By Mike Dorf
On Wednesday, the Supreme Court heard oral argument in Arizona v. U.S. (Transcript and other important case docs here.) There has been much press coverage of the case already, so I'll raise a few offbeat observations.
The Chief Justice as Traffic Cop
During the oral argument, I noticed that something happened that seems to be happening with increasing frequency. Two Justices simultaneously started speaking and then CJ Roberts intervened to effectively "call on" one of them. In this instance (at pp 30-31 of the transcript), Justices Sotomayor and Alito both started asking a question, and so CJ Roberts called on Justice Alito. I recall (although haven't bothered to locate in the transcript) another instance during one of the Affordable Care Act arguments, when Justices Sotomayor and Ginsburg started at the same time, and CJ Roberts called on Justice Ginsburg. And I am pretty sure I've seen this happen other times in the last couple of years.
I don't recall CJ Rehnquist doing this sort of thing, although there are plenty of transcripts I haven't read, so it's possible he did. But assuming that this is a new practice under CJ Roberts, I wonder whether his colleagues voted him the authority to call on them? I tend to doubt it. I suspect that the Chief Justice has simply assumed (reasonably enough) that as the presiding Justice, he has the power to conduct the oral argument in an orderly fashion.
But then one might want to know what principle is the Chief Justice using to decide whom to call on. Seniority? Calling on the Justice who started the question first? Calling on the Justice who has been speaking rather than the one who appears to be interrupting the other Justice's line of questioning? Calling on the Justice who has spoken less during the particular oral argument, and thus whose "turn" it is? Just going on a gestalt "feel" that balances multiple factors--much in the way that I do when calling on a student volunteer when more than one has a hand up?
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Two Substantive Points
As most readers probably know, at issue in Arizona v. U.S. is whether four provisions of Arizona's S.B. 1070 are preempted by federal law. (As a technical matter, the question is whether the laws are "probably" preempted, because the case comes to the SCOTUS from a motion for a preliminary injunction, but everyone expects the Justices to reach the preemption merits directly.) The provision that has gotten the most attention in the press and that the Justices spent more time discussing than any other provision is Section 2, which requires AZ state and local officers who have reasonable suspicion to believe that someone they have lawfully arrested, stopped or detained is unlawfully in the country, to make a reasonable attempt to determine that person's immigration status. Here I'll note two interesting questions about Section 2 that were raised but not fully explored during the oral argument.
1) SG Verrilli was having an understandably difficult time persuading the Court that Section 2 is preempted by federal law, in light of the fact that the federal government itself has established a procedure for answering questions about the immigration status of individuals detained by state and local officials. Justice Alito pushed on this point with an interesting hypothetical example. He asked the SG to imagine that S.B. 1070 had not been enacted but that "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?"
SG Verilli flatly answered that this would not be a violation of federal law, so long as there was no formal state policy that took away the discretion of the officers to follow federal policy directives. When pressed further by Justice Alito, the SG maintained that line, even if the individual officers continued to refuse to follow the federal directives. I was left puzzled about why that should be, and just as the SG seemed about to provide a fuller explanation answer, he was asked other questions by other Justices, and the argument was diverted.
Trying to fill in the gap, I think that what the SG might have been driving at was that if individual state and local officers spontaneously and independently settled on the approach that is mandated by Section 2, then we would not be faced with a policy that works in conjunction with the other policies to further Arizona's more restrictive immigration policy, which, taken as a whole, contradict the immigration enforcement priorities set by the federal government.
At least that's where I think the SG might have been going. But the foregoing answer has the disadvantage that it means that Section 2 would not be preempted if it were the entirety of S.B. 1070. Yet I don't read the federal government to be making that argument. Instead, I read the S.G. to be saying that each challenged provision of S.B. 1070 is independently preempted by federal law.
Accordingly, perhaps the SG should have answered Justice Alito's question by saying that federal preemption applies to state executive action no less than to state legislative action and that if the conduct of state and local officials--taken in the aggregate and whether or not coordinated--has the effect of undermining federal priorities, it is preempted. I'm not sure whether that would be a persuasive argument, but I do think it is at least plausible to suggest that there may be conduct which, if engaged in sporadically, is legal, but when engaged in consistently, is illegal. The SG also could have fought the hypo by saying that if every state and local official took this stance, we would have excellent grounds for inferring that, despite what they said, they were in fact carrying out state policy.
2) Another line of questioning concerned whether an executive policy of exercising prosecutorial discretion in a particular manner could have preemptive force. CJ Roberts and both Justices Scalia and Alito pressed SG Verrilli about this point. Justice Scalia asked the SG for a prior case in which the Court had said that such an exercise of prosecutorial discretion could have preemptive force. The SG did not offer any examples, shifting gears by stating that, at least some of the challenged provisions were preempted by federal statutes themselves. But suppose that's not true of Section 2--or for that matter, of some totally different state statute in a different case. Should it be possible for the federal executive to preempt state "over-enforcement" of a federal law by exercising its prosecutorial discretion?
A federal executive agency could promulgate a regulation setting out its enforcement priorities and, so long as that regulation-making power was procedurally sound (per the Administrative Procedure Act) and substantively within the scope of a delegation of power from Congress (per Chevron and the nearly toothless non-delegation doctrine), such a regulation would preempt state enforcement regimes that were inconsistent with the federal policy. That's just good old preemption doctrine: Federal law--whether it comes from the Constitution, a statute, or a regulation--preempts contrary state law.
But the question is whether the federal executive branch can do what I've just described through an unwritten policy of exercising prosecutorial discretion. I'm not an expert in administrative law, but I share Justice Scalia's skepticism that it has ever been tried. Perhaps Congress could expressly authorize a federal agency to preempt state laws through the federal agency's exercise of prosecutorial discretion, but I'm not even sure of that. After all, the Supremacy Clause makes the Constitution, treaties and laws of the United States supreme over state law, and while an agency regulation can plausibly be described as a "law" of the United States, it is hard to see how the exercise of prosecutorial discretion is a kind of federal "law" that preempts state law. One might think that discretion is the very opposite of law. In any event, here Congress certainly has not authorized any federal agency to give preemptive force to its exercise of prosecutorial discretion, so the skepticism of the Chief Justice and Justices Scalia and Alito on this point appears doubly warranted.
Although it's not entirely clear from the transcript of the oral argument, I didn't read the SG to argue that the federal government's exercise of prosecutorial discretion was preemptive. He appeared to say--and said clearly in his brief--that Congress's statutory grant of prosecutorial discretion to the executive, in combination with federal primacy over foreign affairs--itself displaces S.B. 1070. The difficulty for the S.G. on this point, however, is that his argument appears undifferentiated. Any state and local efforts to enforce federal immigration law will in some measure undermine the exercise of federal prosecutorial discretion; yet we know that some state and local enforcement efforts are permitted. So, in the end, the invocation of federal prosecutorial discretion seems like no more than a kind of tie-breaker in favor of preemption in an otherwise close case. Whether this case appears to the Justices to be otherwise close remains to be seen.