Even the more liberal Justice Sonia Sotomayor, who offered the most sympathy for the government’s position, pointed out to Justice Department Solicitor General Donald Verrilli that his argument “isn’t selling very well”—namely that a regularized system of status checks is somehow different from the current (and legal) ad hoc one.
However, Justice Anthony Kennedy pursued a line of questioning that could potentially lead the justices to invalidate the status check provision. He asked whether a person would be detained longer than they otherwise would have been because of the immigration status check. Clement was unable to assure Kennedy that the detention time would not be lengthened.
The justices were less harsh about the government’s objections to the other provisions of the Arizona law, indicating the court could reach different conclusions about different parts of the law. The justices had practical questions for the petitioners about how people would be treated. They wanted to know, for example, what would happen to a person stopped in Arizona who is technically undocumented but awaiting federal registration (i.e., for asylum). That situation could come up under the state law’s provision allowing warrantless arrests for people that state police believe are deportable, or it could come into play under the state law’s provision requiring people to carry documents showing their legal status. Either way, the answer is confusing.
Clement said that such a person would not be detainable because they are not willfully violating the law by having no papers. Verrilli disagreed. Such a person is in technical violation of the law, he said, and the Arizona statute makes it a crime to not have legal documents. Scalia then suggested, almost half-heartedly, that the confusing federal statute could be amended to clarify that question.
Arizona’s provision making it a crime for an illegal alien to seek employment was almost a side-note to the discussion, although it is more likely to be struck down by the justices than the other parts of the law. Verrilli was permitted to outline his argument against the provision without interruption, noting that Congress already had established the exclusive framework for employing illegal immigrants in its 1986 immigration law. That law makes it illegal for employers to hire undocumented workers, but it is silent on the criminality of the employees themselves.
Clement argued that the silence in the 1986 law gives Arizona the go-ahead to address unauthorized workers in its own law. Sotomayor disagreed bitterly with this idea. “For those of us for whom legislative history has some importance, there is quite a bit of history that [employee sanctions] were discussed and rejected,” she said.