records check, you're not going to get anything back, right, because the person is a citizen?
So what -- where would the officer take it from there?
Mr. Clement: Well, if I can just kind of work back for a second.
I mean, obviously, it's a pretty unusual circumstance where somebody produces an out-of-state driver's license, and that doesn't dispel reasonable suspicion for the officer; but, I'll take the hypo--
Justice Samuel Alito: Why would it dispel reasonable suspicion if it's -- if the officer knows it's a state that issues driver's licenses to aliens who are not lawfully--
Mr. Clement: --And that might be a situation where that's the case, and then -- then it wouldn't dispel the reasonable suspicion.
But, say, in the average case, I think it would.
They would then go further.
And then they would then make the inquiry to the Federal officials.
And then if -- because of the fact that the individual actually is a citizen or something like that, then what would happen is at some point you'd get to the end of a permissible Terry stop, and the officer would release the individual.
Now, it might not be the end of the matter, because, of course, you know, they still have the name, they still have the ability to collect that information and try to continue the check as they move forward, taking down the information on the New Mexico driver's license.
But I think the important thing is that, you know, this statute doesn't authorize them to detain the individual, certainly beyond the -- the Fourth Amendment limits, and it really doesn't authorize them to do anything that the official couldn't do on an ad hoc basis without the statute.
Now it does do--
Justice Samuel Alito: --That may be the case, and I would like to ask General Verrilli about that; but, under the Fourth Amendment, presumably, if the officer can arrest, the state officer can arrest a person simply on the ground that the person is removable, which is what the Office of Legal Counsel opined some years ago, then presumably the officer could continue to detain that individual that I mentioned until they reached a point where the Terry stop becomes an arrest, at which time they would have to have probable cause.
But if they had probable cause to believe the person was removable, then they could hold the person, presumably, until the person's status was completely verified; isn't that correct?
Mr. Clement: --I think that's correct, Your Honor.
Now, as we read section 6, because there's a pre-existing definition of public offense in Arizona law, we don't think this is kind of the full Office of Legal Counsel situation, where you have broad arrest authority for removable individuals.
This is a relatively narrow slice of additional arrest authority that happens to give arrest authority for people that seem to fit the Federal government's priority, because it really is going to apply to criminal aliens.
But I don't -- I don't take any issue with what you're saying.
I do think, though, it's important to understand that 2(B) really doesn't give the officer an authority he didn't otherwise have.
It does do one thing that's very important, though, which it does have the effect of overriding local policies that actually forbade some officers from making those communications and -- because that's one of the primary effects of 2(B).
It just shows how difficult the government's preemption argument is here, because those kind of local policies are expressly forbidden by Federal statute.
1373(a) and 8 U.S.C. 1644 basically say that localities can't have those kind of sanctuary laws.
And so, one effect that 2(B) has is on a state level it basically says, look, you can't have local officers telling you not to make those inquiries, you must have those inquiries.
Justice Sonia Sotomayor: --Counsel, could -- does section 6 permit an officer to arrest an individual who has overstayed a visitor's visa by a day?
They are removable, correct?
Mr. Clement: They are removable.
I don't think they would have committed a public offense -- absent a very unusual situation, I don't think they would have committed a public offense under Arizona law.
So I don't think there actually would be arrest authority in that circumstance, as Justice Alito's question has--
Justice Sonia Sotomayor: What is the definition of public offense?
Mr. Clement: --A public offense definition -- it's actually -- it's a petition appendix -- well, I'm sorry.
The definition is basically that it's something that is a crime in another jurisdiction and also a crime in Arizona.
And so, what makes this kind of anomalous is, normally, if something is a crime in Arizona, there's arrest authority for that directly.
So what this really captures is people who have committed a crime are no longer arrestable for the crime because they have served their sentence or some other peculiarity, but they are nonetheless removable because of the crime.
Chief Justice John G. Roberts: Counsel, maybe it's a good time to talk about some of the other sections, in particular section 5(C).
Now, that does seem to expand beyond the Federal government's determination about the types of sanctions that should govern the employment relationship.
You talk about supply and demand.
The Federal government, of course, prohibits the employment, but it also imposes sanctions with respect to application for work.
And the State of Arizona, in this case, is imposing some significantly greater sanctions.
Mr. Clement: Well, it's certainly imposing different sanctions.
I mean, you know, it's a little bit -- kind of hard to weigh the difference between removability, which is obviously a pretty significant sanction for an alien, and the relatively modest penalties imposed by section 5(C).
But I take the premise that 5(C) does something that there is no direct analog in Federal law.
But I -- but that's not enough to get you to preemption, obviously.
And one of the things that makes 5(C), it seems to us, a weak case for preemption is that it only targets employment that is expressly forbidden by Federal law.
And so, then we look at, you know, essentially the government is reduced to arguing that because in 1986 when Congress passed IRCA, it only focused on the employer's side of the equation and didn't, generally speaking, impose restrictions on employees, that somehow they are going to draw a preemptive inference from that.
Justice Sonia Sotomayor: Counsel--
Justice Anthony Kennedy: --Would you agree that -- would you accept as a working hypothesis that we can begin with the general principle that the Hines v. Davidowitz language controls here, and we're going to ask our principal -- our primary function is to determine whether, under the circumstances of this particular case, Arizona's law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress?
Is that an acceptable test from your standpoint?
Mr. Clement: I think it's an acceptable test.
I mean, Justice Kennedy, you know, there obviously have been subsequent cases, including DeCanas and Whiting, that give additional shape and color to that test, but I don't have any -- I don't have any real quarrel with that test.
And here's why I don't think that--
Justice Anthony Kennedy: But then the government on this section is going to come and say, well, there may be -- this must be -- this -- the enforcement of this statute, as Arizona describes it, will be in considerable tension with our -- with our basic approach; isn't that what I'm going to hear from the government?
Mr. Clement: --It may be what you're going to hear, Justice Kennedy, but I don't think you just take the Federal government for its word on these things.
You know, it's interesting, in DeCanas itself, the SG said that that California statute was preempted.
And in DeCanas, this Court didn't say, well, you know, we've got this language from Hines, and we have the SG tell us it's preempted, that's good enough for us.
They went beyond that, and they looked hard.
And what they did is they established that this is an area where the presumption against preemption applies.
So, that seems one strike in our favor.
We have here a situation where there is an express preemption provision, and it -- it only addresses the employer's side of the ledger.
So the express preemption provision clearly doesn't apply here.
So the only thing they have is this inference--
Justice Sonia Sotomayor: --Well, for those of us for whom legislative history has some importance, there seems to be quite a bit of legislative history that the -- that the idea of punishing employees was raised, discussed and explicitly rejected.
Mr. Clement: --Sure.
Justice Sonia Sotomayor: The preemption language would be geared to what was decided to be punished.
It seems odd to think that the Federal government is deciding on employment sanctions and has unconsciously decided not to punish employees.
Mr. Clement: But, Justice Sotomayor, there's a big difference between Congress deciding not as a matter of Federal law to address employees with an additional criminal prohibition, and saying that that decision itself has preemptive effect.
That's a rather remarkable additional step.
And here's why I think, if you consider the legislative history, for those who do, it really supports us, because here's what Congress confronted.
I mean, they started thinking about this problem in 1971.
They passed IRCA in 1986.
At that point, here's the state of the world.
It's already unlawful, as a matter of Federal law, for the employee to get -- to have this unlawful work; and, if they seek this unlawful work, they are subject to removal for doing it.
In addition, Congress was told that most of the aliens who get this unlawful work are already here -- they illegally entered, so they are already subject to an independent criminal offense.
So at that point, Congress is facing a world where the employee is already subject to multiple prohibitions.
The employer is completely scot-free as a matter of Federal law.
And so at that point, in 1986, they address the employer's side of the equation, they have an express preemption provision that says nothing about any intent of preempting the employee's side of the ledger, and in that I don't think--
Justice Ruth Bader Ginsburg: They did provide -- I mean, your position was the Federal legislation regulates the supply side.
That leaves the demand side open.
But there is regulation, and the question is whether anything beyond that is inconsistent with the Federal -- it's not just that the person is removable, but if they use false documents in seeking work, that's a Federal crime.
So we have the -- what you call the supply side is regulated, but you want to regulate it more.
Mr. Clement: --Two quick responses, and then I'd like to save time for rebuttal, Justice Ginsburg.
The first is that if you look at what they regulate on the employee's side, it's really things that actually assist in regulating the employer's side.
Because what they are worried about is a fraudulent document that then is used essentially to trick the employer into employing somebody who shouldn't be employed.
