Eyewitness account perspective on oral arguments last week. Guests include Danny Ortega of the National Council of La Raza; Terry Greene Sterling, a local journalist; and Tim La Sota from Rose Law Group, as part of the team representing Cochise County Sheriff Dever since the beginning of the SB 1070 litigation.
José Cárdenas: Last Wednesday, the U.S. Supreme Court heard arguments on S.B. 1070. The justices appeared skeptical of the Obama administration's claim that Arizona had overstepped federal law. Most of the debate focused on the law's requirement that Arizona law enforcement check the immigration status of people during routine stops, and whether that is pre-empted by federal law. Joining me to talk about their observation of what happened in the courtroom are Terry Greene Sterling. Sterling is a contributor for the Daily Beast website and author of the book "Illegal: Life and Death in Arizona's Immigration War Zone". Danny Ortega, valley attorney and chairman for the National council of La Raza. And, Tim La Sota, attorney with the Rose Law Group. La Sota has worked on the team representing Cochise county sheriff Larry Dever since the beginning of S.B. 1070 litigation. Thank you all for joining us on "Horizonte." Just to make it clear as to what roles you all have played, Terry, you're a novelist who has covered immigration issues. Tim, your client, sheriff Dever has been a supporter of S.B. 1070 and you're actually representing some of the plaintiffs in a lawsuit that tim's on the other side of. Now that we know who all is doing what, Terry before we talk about what went on in the courtroom, let's talk about what was going on outside.
Terry Sterling: Well, there was a very large crowd outside the supreme court building and different advocacy groups sort of had little areas where a huge press representation -- I interviewed them. And one of the really interesting groups was the federation for American immigration reform which is a restrictionist group that is actually behind S.B. 1070. They have a group called the immigration reform law institute, which hired now, the Kansas secretary of state to really craft and write S.B. 1070. And I was speaking with them before the trial started, before the hearing started and one of the interesting things they told me is that their goal is to limit all immigration into the United States to 330,000 people annually. So I found that context very, very interesting and sort of a warmup and a preview for the hearing. The other thing that was really interesting is there were many, many, many people protesting S.B. 1070. It was very clear in their minds that S.B. 1070 was about race and about civil rights.
José Cárdenas: Let's move into the courtroom now and I would like to ask each one of you very quickly what stood out the most to you?
Danny Ortega: The thing that stood out the most to me more than anything else was the justices' analysis of section two and how it could operate in isolation of sections three, five, and six when the federal government actually wanted to lump them all being together. The way the justices dealt with section two was this is cooperative law enforcement. What's wrong with the police picking up the phone if they have reasonable suspicion, you're determining a lawful arrest, reasonable suspicion that somebody's in the country without papers that they could call the federal government and say is this person legally here? The justices, I was really surprised at the simplicity of the manner in which they dealt with that.
José Cárdenas: I want to explore that with you. Section two is the one that allows officers when they have reasonable suspicion after a lawful stop to think somebody's been in the country illegally requires them to make an inquiry, it's the one about not having papers on you, it makes it a state crime. Five would be the seeking employment makes that a crime if you're not here illegally. And six would be the warrantless arrest of people here, which nobody seems to quite understand how that works. But your impressions?
Tim La Sota: My impression was that it was a very poor day for the Obama administration and their local argument against 1070. I think their legal arguments did not stand up to the type of scrutiny that they received. The fundamental law in their argument and you've heard some of these wild exaggerations. The issue is it's been blocked from taking effect by a federal judge so some of these things that they've predicted we don't know whether they'll happen or not. Obama says they'll happen, the proponents say no they won't. I agree with the proponents that they won't but they've basically tried to shoehorn an as-applied challenge, which happens after the law takes effect into a facial challenge, which says the law is unconstitutional and it's not working for the president.
José Cárdenas: Terry, your thoughts?
Terry Sterling: My thoughts were -- my main observation is that the solicitor general was out-lawyered completely by the state's lawyer. The state's lawyer, Paul clement was forceful, clear, he made very clear points. The solicitor general bumbled a little bit and didn't drive home points that I felt he should have driven home. He sort of went around --
José Cárdenas: What do you think he could have said that he didn't?
Terry Sterling: Well, he was sort of bullied by the conservative judges and instead of regrouping and saying well, you're wrong because of this or that, he would say well in my estimation you're wrong.
José Cárdenas: So it was kind of his demeanor.
Terry Sterling: But also, for instance, and this hampered him. The conservative judges, you know, going after him hampered him. For example, scalia asked him I believe it was scalia asked him when he was trying to bring forth a point that immigration should be the -- immigration enforcement should be a federal matter, unless states are invited to participate in an immigration enforcement, because the treatment of prisoners, for example, well, he didn't say this but as an aside, marching Mexican prisoners in pink underwear, so the whole point was that it interfered. If states started assuming enforcement of immigration law, it would interfere --
José Cárdenas: And that's a point you think he should have made more clearly.
