Arizona Gov. Jan Brewer, who signed the immigration law SB 1070 two years… (Mark Wilson, Getty Images )
WASHINGTON —U.S. Supreme Court justices strongly suggested they would uphold a provision in Arizona's tough immigration law that tells police to check whether people they stop for some other reason are in this country legally.
But several justices also suggested they were troubled by parts of the law that would make it a state crime for illegal immigrants to seek work or not to carry immigration documents.
The hourlong oral arguments Wednesday pointed toward a possible split decision: a partial victory for Arizona that would revive its first-in-the-nation state crackdown on illegal immigrants but weaken the impact of its law.
The Obama administration won lower court rulings that blocked Arizona's law on the grounds that it conflicted with the federal government's control over immigration. But U.S. Solicitor Gen. Donald B. Verrilli Jr. ran into steadily skeptical questions from the justices, both liberal and conservative.
Chief JusticeJohn G. Roberts Jr.said he saw no problem with Arizona's police checking with federal immigration officials once someone has been lawfully stopped. "What could possibly be wrong if Arizona arrests someone, let's say for drunk driving … and the arresting officer says, 'I'm going to call the federal agency and find out if this person is here illegally'?"
Verrilli repeatedly said the federal power over immigration was "exclusive" and did not allow any role for the states and police.
But the chief justice said the decision on whether to detain or deport an illegal immigrant still would rest with the federal government, not Arizona. "It's still your decision," he told Verrilli. "It seems to me the federal government just doesn't want to know who is here illegally."
The court's conservatives weren't the only ones who seemed untroubled by the police provision.
Justice Sonia Sotomayor, who was appointed by President Obama, asked several questions about it, but seemed satisfied that it need not have harsh consequences.
"What happens in this call to the federal government? 'Yes, he's an illegal alien. No, we don't want to detain him'?" she asked, voicing the words of a hypothetical federal agent.
"The answer is nothing. The individual at this point is released," said Paul D. Clement, Arizona's attorney.
Verrilli was expected to argue that the stop-and-arrest provision, if put into effect, would lead to the harassment and intimidation of Latinos. He said Arizona has 2 million Latino residents, of whom perhaps 400,000 may be illegal immigrants. But before he could deliver his opening comments, the chief justice cut him off: "No part of your argument has to do with racial or ethnic profiling, does it?"
"That's correct," Verrilli replied.
Roberts said the court would consider only concerns over state-versus-federal power, not civil rights issues that are the subject of other lawsuits.
While Clement, a solicitor general underPresidentGeorge W. Bush, made his argument with few interruptions, Verrilli was stopped repeatedly by justices, just as he was last month during oral arguments over Obama's healthcare law.
"I'm sorry.… I'm terribly confused by your answer," Sotomayor said at one point. "Your argument — that this systematic cooperation is wrong — is not selling very well. Why don't you try to come up with something else?"
JusticeStephen G. Breyeralso said he did not see a problem if "all that happens is a policeman makes a phone call.… I'm not clear what your answer is to that," he told Verrilli.
When Verrilli said the law could lead to "mass incarceration," JusticeAnthony M. Kennedysnapped, "So you're saying the government has a legitimate interest in not enforcing its laws?"
When the solicitor general said the "aggressive enforcement" of immigration laws could offend Mexico, Justice Antonin Scalia objected. "Look, free them from the jails and send them back to the countries that are objecting. What's the problem with that?"
Verrilli replied that U.S. officials needed to work cooperatively with Mexico.
"So we have to enforce our laws in a manner that will please Mexico? Is that what you are saying?" Scalia asked.
Scalia went further than some of the other conservatives, saying a sovereign state had the authority to "defend its borders" and arrest people "who do not belong in the country."
The justices spent far less time on the other parts of Arizona's SB 1070, including provisions that make it a state crime for illegal immigrants to seek work or to be caught without immigration papers.
But Roberts and Kennedy said several times that those provisions were different, appearing to go beyond federal law to create separate state immigration crimes. If the high court were to block those provisions, Arizona would not have the authority to arrest illegal immigrants and keep them in jail.