The second thing is the more that you view IRCA as actually regulating part of the employee's side, then I think the more persuasive it is that the express preemption provision doesn't reach the employee's side of the equation.
Chief Justice John G. Roberts: We'll give you plenty of rebuttal time, but I'd like to hear what you have to say about section 3 before you sit down.
Mr. Clement: Thank you, Mr. Chief Justice.
I appreciate the opportunity to do that.
I do think as to section 3, the question is really -- it's a provision that is parallel to the Federal requirements and imposes the same punishments as the Federal requirement.
So it's generally not a fertile ground for preemption.
But of course, there are cases that find preemption even in those analogous circumstances.
They are the cases that the government is forced to rely on, cases like Buckman, cases like--
Justice Anthony Kennedy: Would double prosecutions be -- suppose that an alien were prosecuted under Federal law for violating basically the terms of 3, could the States then prosecute him as well?
Mr. Clement: --I think they could under general double jeopardy principles and the dual sovereignty doctrine.
Obviously, if that was a particular concern to you, that might be the basis as an as-applied challenge if somebody was already prosecuted under Federal law.
But, of course, this Court has confronted exactly that argument in California against Zook, where you had the statute of California that prohibited somebody operating as an interstate carrier without the ICC license.
It was raised, you know, you have to let just the Feds enforce that law.
Otherwise, there is a possibility of duplicative punishment, duplicative prosecution.
And this Court rejected that argument there.
Justice Ruth Bader Ginsburg: Mr. Clement, it seems that the -- I would think the largest hurdle for you is Hines which said, the registration scheme -- Congress enacted a complete registration scheme which the States cannot complement or impose even auxiliary regulations.
So I don't see the alien registration as a question of obstacle preemption, but appeal preemption that alien -- we don't want competing registration schemes.
We want the registration scheme to be wholly Federal.
Mr. Clement: Well, Justice Ginsburg, I think that's part of the reason why I accepted Justice Kennedy's characterization of the relevant language in Hines.
Because although there is some general discussion there of field preemption, when the Court actually states what its holding is, it does state it in terms of obstacle preemption.
And here's where I think there is a critical difference between what the Court had before it in Hines and what you have before you here.
In Hines, Pennsylvania passed its statute before Congress passed the alien registration statute.
So not surprisingly, you know, they weren't -- they weren't soothsayers in Pennsylvania.
They couldn't predict the future.
So when it got up here, there was a conflict between the provisions of the Pennsylvania registration law and the Federal registration law.
And this Court struck it down on that preemption basis.
Here it's quite different.
Arizona had before it the Federal statute.
It looked at the precise provisions in the Federal statute.
It adopted those standards as its own, and then it imposed parallel penalties for the violation of the State equivalent.
And so I think the right analysis is really the analysis that this Court laid out in its Whiting decision, which says that in these kinds of cases, what you look for is whether or not the State scheme directly interferes with the operation of the Federal scheme.
Justice Sonia Sotomayor: Can I ask you something?
Justice Samuel Alito: Well, in that--
Chief Justice John G. Roberts: Justice Alito.
Justice Samuel Alito: --In that regard, we are told that there are some important categories of aliens who can't obtain registration, cannot obtain Federal registration, and yet they are people that nobody would think should be removed.
I think someone with a pending asylum application would fall into that category.
How would section 3 apply there?
Mr. Clement: I think it probably wouldn't apply.
There's two provisions that might make it inapplicable.
The first question you'd ask is whether that individual in that category would be subject to prosecution under 1304 and 1306.
And if I understand, you know, the Government's position, there are certain people where, you know, they can't really get the registration document because of the narrow class that they are in.
And as I understand it, it is not a violation of either 1304 or 1306 to not get a registration document when you're somebody who can't get one.
So you're not liable for the willful failure to get a registration document, and when you don't have a registration document to carry, you don't run afoul of 1306 in the--
Justice Samuel Alito: Well, of course, if you've entered the country illegally, you can't get a registration.
Mr. Clement: --Well, sure.
Justice Samuel Alito: But--
Mr. Clement: But that's not the narrow class we were talking about.
Justice Samuel Alito: --I understand that.
I understand the distinction you're drawing, that you can't be prosecuted for lack of a registration if you couldn't have gotten a registration.
Mr. Clement: Well, if you're in -- no, if you're in the country lawfully, I mean, you can try to register.
And so somebody who enters illegally -- I mean, they are already guilty of one Federal misdemeanor by the illegal entry.
Justice Samuel Alito: Right.
Mr. Clement: But at the point that they stay 30 days and don't try to register, then that's an independent violation.
So maybe I need to fix what I said and say, look, if you're somebody who -- if you did go to register, would be told: You're fine, but we can't give you a registration document, then that individual is not subject to prosecution under the Federal statute, therefore, wouldn't be subject to prosecution under the State statute.
Chief Justice John G. Roberts: Thank you,--
ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE RESPONDENT
Mr. Verrilli Jr.: Mr. Chief Justice, and may it please the Court:
Chief Justice John G. Roberts: Before you get into what the case is about, I'd like to clear up at the outset what it's not about.
No part of your argument has to do with racial or ethnic profiling, does it?
I saw none of that in your brief.
Mr. Verrilli Jr.: --That's correct.
Chief Justice John G. Roberts: Okay.
So this is not a case about ethnic profiling.
Mr. Verrilli Jr.: We're not making any allegation about racial or ethnic profiling in the case.
Mr. Clement is working hard this morning to portray SB 1070 as an aid to Federal immigration enforcement.
But the very first provision of the statute declares that Arizona is pursuing its own policy of attrition through enforcement and that the provisions of this law are designed to work together to drive unlawfully present aliens out of the State.
That is something Arizona cannot do because the Constitution vests exclusive--
Justice Sonia Sotomayor: General, could you answer Justice Scalia's earlier question to your adversary?
He asked whether it would be the Government's position that Arizona doesn't have the power to exclude or remove -- to exclude from its borders a person who's here illegally.
Mr. Verrilli Jr.: --That is our position, Your Honor.
It is our position because the Constitution vests exclusive authority over immigration matters with the national government.
Justice Antonin Scalia: All that means, it gives authority over naturalization, which we've expanded to immigration.
But all that means is that the Government can set forth the rules concerning who belongs in this country.
But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power?
What does sovereignty mean if it does not include the ability to defend your borders?
Mr. Verrilli Jr.: Your Honor, the Framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations.
The national government, and not an individual State--
Justice Antonin Scalia: But it's still up to the national government.
Arizona is not trying to kick out anybody that the Federal government has not already said do not belong here.
And the Constitution provides -- even -- even with respect to the Commerce Clause --
"No State shall without the consent of Congress lay any imposts or duties on imports or exports except. "
"what may be absolutely necessary for executing its inspection laws. "
The Constitution recognizes that there is such a thing as State borders and the States can police their borders, even to the point of inspecting incoming shipments to exclude diseased material.
Mr. Verrilli Jr.: --But they cannot do what Arizona is seeking to do here, Your Honor, which is to elevate one consideration above all others.
Arizona is pursuing a policy that maximizes the apprehension of unlawfully present aliens so they can be jailed as criminals in Arizona unless the Federal Government agrees to direct its enforcement resources to remove the people that Arizona has identified.
Chief Justice John G. Roberts: Well, if that state does -- well, that's a question of enforcement priorities.
Well, let's say that the government had a different set of enforcement priorities, and their objective was to protect to the maximum extent possible the borders; and, so anyone who is here illegally, they want to know about and they want to do something about, in other words, different than the current policy.
Does that mean in that situation the Arizona law would not be preemptive?
Mr. Verrilli Jr.: I think the mandatory character of the Arizona law and the mandatory character of the obligations it imposes, especially as backed by this extraordinary provision in section 2(H), which imposes civil penalties of up to $5000 a day on any official in the State of Arizona who is not following section 2 or, as we read it, the rest of S.B. 1070, to the maximum extent possible, does create a conflict.
But I do think the most fundamental point about section 2 is to understand its relationship to the other provisions in the statute.
Section 2 is in the statute to identify the class of people who Arizona is then committed to prosecute under section 3 and, if they are employed, also under section 5.
Justice Samuel Alito: Well, I have the same question as the Chief Justice.
Suppose that the Federal Government changed its priorities tomorrow, and it said -- they threw out the ones they have now, and they said the new policy is maximum enforcement, we want to know about every person who's stopped or arrested, we want to -- we want to their immigration status verified.
Would the Arizona law then be un-preempted?
Mr. Verrilli Jr.: No, I think it's still a problem, Your Honor.
These decisions have to be made at the national level because it's the national government and not -- it's the whole country and not an individual state that pays the price--
Justice Antonin Scalia: Do you have any example where -- where enforcement discretion has the effect of preempting state action?
Mr. Verrilli Jr.: --Well, I think we should think about section 3 of the law, Your Honor.
I think it will help illustrate the point--
Justice Antonin Scalia: I'll point out another case of ours where we've said that essentially the preemption of state law can occur, not by virtue of the Congress preempting, but because the Executive doesn't want this law enforced so -- so rigorously, and that preempts the state from enforcing it vigorously.
Do we have any cases--
Mr. Verrilli Jr.: --I think the preemption here -- focusing for a moment on section 3 -- the preemption here flows from judgments of Congress, from the registration system that Congress set up in sections 1301 through 1306, from the decision of Congress in section 1103 in the law to vest the Secretary of DHS and the Attorney General with the authority to make the judgments about how this law is going to be enforced--
Justice Antonin Scalia: --Well, they do that with all Federal criminal statutes.
And you acknowledge that as a general matter, states can enforce Federal criminal law, which is always entrusted to the Attorney General.
Mr. Verrilli Jr.: --They can make -- they can engage in detention in support of the enforcement of Federal law.
That's what the OLC opinion from 2002 says.
It does not say that they can prosecute under Federal law and make their own decisions.
That's a far different matter.
And it really goes to the heart, I think, of what's wrong with section of this Act, in that--
Chief Justice John G. Roberts: Well, but you say that the Federal Government has to have control over who to prosecute, but I don't see how Section 2(B) says anything about that at all.
All it does is notify the Federal Government, here's someone who is here illegally, here's someone who is removable.
The discretion to prosecute for Federal immigration offenses rests entirely with the Attorney General.
Mr. Verrilli Jr.: --That's correct, but with respect to -- and let me address something fundamental about section 2.
That is true, but I think it doesn't get at the heart of the problem here.
Section 1 of this statute says that sections 2 and 3 and 5 are supposed to work together to achieve this policy of attrition through enforcement.
And so what section 2 does is identify a population that the State of Arizona is going to prosecute under section 3 and section 5.
Chief Justice John G. Roberts: Right.
So apart from section 3 and section 5, take those off the table, you have no objection to section 2.
Mr. Verrilli Jr.: We do, Your Honor; but, before I take 3 and 5 off the table, if I could make one more point about 3 and 5, please.
The -- I think -- because I think it's important to understand the dilemma that this puts the Federal Government in.
Arizona has got this population, and they've -- and they're by law committed to maximum enforcement.
And so the Federal Government's got to decide, are we going to take our resources, which we deploy for removal, and are we going to use them to deal with this population, even if it is to the detriment of our priorities--
Chief Justice John G. Roberts: Exactly.
The Federal Government has to decide where it's going to use its resources.
And what the state is saying, here are people who are here in violation of Federal law, you make the decision.
And if your decision is you don't want to prosecute those people, fine, that's entirely up to you.
That's why I don't see the problem with section 2(B).
Mr. Verrilli Jr.: --Here's the other half -- here's the other half of the equation, Mr. Chief Justice, which is that they say if you're not going to remove them, we are going to prosecute them.
And that means that the -- and I think this does get at the heart of why this needs to be an exclusive national power--
Chief Justice John G. Roberts: Only under section 3 and section 5.
Mr. Verrilli Jr.: --Yes, but those are -- but what you're talking about is taking somebody whose only offense is being unlawfully present in the country and putting them in jail for up to 6 months, or somebody who--
Chief Justice John G. Roberts: Well, let's say you're worried about--
Mr. Verrilli Jr.: --or like 30 days, forgive me; 6 months for employment.
Chief Justice John G. Roberts: --There you go.
For the notification, what could possibly be wrong if Arizona arrests someone, let's say for drunk driving, and their policy is you're going to stay in jail overnight no matter what, okay, what's wrong during that period by having the Arizona arresting officer say, I'm going to call the Federal agency and find out if this person is here illegally, because the Federal law says the Federal agency has to answer my question?
It seems an odd argument to say the Federal agency has to answer the state's question, but the state can't ask it.
Mr. Verrilli Jr.: Well, we're not saying the state can't ask it in any individual case.
We recognize that section--
Chief Justice John G. Roberts: You think there are individual cases in which the state can call the Federal Government and say: Is this person here illegally?
Mr. Verrilli Jr.: --Yes, certainly, but that doesn't make--
Chief Justice John G. Roberts: Okay.
So doesn't that defeat the facial challenge to the Act?
Mr. Verrilli Jr.: --No.
I don't think so, Mr. Chief Justice, because the -- I think the problem here is in that -- is in every circumstance as a result of section 2(B) of the law, backed by the penalties of section 2(H), the state official must pursue the priorities that the state has set, irrespective of whether they are helpful to or in conflict with the Federal priorities.
Justice Samuel Alito: Well, suppose that every -- suppose every law enforcement officer in Arizona saw things exactly the same way as the Arizona legislature.
And so, without any direction from the legislature, they all took it upon themselves to make these inquiries every time they stopped somebody or arrested somebody.
Would that be a violation of Federal law?
Mr. Verrilli Jr.: --No, it wouldn't be, Your Honor, because in that situation they would be free to be responsive to Federal priorities, if the Federal officials came back to them and said, look, we need to focus on gangs, we need to focus on this drug problem at the border--
Justice Samuel Alito: But what if they said, well, we don't care at your priorities are; we have our priorities, and our priority is maximum enforcement, and we're going to call you in every case?
It was all done on an individual basis, all the officers were individually doing it--
Mr. Verrilli Jr.: --Yes, well--
Justice Samuel Alito: --that would be okay?
Mr. Verrilli Jr.: --Well, if there's a -- if there's a state policy locked into law by statute, locked into law by regulation, then we have a problem.
If it's not--
Justice Sonia Sotomayor: General--
Mr. Verrilli Jr.: --I mean, the line is mandatory versus discretionary--
Justice Samuel Alito: That's what I can't understand because your argument -- you seem to be saying that what's wrong with the Arizona law is that the Arizona legislature is trying to control what its employees are doing, and they have to be free to disregard the desires of the Arizona legislature, for whom they work, and follow the priorities of the Federal Government, for whom they don't work.
Mr. Verrilli Jr.: --But they -- but with respect to immigration enforcement, and to the extent all they're doing is bringing people to the Federal Government's attention, they are cooperating in the enforcement of Federal law--
Justice Anthony Kennedy: But the hypothetical is that that's all the legislature is doing.
Mr. Verrilli Jr.: --Well, except I think, Justice Kennedy, the problem is that it's not cooperation if in every instance the officers in the state must respond to the priorities set by the state government and are not free to respond to the priorities of the Federal officials who are trying to enforce the law in the most effective manner possible.
Justice Sonia Sotomayor: --I'm sorry.
I'm a little confused.
General, I'm terribly confused by your answer.
And I don't know that you're focusing in on what I believe my colleagues are trying to get to.
Making the -- 2(B) has two components, as I see it.
Every person that's suspected of being an alien who's arrested for another crime -- that's what Mr. Clement says the statute means -- the officer has to pick up the phone and call -- and call the agency to find out if it's an illegal alien or not.
He tells me that unless there's another reason to arrest the person -- and that's 3 and 6, or any of the other provisions -- but putting those aside, we're going to stay just in 2(B), if the government says, we don't want to detain the person, they have to be released for being simply an illegal alien, what's wrong with that?
Mr. Verrilli Jr.: Well--
Justice Sonia Sotomayor: Taking out the other provisions, taking out any independent state-created basis of liability for being an illegal alien?
Mr. Verrilli Jr.: --I think there are three.
The first is the -- the Hines problem of harassment.
Now, we are not making an allegation of racial profiling; nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070.
It stands to reason that the legislature thought that that wasn't sufficient and there needed to be more.
And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully--
Justice Antonin Scalia: Sounds like racial profiling to me.
Mr. Verrilli Jr.: --And they're -- and given that what we're talking about is the status of being unlawfully present--
Justice Sonia Sotomayor: Do you have the statistics as to how many arrests there are and how many -- and what the -- percentage of calls before the statute?
Mr. Verrilli Jr.: --There is some evidence in the record, Your Honor.
It's the -- the Palmatier declaration, which is in the Joint Appendix, was the -- he was the fellow who used the run the Law Enforcement Support Center, which answers the inquiries.
That -- that declaration indicates that in fiscal year 2009, there were 80,000 inquiries and--
Justice Antonin Scalia: What does this have to do with Federal immigration law?
I mean, it may have to do with racial harassment, but I thought you weren't relying on that.
Mr. Verrilli Jr.: --The--
Justice Antonin Scalia: Are you objecting to harassing the -- the people who have no business being here?
Is that -- surely you're not concerned about harassing them.
They have been stopped anyway, and all you're doing is calling up to see if they are illegal immigrants or not.
So you must be talking about other people who have nothing to do with -- with our immigration laws.
Citizens and -- and other people, right?
Mr. Verrilli Jr.: --And other -- and other people lawfully present in the country, certainly, but this is--
Justice Antonin Scalia: But that has nothing to do with the immigration law--
Mr. Verrilli Jr.: --Hines is--
Justice Antonin Scalia: --which is what you're asserting preempts all of this activity.
Mr. Verrilli Jr.: --Hines identified this problem as harassment as -- as a central feature of preemption under the immigration laws because of the concern that the way this nation treats citizens of other countries is fundamental to our foreign relations.
And this is a--
Justice Stephen G. Breyer: Well, let's -- let me just go back, because I think -- I'm trying to get focused the question I think others are asking, and one way to focus it is the same question I asked Mr. Clement.
Think of 2(B), the first sentence.
Now, I can think -- I'm not saying they are right, but if that means you're going to hold an individual longer than you would have otherwise, I can think of some arguments that it is preempted, and some replies.
So keep that out of it.
Suppose that we were to say, that sentence, as we understand it, does not raise a constitutional problem as long as it is interpreted to mean that the policeman, irrespective of what answer he gets from ICE, cannot detain the person for longer than he would have done in the absence of this provision.
Now, in your view, is there any preemption exemption -- argument against -- any preemption argument against that sentence as I have just interpreted it?
I don't know what your answer is, and that's why I'm asking.
Mr. Verrilli Jr.: --Yes.
We would think it would ameliorate--
Justice Stephen G. Breyer: And if so, what?
Mr. Verrilli Jr.: --it would ameliorate the practical problem; but, there is still a structural problem here in that this is an effort to enforce Federal law.
And the -- under the Constitution, it's the President and the Executive Branch that are responsible for the enforcement of Federal law--
Chief Justice John G. Roberts: It is--
Mr. Verrilli Jr.: --and--
Chief Justice John G. Roberts: --It is not an effort to enforce Federal law.
It is an effort to let you know about violations of Federal law.
Whether or not to enforce them is still entirely up to you.
If you don't want to do this, you just tell the person at LESC -- if that's the right -- is that the right acronym?
Mr. Verrilli Jr.: --It is, Mr. Chief Justice.
Chief Justice John G. Roberts: --LESC, look, when somebody from Arizona calls, answer their question, and don't even bother to write it down.
I stopped somebody else, is he legal or illegal, let me check -- it's, oh, he's illegal.
Okay, thanks, good-bye.
I mean, why -- it is still your decision.
And if you don't want to know who is in this country illegally, you don't have to.
Mr. Verrilli Jr.: That's correct.
But the process of -- the process of cooperating to enforce the Federal immigration law starts earlier, and it starts with the process of making the decisions about who to -- who to stop, who to apprehend, who to check on.
And the problem -- the structural problem we have is that those decisions -- in the making of those decisions, Arizona officials are not free--
Chief Justice John G. Roberts: Under 2(B), the person is already stopped for some other reason.
He's stopped for going 60 in a 20.
He's stopped for drunk driving.
So that decision to stop the individual has nothing to do with immigration law at all.
All that has to do with immigration law is the -- whether or not they can ask the Federal Government to find out if this person is illegal or not, and then leave it up to you.
It seems to me that the Federal Government just doesn't want to know who is here illegally or not.
Mr. Verrilli Jr.: --No, I -- I don't think that's right.
I think we want to be able to cooperate and focus on our priorities.
And one thing that's instructive in that regard, Mr. Chief Justice, are the declarations put into the record by the police chiefs from Phoenix and Tucson, both of whom I think explain effectively why S.B. -- the section 2(B) obligation gets in the way of the mutual effort to -- to focus on the priorities of identifying serious criminals so that they can be removed from the country.
Justice Antonin Scalia: Anyway, what -- what's wrong about the states enforcing Federal law?
There is a Federal law against robbing Federal banks.
Can it be made a state crime to rob those banks?
I think it is.
Mr. Verrilli Jr.: I think it could, but I think that's quite--
Justice Antonin Scalia: But does the Attorney General come in and say, you know, we might really only want to go after the professional bank robbers?
If it's just an amateur bank robber, you know, we're -- we're going the let it go.
And the state's interfering with our -- with our whole scheme here because it's prosecuting all these bank robbers.
Mr. Verrilli Jr.: --Well, of course, no one would--
Justice Antonin Scalia: Now, would anybody listen to that argument?
Mr. Verrilli Jr.: --Of course not.
Justice Antonin Scalia: Of course not.
Mr. Verrilli Jr.: But this argument is quite different, Justice Scalia, because here what we are talking about is that Federal registration requirement in an area of dominant Federal concern, exclusive Federal concern with respect to immigration, who can be in the country, under what circumstances, and what obligations they have--
Justice Anthony Kennedy: Now, are you talking about now or--
Mr. Verrilli Jr.: --Yes.
Justice Anthony Kennedy: --or does this argument relate to 2 as well?
Mr. Verrilli Jr.: This is an argument about section 3.
Justice Samuel Alito: Well, could I ask you this about 2, before you move on to that?
How is a -- this is just a matter of information.
How can a state officer who stops somebody or who arrests somebody for a nonimmigration offense tell whether that person falls within the Federal removal priorities without making an inquiry to the Federal Government?
For example, I understand one of the priorities is people who have previously been removed, then that might be somebody who you would want to arrest and -- and remove.
But how can you determine that without making the -- the inquiry in the first place?
Mr. Verrilli Jr.: Well, in any individual case, that's correct.
You -- you would need to make the inquiry in the first place.
It won't always be correct, if you're arresting somebody based on probable cause that they have committed a serious crime, and they -- and they -- the inquiry into whether -- into their status will be enough to identify that person for priority--
Justice Samuel Alito: Well, what if they just, they stop somebody for a traffic violation, but they want to know whether this is a person who previously was removed and has come back or somebody who has just -- just within the last few hours possibly come -- well, let's just -- somebody who's previously been removed?
How can you know that without making an inquiry?
Mr. Verrilli Jr.: --Well, I think -- I think it's correct that you can't, but there is a -- there is difference, Justice Alito, I think, between the question of any individual circumstance and a mandatory policy backed by this civil fine, that you've got to make the inquiry in every case.
I mean, I think it's as though, if I can use an analogy, if you ask one of your law clerks to bring you the most important preemption cases from the last 10 years, and they rolled in the last -- the last hundred volumes of the U.S. Reports and said, well, they are in there.
That -- that doesn't make it--
Chief Justice John G. Roberts: What if they just rolled in Whiting?
That's a pretty good one.
Justice Stephen G. Breyer: Look, in the Federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the Federal Government.
And then it says that the Federal Government has -- any agency -- and then it says the Federal has an obligation to respond.
Now, assuming the statute were limited as I say, so nothing happened to this individual, nothing happened to the person who's stopped that wouldn't have happened anyway, all that happens is the person -- the policeman makes a phone call.
Now that's what I'm trying to get at.
If that were the situation, and we said it had to be the situation, then what in the Federal statute would that conflict with, where we have two provisions that say any policeman can call?
Mr. Verrilli Jr.: --So--
Justice Stephen G. Breyer: What's the -- that's -- that's where I'm trying to push you.
Mr. Verrilli Jr.: --Yes.
Justice Stephen G. Breyer: Because in my mind I'm not clear what your answer is to that.
Mr. Verrilli Jr.: I understand the question.
And I think the answer is this: 1373 was enacted in 1996, along with 1357.
And 1357 is the provision that sets forth the powers and authorities of Federal immigration officials.
It contains 1357(g), which effectively says that Federal -- that the Federal Government, the Attorney General, can deputize state officials, so long as they're -- they obtain adequate training and they are subject to the direction and control of the Attorney General in carrying out immigration functions.
Then the last provision, (g)(10), says that nothing that we've said so far should be read to preclude informal cooperation, communication or other informal cooperation in the apprehension, detention and removal of unlawfully present persons; but, it's the focus on cooperation.
And I think you have to -- so I don't think you can read into 1373 the -- the conclusion that what Congress was intending to do was to shift from the Federal government to the states the authority to set enforcement priorities, because I think the cooperation in this context is cooperation in the service of the Federal enforcement.
Justice Sonia Sotomayor: Can I get to a different question?
I think even I or someone else cut you off when you said there were three reasons why -- 2(B).
Putting aside your argument that this -- that a systematic cooperation is wrong -- you can see it's not selling very well -- why don't you try to come up with something else?
Because I, frankly -- as the chief has said to you, it's not that it's forcing you to change your enforcement priorities.
You don't have to take the person into custody.
So what's left of your argument?
Mr. Verrilli Jr.: So let me just summarize what I think the three are, and then maybe I can move on to sections 3 and 5.
With respect to -- with respect to 2, we think the harassment argument -- we think this is a more significant harassment problem than was present in Hines--
Justice Sonia Sotomayor: Please move--
Mr. Verrilli Jr.: --With respect to -- in addition, we do think that there is a structural accountability problem in that they are enforcing Federal law but not answerable to the Federal officials.
And third, we do think there are practical impediments, in that the -- the result of this is to deliver to the Federal system a volume of inquiries that makes it harder and not easier to identify who the priority persons are for removal.
So those are the three reasons.
Chief Justice John G. Roberts: General, you have been trying valiantly to get us to focus on section 3, so maybe we should let you do that now.
Mr. Verrilli Jr.: Thank you, Mr. Chief Justice.
The -- I do think the key thing about section 3 is that we -- is that section 3 is purporting to enforce a federal registration requirement.
That's a relationship between the alien and the United States government that's exclusively a Federal relationship.
It's governed by the terms of 1301 through 1306.
And the way in which those terms are enforced does have very significant Federal interest at its heart, and there is no state police power interest in that Federal registration relationship.
And I do think -- I think it's very important -- Justice Alito raised the question of these categories of people.
I think it is quite important to get clarity on that.
The -- if you are -- if you have come into the country unlawfully, but you have a pending application for asylum, a pending application for temporary protective status because you would have to be removed to a country to which you can't be removed because of the conditions in the country, if you have a valid claim for relief under the Violence Against Women Act based on your treatment, if you have a valid claim for relief because you are a victim of human trafficking, if you have a valid claim for relief because you are the victim of a crime or a witness to a crime, all of those persons are in technical violation of 1306(a).
And -- and it seems to me they -- they are in violation of 1306(a), so my friend, Mr. Clement, is not correct in saying that those are people who aren't in violation of 1306(a) and, therefore, aren't in violation of section 3.
They are in violation.
Justice Antonin Scalia: Well, maybe 1306(a) ought to be amended, then.
I mean, we have statutes out there that there a lot of people in violation of it and -- well, the Attorney General will take care of it.
Is that how we write our criminal laws?
Mr. Verrilli Jr.: But it's a situation in which no reasonable person would think that the individual ought to be prosecuted; and, yet, very often, the states aren't even going to know.
In fact, about asylum status, they can't know because there are regulations that require that to be kept private to avoid retaliation against the person making the application.
And so, this is -- so this is -- this is, I think, a very strong illustration of why the enforcement discretion over section 3 needs to be vested exclusively in the Federal Government.
Justice Antonin Scalia: Again, I ask you, do you have any other case in which the basis for preemption has been you are interfering with the Attorney General's enforcement discretion?
Mr. Verrilli Jr.: Well, this is--
Justice Antonin Scalia: I think that's an extraordinary basis for saying that the state is preempted.
Mr. Verrilli Jr.: --I think what is extraordinary about this, actually, Justice Scalia, is the state's decision to enact a statute purporting to criminalize the violation of a Federal registration obligation.
And I think that's the problem here.
And they are doing it for a reason--
Justice Antonin Scalia: It's not criminalizing anything that isn't criminal under Federal law.
Mr. Verrilli Jr.: --But -- but what--
Justice Antonin Scalia: It's the bank.
It's the Federal bank example--
Mr. Verrilli Jr.: --Well, no.
Justice Antonin Scalia: --a state law which criminalizes the same thing that the Federal law does.
Mr. Verrilli Jr.: I think it's quite different.
What they are doing here is using 1306(a) to get at the status of unlawful presence.
The only people who can be prosecuted under section 3 are people who are unlawfully present in the country.
That's what the statute says.
And they are using it to get at that category of people to essentially use their state criminal law to perform an immigration function.
And the immigration function is to try to -- to prosecute these people.
And, by the way, you can prosecute somebody, they can be put in jail for 30 days here; but, under Federal law, a violation of 1306(a) is a continuing offense.
So, the day they get out of jail for that 30 days, they can be arrested again, and this can happen over and over again.
And the point of this provision is to drive unlawfully present people out of the State of Arizona.
Justice Anthony Kennedy: Suppose -- suppose -- well, assume these are two hypothetical -- two hypothetical instances.
First, the Federal government has said, we simply don't have the money or the resources to enforce our immigration laws the way we wish.
We wish we could do so, but we don't have the money or the resources.
That's the first -- just hypothetical.
Justice Antonin Scalia: You said that in your brief, didn't you?
Justice Anthony Kennedy: Also hypothetical is that the State of Arizona has -- has a massive emergency with social disruption, economic disruption, residents leaving the State because of flood of immigrants.
Let's just assume those two things.
Does that give the State of Arizona any powers or authority or legitimate concerns that any other state wouldn't have?
Mr. Verrilli Jr.: Of course, they have legitimate concerns in that situation.
And, Justice Kennedy--
Justice Anthony Kennedy: And can they go to their legislature and say, we're concerned about this, and ask the legislature to enact laws to correct this problem?
Mr. Verrilli Jr.: --They -- they certainly can enact laws of general application.
They can enforce the laws of general application that are on the books.
They already -- as a result of 8 U.S.C. 1621, it's clear that they are under no obligation to provide any state benefits to the population.
But I think, most importantly, they can -- and -- not most importantly, but as importantly, they can engage in cooperative efforts with the Federal government--
I see my--
Chief Justice John G. Roberts: No, keep going.
Mr. Verrilli Jr.: --They can -- they can engage in cooperative efforts with the Federal government, of which there are many going on in Arizona and around the country, in order to address these problems.
Justice Antonin Scalia: General, didn't you say in your brief -- I forget where it was -- I thought you said that the Justice Department doesn't get nearly enough money to enforce our immigration laws?
Didn't you say that?
Mr. Verrilli Jr.: Of course, we have to set priorities.
There are only--
Justice Antonin Scalia: Exactly.
So the state says, well, that may be your priorities, but most of these people that you're not going after, or an inordinate percentage of them, are here in our state, and we don't like it.
They are causing all sorts of problems.
So we're going to help you enforce Federal law.
We're not going to do anything else.
We're just enforcing Federal law.
Mr. Verrilli Jr.: --Well, what I think they are going to do in Arizona is something quite extraordinary, that has significant real and practical foreign relations effects.
And that's the problem, and it's the reason why this power needs to be vested exclusively in the Federal government.
What they are going to do is engage, effectively, in mass incarceration, because the obligation under section 2(H), of course, is not merely to enforce section 2 to the fullest possible extent at the -- at the risk of civil fine, but to enforce Federal immigration law, which is what they claim they are doing in section 3 and in section 5.
And so -- so, you're going to have a situation of mass incarceration of people who are unlawfully present.
That is going to raise -- poses a very serious risk of raising significant foreign relations problems.
And these problems are real.
It is the problem of reciprocal treatment of the United States citizens in other countries.
Justice Anthony Kennedy: So you're saying the government has a legitimate interest in not enforcing its laws?
Mr. Verrilli Jr.: No.
We have a legitimate interest in enforcing the law, of course, but it needs to be -- but these -- this Court has said over and over again, has recognized that the -- the balance of interest that has to be achieved in enforcing the -- the immigration laws is exceedingly delicate and complex, and it involves consideration of foreign relations, it involves humanitarian concerns, and it also involves public order and public--
Justice Sonia Sotomayor: --General, when -- when -- I know your brief, you had -- you said that there are some illegal aliens who have a right to remain here.
And I'm just realizing that I don't really know what happens when the Arizona police call the Federal agency.
They give the Federal agency a name, correct?
Mr. Verrilli Jr.: --I assume so, yes.
Justice Sonia Sotomayor: You don't really have knowledge of what--
Mr. Verrilli Jr.: Well, they -- I mean, it can come in lots of different ways, but generally they will get a name and some other identifying information.
Justice Sonia Sotomayor: --All right.
And what does the computer have?
What information does your system have?
Mr. Verrilli Jr.: Yes.
So the way this works is there is a system for -- for incoming inquiries.
And then there is a person at a computer terminal.
And that person searches a number of different databases.
There are eight or ten different databases, and that person will check the name against this one, check the name against that one, check the name against the other one, to see if there are any hits.
Justice Sonia Sotomayor: Well, how does that database tell you that someone is illegal as opposed to a citizen?
Today, if you use the names Sonya Sotomayor, they would probably figure out I was a citizen.
But let's assume it's John Doe, who lives in Grand Rapids.
So they are legal.
Is there a citizen database?
Mr. Verrilli Jr.: The citizen problem is actually a significant problem.
There isn't a citizen database.
Justice Sonia Sotomayor: I'm sorry, there is or there isn't?
Mr. Verrilli Jr.: --There is not.
If you have a passport, there is a database if you look "passports".
So you could be discovered that way.
But otherwise there is no reliable way in the database to verify that you are a citizen unless you are in the passport database.
So you have lots of circumstances in which people who are citizens are going to come up no match.
There's no -- there is nothing suggesting in the databases that they have an immigration problem of any kind, but there's nothing to--
Justice Sonia Sotomayor: So if you run out of your house without your driver's license or identification and you walk into a park that's closed and you're arrested, you -- they make the call to this agency.
You could sit there forever while they--
Mr. Verrilli Jr.: --Yes, and I--
Justice Sonia Sotomayor: --Figure out if you're--
Mr. Verrilli Jr.: --While I'm at it, there is a factual point I think I'd like to correct.
Mr. Clement suggested that it takes 10 minutes to process these calls.
That's true, but you're in a queue for 60 minutes before it takes the 10 minutes to process the call.
So the average time is 70 minutes, not 10 minutes.
Chief Justice John G. Roberts: I had a little -- wasn't sure about your answer to Justice Kennedy.
Is the reason that the government is not focused on people who are here illegally as opposed to the other categories we were talking about because of prioritization or because of lack of resources?
You suggested that if the -- every illegal alien that you identify is either removed or prosecuted, that that would cause tensions with other governments.
So I -- I don't understand if it's because you don't have enough resources or because you don't want to prosecute the people who are simply here illegally as opposed to something else.
Mr. Verrilli Jr.: Well, it's a little more complicated than that.
I think the point is this, that with respect to persons who are unlawfully present, there are some who are going to fall in our priority categories, there are those who have committed serious offenses, there are those who have been removed and have come back, and there are other priority categories.
Because we have resource constraints and there are only so many beds in the detention centers and only so many immigration judges, we want to focus on those priority categories, find them, remove them.
There is a second category, and that is, individuals who are here in violation technically of 1306(a), but who have a valid asylum application or application for temporary protected status or other -- and with respect to those persons that we think would -- it's affirmatively harmful to think that they ought to be prosecuted.
And then there is an additional category of people who are not in the second category and not priorities and the form -- and we think there, the idea that an individual State will engage in a process of mass incarceration of that population, which we do think is what section 2(H) commits Arizona to do under section 3, raises a significant foreign relations problem.
Justice Antonin Scalia: Well, can't you avoid that particular foreign relations problem by simply deporting these people?
Look, free them from the jails--
Mr. Verrilli Jr.: I really think--
Justice Antonin Scalia: --And send them back to the countries that are -- that are objecting.
Mr. Verrilli Jr.: --This is a--
Justice Antonin Scalia: What's the problem with that?
Mr. Verrilli Jr.: --Well, a couple of things.
First is, I don't think it's realistic to assume that the aggressive enforcement of sections 3 and 5 in Arizona is going to lead to a mass migration back to countries of origin.
It seems a far more likely outcome is going to be migration to other States.
And that's a significant problem.
That's part of the reason why this problem needs to be managed on a national basis.
Beyond that, I do think, you know, the -- it's worth bearing in mind here that the country of Mexico is in a central role in this situation.
Between 60 and 70 percent of the people that we remove every year, we remove to Mexico.
And in addition, we have to have the cooperation of the Mexicans.
And I think as the Court knows from other cases, the cooperation of the country to whom we are -- to which we are removing people who are unlawfully present is vital to be able to make removal work.
In addition, we have very significant issues on the border with Mexico.
And in fact, they are the very issues that Arizona is complaining about in that--
Justice Antonin Scalia: So we have to -- we have to enforce our laws in a manner that will please Mexico.
Is that what you're saying?
Mr. Verrilli Jr.: --No, Your Honor, but what it does -- no, Your Honor, I'm not saying that--
Justice Antonin Scalia: Sounded like what you were saying.
Mr. Verrilli Jr.: --No, but what I am saying is that this points up why the Framers made this power an exclusive national power.
It's because the entire country feels the effects of a decision -- conduct by an individual State.
And that's why the power needs to be exercised at the national level and not the State level.
Chief Justice John G. Roberts: And your concern is the problems that would arise in bilateral relations if you remove all of these people, or a significant percentage or a greater percentage than you are now.
Nothing in the law requires you to do that.
All it does is lets you know where -- that an illegal alien has been arrested, and you can decide, we are not going to initiate removal proceedings against that individual.
It doesn't require you to remove one more person than you would like to remove under your priorities.
Mr. Verrilli Jr.: Right, but the problem I'm focused on -- we're focused on, Mr. Chief Justice, is not our removal decisions, but Arizona's decision to incarcerate, and the foreign relations problem that that raises.
That's why this power has got to be exercised at the national level.
Chief Justice John G. Roberts: And that arises under 3 and 5.
Mr. Verrilli Jr.: Correct.
Chief Justice John G. Roberts: But not 2.
Mr. Verrilli Jr.: Well, 2 identifies the population that's going to be prosecuted under 3 and 5.
I haven't -- I've been up here a long time.
I haven't said anything about section 5 yet.
And I don't want to tax the Court's patience, but if I could spend a minute on section 5.
Chief Justice John G. Roberts: Section 5.
Mr. Verrilli Jr.: The -- I do think the fundamental point about section 5 here is that in 1986, Congress fundamentally changed the landscape.
Congress made a decision in 1986 to make the employment of aliens a central concern of national immigration policy.
And this Court has described the 1986 law as a comprehensive regime.
Now, what my friend, Mr. Clement, says, is that it may be a comprehensive regime for employers; it's not a comprehensive regime for employees.
And therefore, it's -- there ought not be any inference here that the States are precluded from criminalizing efforts to seek or obtain employment in Arizona.
But I really think that's not right.
The -- employment is one problem.
And Congress tackled the problem of employment and made a decision, a comprehensive decision, about the sanctions it thought were appropriate to govern.
And Congress did, as Justice Ginsburg suggested, make judgments with respect to the circumstances under which employees could be held criminally liable, as well as the circumstances under which employers could be held liable.
And I think it is useful in thinking about the judgments Congress actually made--
Justice Antonin Scalia: So field preemption; is that your argument with respect to--
Mr. Verrilli Jr.: --It's both.
I think we're making both a field and a conflict preemption argument here, Justice Scalia.
And the -- I think it's worth examining the specific judgments Congress made in 1986.
On the employer's side -- and, after all, this is a situation in which the concern here is that the employer is in a position of being the exploiter and the alien of being the exploited -- on the employer's side, Congress said that States may not impose criminal sanctions, and even -- and the Federal Government will not impose criminal sanctions for the hiring of employees unless there's a pattern or practice.
It seems quite incongruous to think that Congress, having made that judgment and imposed those restrictions on the employer's side, would have left States free to impose criminal liability on employees merely for seeking work, for doing what you I think would expect most otherwise law-abiding people to do, which is to find a job so they can feed their families.
So I think that's a significant problem.
In addition, Congress made clear in the law that the I-9 form could not be used for any other purpose than prosecutions for violation of the Federal antifraud requirements.
And if Congress wanted to leave States free to impose criminal sanctions on employees for seeking work, they wouldn't have done that, it seems to me.
So that I think there are strong indicators in the text that Congress did make a judgment, and the judgment was this far and no farther.
And it's reasonable that Congress would have done so, for the same kinds of foreign relations concerns that I was discussing with respect to section 3.
It would be an extraordinary thing to put someone in jail merely for seeking work.
And yet that's what Arizona proposes to do under section 5 of its law.
Now, of course, there is an express preemption provision, but the express preemption provision, as this Court has said many times, does not operate to the exclusion of implied preemption, field or conflict.
So we do think those principles apply here.
We think there's a reason why the express preemption provision was limited to the employer's side, which is that after DeCanas laws had been enacted on the employer's side, and with -- Congress was making clear that those were preemptive, there were no laws on the employee's side at the time.
And therefore, no reason for preemption.
Chief Justice John G. Roberts: Thank you, General.
Mr. Verrilli Jr.: Thank you, Mr. Chief Justice.
Chief Justice John G. Roberts: Mr. Clement, 5 minutes.
REBUTTAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONERS
Mr. Clement: Thank you, Mr. Chief Justice, and may it please the Court:
I'd like to start briefly with the enforcement issues and then talk about the other provisions.
The last thing I'll say about the enforcement provision, since I do think that the Government's rather unusual theory that something that's okay when done ad hoc becomes preempted when it's systematic, I think that theory largely refutes itself.
But I will say one thing, which is to just echo that there is no interference with enforcement priorities by simply giving the Federal Government information on which to bring their enforcement priorities to bear.
And this is really illustrated by a point this Court made in its Florence decision earlier this month, which is that sometimes you pull somebody over for the most innocuous of infractions and they turn out to be the most serious of offenders.
And so if you preclude officers, as happened in Phoenix, from communicating with the Federal Government, the Federal Government will not be able to identify the worst of the worst.
And if you want an example of this, look at the declaration of Officer Brett Glidewell at Joint Appendix 183 to 186.
He pulled somebody over in a routine traffic stop and was shot by the individual.
Now, the individual it turns out was wanted for attempted murder in El Salvador and was also guilty of illegal reentry into the United States.
He was stopped on three previous occasions and his status was not verified.
Now, if it had been, he certainly would have been apprehended.
In at least two of the stops, his immigration status wasn't checked because of the city policy, City of Phoenix.
Now, if the State, I submit, can do anything, it can at the State level override those kind of local policies and say, that's not what we want.
Community policing is all well and good, but we want to maximize communication with the Federal authorities.
So I think the enforcement policy and priorities argument simply doesn't work.
As to section 3, two points about that.
One is, I respectfully disagree with the Solicitor General as to whether the various things that he led off -- read off, the litany of situations where somebody is -- technically doesn't have registration would be a violation of 1306(a).
And the reason I take that position is that provision says a willful failure to register.
Now, maybe the prosecutors take the view that there is willfulness in those circumstances, but I don't think many judges would.
I think they would say that if you've been told by the Federal Government that you're perfectly fine here and you don't need to register, that that would be good enough to defeat a finding of willfulness.
So I don't think 1306(a) covers this case.
Justice Sonia Sotomayor: You're inviting -- you're inviting the very sort of conflict that he's talking about.
Because what's going to happen now is that if there is no statement by the Federal agency of legality, the person is arrested, and now we're going to have Federal resources spent on trying to figure out whether they have an asylum application, whether they have this, whether they have that, whether they are exempted under this reason, whether the failure to carry was accidental or not -- I mean, you are involving the Federal Government in your prosecution.
Mr. Clement: Well--
Justice Sonia Sotomayor: Now, you may say we're not, because all we're going to show is -- what?
That we got a Federal call -- we got a Federal answer that the person wasn't registered?
Mr. Clement: --No, we're going to say that we communicated with the Federal immigration officials and they told us this is somebody who's perfectly fine and doesn't have to register.
Justice Sonia Sotomayor: No -- no Confrontation -- no Confrontation Clause problem with that?
With relying on a call to a Federal agency and the police officer says, you're arrested, you're charged, it's not an illegal alien -- or it is an illegal alien.
Mr. Clement: My supposition, Justice Sotomayor, is that they would use that call to not bring the prosecution, so the issue wouldn't even arise.
But I do want to be clear about--
Justice Sonia Sotomayor: No, no, no.
How about -- how about they get a response, yes, it's an illegal alien?
Mr. Clement: --And they bring a prosecution under section 3--
Justice Sonia Sotomayor: So how -- where do they get the records that show that this person is an illegal alien that's not authorized to be here?
Mr. Clement: --I--
Justice Sonia Sotomayor: Who do they get it from?
Mr. Clement: --I think they would get it from the Federal authorities.
I think it would be admitted.
There might be a challenge in that case.
I mean, you know, this is a facial challenge.
I'm not going to try to address that potential Sixth Amendment issue.
What I would like to say is two things.
One, if there is some sloppiness in the way the Federal Government keeps its records so that there's lots of people that really should be registered but aren't, I can't imagine that sloppiness has a preemptive effect.
The second thing I would say is that I do think, in thinking about section 3 in particular, the analogy is not the fraud on the FDA claim in Buckman, it's really the State tort law that says that it's a violation of State tort law to not even seek the approval that's needed under the FDA for a device.
Now, States impose tort law for people that market a device without getting the necessary approval, and nobody thinks that's preempted, because it serves the Federal interest.
It doesn't have a deluge of information.
It forces people to get FDA approval.
And in the same way, this State law will force people to register, which is what the Federal Government is supposed to want in the first place, so there is no preemption there.
There is no conflict.
As to the employment provision, I do think it's important to recognize that--
Chief Justice John G. Roberts: Finish your sentence.
Mr. Clement: --before 1986, the Government was not agnostic about unlawful employment by aliens.
The employees were already covered, and they were subject to deportation.
So the Government said, we're going to cover the employers for the first time.
I can't imagine why that would have preemptive effect.
Thank you, Your Honor.
Chief Justice John G. Roberts: Thank you, Mr. Clement, General Verrilli.
Well argued on both sides.
The case is submitted.
Chief Justice John G. Roberts: In case 11-182, Justice Kennedy has the opinion.
The case is Arizona versus United States.
Justice Anthony Kennedy: The State of Arizona has enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act.
The law is often called in the pleadings and in the opinion S. B. 1070.
It is designed, in the words of the statute, to discourage and deter the unlawful entry and presence of economic activity by persons unlawfully present in the United States.
The question before the Court is whether four different provisions of the state law are preempted and rendered invalid by federal immigration law.
The federal power to determine immigration policy is well settled.
Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire nation as well as the perceptions and expectations of aliens in this country, who seek full protection of the laws.
Federal statutes and regulations include detailed rules concerning when aliens may enter the country, how -- how they must register, whether they may work, and under what circumstances they maybe removed.
This pervasive federal law does not diminish the importance of immigration policy to the states.
In Arizona, each year hundreds of thousands of deportable aliens are apprehended.
Evidence in this record suggests that crime, property damage, and serious environmental problems are caused by the influx of illegal migration across the border.
These concerns are the background for the legal analysis in this case.
Now the Supremacy Clause of the Constitution gives Congress the power to preempt state laws.
There are subject areas where federal regulation is so extensive or the federal interest is so dominant that it may be inferred that Congress intended to displace state law altogether and this is called, field preemption.
State laws will also be found invalid if they conflict with federal law and this includes situations where state law stands as an obstacle to the full objectives of Congress.
The four disputed provisions of S. B. 1070 must be evaluated accorded -- according to these principles and the first provision to be discussed is Section 3.
This part of S. B. 1070 makes it a misdemeanor, a state law misdemeanor, not to comply with federal laws requiring aliens to complete and carry registration papers.
In the 1941 case of Hines versus Davidowitz, the Court discussed then applicable federal alien registration requirements.
The framework Congress had established at that time was described as a complete system for alien registration.
In Hines, the 1941 case, the Court held that states could -- could not complement federal law or could not enforce additional or auxiliary regulations.
Today, the federal framework of alien registration rules remains comprehensive.
Under the Hines case and based on field preemption, federal law does bar the additional enforcement mechanism provided in Section 3 and Section 3 of the Arizona law is preempted by federal law.
The next provision to be discussed is Section 5(C).
Now this Section makes it a misdemeanor for an alien in Arizona to seek or engage in unauthorized work, the penalties on the perspective or the actual employee.
Penalties include incarceration for up to six months.
Now, in 1986 Congress passed the Immigration Reform and Control Act known as IRCA as a comprehensive framework for combating the employment of illegal aliens and that law, the federal law requires employers to verify the status of their workers and it punishes violations with civil and criminal penalties.
The unauthorized employees on the other hand are generally, under the federal law, subject only to civil penalties.
Congress debated and rejected proposals to impose criminal penalties on them.
The correct instruction to draw from the text, design, and history of the IRCA is that Congress decided these penalties would be inappropriate but authorizing them in Section 5(C) of the Arizona law upsets the careful balance struck by Congress.
It stands as an obstacle to federal law.
Section 5(C) is preempted by federal law.
The next Section to be discussed is Section 6.
Now, this Section gives state police officers authority to arrest without a warrant certain aliens who are suspected of being removable from this country.
As a general rule, it is not a crime for a removable alien to remain in the United States.
When an alien is suspected of being removable, a federal official issues a notice for him or her to appear at a hearing.
Congress has specified circumstances when it is appropriate for federal immigration officers to arrest an alien during the removal process.
Without a federal warrant, these federal officers have limited authority.
Section 6 of the state law gives state officers greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers.
And Section 6 gives state officers the power to make these arrests without any instruction or direction from the federal government.
This conflicts with federal -- the federal statutory framework which identifies narrow circumstances when state officers may perform the functions of an immigration officer.
Now, in defense of Section 6, Arizona notes that a federal statute permits state officers to cooperate with the Attorney General in the detention and removal of aliens not lawfully present in the United States.
Now there is some ambiguity as to what constitutes cooperation, but no coherent understanding of that term could include what Section 6 authorizes, unilateral state action to arrest and detain aliens based on their possible removability.
Section 6 of the Arizona law is preempted by federal law.
The last Section to be discussed is Section 2(B) of the state law.
This requires state officers to make a reasonable attempt to verify the immigration status of anyone they stop, detain, or arrest if there is a reasonable suspicion that the person is unlawfully present in united -- in the country.
The state law also provides that any person who is arrested shall have the person's immigration status determined before the person is released.
By a well established procedure, these state inquiries can be and are directed to a federal agency.
The challengers to the state law argue that Section 2(B) conflicts with federal law because the status checks are made mandatory, but federal law does not suggest that it is inappropriate enough for state officers to contact immigration and customs enforcement as a routine matter.
Instead, federal law encourages the sharing of the information about possible immigration violations.
One concern is that under state law, officers will be required to delay the release of some detainees for no reason other than to verify their immigration status, but Section 2(B) can be read to avoid this concern.
If the provision only requires state officers to conduct the status check during the course of an authorized lawful detention or after a detainee has been released, the provision would likely survive preemption at least absent some showing that it has other consequences that are adverse to federal law in its objectives.
Without a definitive interpretation from the state courts, it would be inappropriate to assume at this point that the law will be construed in a way that conflicts with federal law.
The Court's opinion does not foreclose other preemption and constitutional challenges to the law after it goes into effect, but in this case, Section 2(B) survives preemption.
The national government has significant power to regulate immigration.
With power comes responsibility and the sound exercise of national power over immigration depends on the nation's meeting its responsibility to base its laws on a political will, informed by searching thoughtful, rational, civic discourse.
Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law.
Justice Scalia, Justice Thomas, and Justice Alito had each filed an opinion concurring in part and dissenting in part.
Justice Kagan took no part in the consideration or decision of this case.
Justice Antonin Scalia: I would uphold all the provisions of the Arizona law.
For almost a century after the Constitution was ratified, there were no federal immigration laws except one of the infamous alien -- alien and sedition acts that was discredited and allowed to expire.
In that first century, all regulation of immigration was by the states, which excluded various categories of would be immigrates, including convicted criminals and indigents.
Indeed, many questioned whether the federal government had any power to control immigration.
That was Jefferson's and Madison's objection to the Alien Act.
The State's power to control immigration, however, has always been accepted and is indeed reflected in some provisions of the Constitution.
The provision that, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several states was a revision of the provision in the article of -- articles of confederation which gave those privileges and immunities, not to citizens of other states but to inhabitants of other states."
It was revised because giving that protection to mere inhabitants would allow the immigration policies of one State to be imposed on the others.
Even that revision was thought not to be enough because the states were not willing to have their immigration policies determined even by the citizenry -- citizenship requirements of other states, hence the Naturalization Clause of the constitution which enables the federal government to control who can be a citizen.
Of course the federal power to control immigration was ultimately accepted and rightly so, but where does that power come from?
Jefferson and Madison were correct that it is nowhere to be found in the Constitution's enumeration of federal powers.
The federal power over immigration cannot plausibly derive from the Naturalization Clause which is what the government asserted.
Not only does the power to confer citizenship have nothing to do with the power to exclude immigrants, but as I have described, the Naturalization Clause was a vindication of State rather than federal power over immigration.
Federal power over immigration comes from the same source as state power over immigration.
It is an inherent attribute, perhaps the fundamental attribute of sovereignty.
The states of course are sovereign, the United States being a union of sovereign states.
To be sovereign is necessarily to possess the power to exclude unwanted persons and things from the territory.
That is why the Constitution's prohibition of a state's imposing duties on imports made an exception for "what may be absolutely necessary for executing its inspection laws."
Thus, this Court's cases have held that the states retain an inherent power to exclude.
That power can be limited only by the Constitution or by laws enacted pursuant to the Constitution.
The Constitution as we have seen does not limit a State's power, but to the contrary vindicates it so the question in this case is quite simply whether the laws of the United States forbid what Arizona has done.
Our cases have held with regard to claimed federal abridgement by law of another inherent sovereign power of the states namely, their sovereign immunity from suit, that any abridgement by Congress must be "unequivocally expressed."
The same requirement must apply here and there is no unequivocal congressional prohibition of what Arizona has done.
It is not enough to say that the federal immigration laws implicitly "occupy the field,” so-called field preemption.
No federal law says that the states cannot have their own immigration law.
Of course the Supremacy Clause establishes that federal immigration law is supreme so that the State's immigration laws cannot conflict with it, cannot admit those whom federal law would exclude or exclude those whom federal law would admit, but that has not occurred here.
Arizona has attached consequences under state law to acts that are unlawful under federal law.
Illegal aliens' presence in Arizona and their failure to maintain what they have on their person evidence of federal alien registration.
It is not at all unusual for a state law to impose additional penalties or attach additional consequences to acts that are unlawful under federal law.
State drug laws are a good example.
That does not conflict with federal law.
In sum, Arizona is entitled to impose additional penalties and consequences for violations of federal immigration laws because it is entitled to have its own immigration laws.
As my opinion describes in more detail, however, most of the provisions challenged here do not even impose additional penalties or consequences for violation of federal immigration laws.
They merely -- they merely apply stricter enforcement.
The federal government would have us believe and the Court today agrees that even that is forbidden.
The government's briefs -- brief asserted that, "The executive branch's ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely."
But there is no reason why the federal executives need to allocate its scarce enforcement resources, should disable Arizona from devoting its resources to illegal immigration in Arizona then in its view, the federal executive has given short shrift.
Arizona asserts without contradiction and with supporting citations the following, "In the last decade, federal enforcement efforts have focused primarily on California and Texas leaving Arizona's border to suffer from comparative neglect.
The result has been the funneling of an increasing tide of illegal border crossings into Arizona.
Indeed, over the past decade, over a third of the nation's illegal border crossings occurred in Arizona."
Must Arizona's ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement or even worse, to the executive's unwise targeting of that funding, but leave that aside.
It has become clear that federal enforcement priorities in the sense of priorities based on the need to allocate scarce enforcement resources is not the problem here.
After this case was argued and while it was under consideration, the Secretary of Home Land Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants.
A husbanding of scarce enforcement resources can hardly be the justification for this since those resources will be eaten up by the considerable administrative cost of conducting the non-enforcement program which will require as many as 1.4 million background checks and by any rulings on request for dispensation.
The President has said that the new program is "the right thing to do" in light of Congress' failure to pass the administration's proposed revision of the immigration laws.
Perhaps it is, though Arizona may not think so.
But to say as the Court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the President declines to enforce boggles the mind.
The Court's opinion paints what it considers a looming specter of unutterable horror, "If Section 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations."
That seems to me not so horrible and even less looming, but there has come to pass and is with us today, the specter that Arizona and the states that supported, predicted, a federal government that does not want to enforce the immigration laws as written and leaves the states' borders unprotected against immigrants whom those laws would exclude.
So the issue was a stark one.
Are the sovereign states at the mercy of the federal executive's refusal to enforce the nation's immigration laws?
A good way of answering that question is to ask, would the states conceivably have entered into the union if the Constitution itself contained the Court's holding today?
Imagine a provision perhaps inserted right after Article 1, Section 8, Clause 4 of the Naturalization Clause which included among the enumerated powers of Congress the following, "To establish limitations upon immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate."
The delegates to the Grant Convention would have rushed to the exits from independence call -- from Independence Hall.
As is often the case, discussions of the dry legalities, that are the proper object of our attention, supresses the very human realities that gave rise to this suit.
Arizona bears the brunt of the country's illegal immigration problem.
Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.
Federal officials have been unable to remedy the problem and indeed have recently shown that they are simply unwilling to do so.
Arizona has moved to protect its sovereignty, not in contradiction of federal law, but in complete compliance with it.
The laws under challenge do not extend or revise federal immigration restrictions but merely enforce those restrictions more effectively.
If securing its tenant -- its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state.
For these reasons, I dissent.