Terry Sterling: He didn't make that clearly,.
José Cárdenas: What they're saying in terms of the are reception of the government lawyer got was that it was a bad day for the government, whether it was the manner of the presentation.
Danny Ortega: From a manner of style, I clearly agree with him. From a manner of substance, I agree to a degree. I think he got caught offguard with their interpretation of section two operating separately. I think my assessment of this is that the federal government will lose its battle on preemption of section two. I don't think that will happen with section three and five and I don't know what they're going to do on section six because they didn't give us any indication. If it's a policing issue, I think section six can be enforced. But section two, I think is where the federal government really stumbled and stumbled seriously.
José Cárdenas: What could they have done?
Danny Ortega: I don't know that they could have done anything. I was a little taken aback by the way the justices dealt with it. What if the state police want to call you to determine if somebody's legally here or not? What's wrong with that? They've got the cooperation from the federal government to do that and you say it undermines your priorities and you don't have the resources for it? All you can say is we care not to deal with it. We're not going to answer your calls and that's your prerogative just like it's their prerogative under state law to mandate that the place do that.
José Cárdenas: Terry, does that seem to be the critical turning point with Paul clement, a very skilled, polished constitutional lawyer, argued in the supreme court many times. He said if the call is made and the federal government says they're here illegally but don't bring them to us, that's the end of it. Many think that was a change of position from what had been in the briefs but one that may lead the court to uphold section two.
Tim La Sota: A lot of people -- I don't think it's a change at all. I think that the state's ability is just one of being able to assist the federal government in enforcement of illegal immigration laws. They're the ultimate deciders but that doesn't mean the states can't play a role in assisting with that. Just real quick, the solicitor general is getting a lot of heat for his performance on Obama care defending that. I don't think he was dealt a very good hand to defend because they've made the wrong challenge to this law. I think the law is solid but even so, the way they've attacked it, they've made a significant tactical mistake and I think this lawsuit was really filed more for President Obama's political gains.
José Cárdenas: Making a facial challenge that says it can't be constitutionally applied under any circumstances as opposed to getting evidence of racial profiling.
Tim La Sota: You've heard this list of, you know, things that are going to happen if this law goes into effect. It's kind of hard to make that argument and they basic as Danny said, they've tried to put these things together and say well the government of Mexico doesn't like this so we've got to back off on it and it just -- it really did not fly at all. You mentioned sotomayor. 8 It wasn't just the conservative judges.
José Cárdenas: Now, Terry, one of the things that justice Roberts made clear right at the beginning of the government's argument was that they were not arguing racial profiling. Did that -- and the solicitor general said that's right.
Terry Sterling: That came as a huge surprise to me and the whole discussion of S.B. 1070. After having covered this debate for two years, the whole discussion seemed so sanitized. And, you know, this law is not a benign law. It was discussed as though it were a benign law but don't forget that citizens can file lawsuits against policemen who don't enforce the law to their satisfaction. So police are under a lot of pressure and it's my opinion that there's going to be a significant amount of racial profiling with it.
José Cárdenas: On that issue, you've heard from a lot of people who are also upset that the government conceded that they were not arguing racial profiling.
Danny Ortega: The government has made it clear from the beginning that this was a preemption case, it wasn't a racial profiling case. Let me go to that real quickly. This is one of the biggest civil rights cases since brown V. board of education and that's how most people looked at it. When the bottom line as lawyers, we knew that the department of justice had limited it to a preemption argument. So what is ultimately going to be a big civil rights case eventually was not dealt in that way and that's why people are upset. I don't know that it was the manner in which the federal government decided strategically to go after it. That's all they had was preemption. On its face, not as applied, this law is preempted and they couldn't go any further.
José Cárdenas: Let me ask you about possible outcomes. The one thing about section two that might trouble the liberal justices was the possibility the way the statute is worded, it seems to create the possibility that somebody could be held for a lengthy period of time if their immigration status can't be determined quickly. And so there's the possibility and Paul bender of ASU law school back here was that you might end up with a 4-4 decision.
Tim La Sota: I don't think it will be a 4-4 vote because that is another example of an as-applied challenge and there is disagreement over what exactly is required by the law but I can tell you the way police agencies will enforce that law is they're not going to sit on someone for days on end if they cannot determine if the person is here illegally. If they don't have evidence that is developed promptly that the person is here illegally, you've got to let the person go. That's the American system of justice. It applies in every other situation, if there's a separate crime under Arizona law committed, you can't hold someone indefinitely while you develop probable cause. You have to move quickly, that's America, that's the way it will be after S.B. 1070.
José Cárdenas: And Terry even if the statute might permit these unconstitutionally long detentions, don't you think that law enforcement is going to be particularly sensitive and if this case comes back down and they're allowed to implement S.B. 1070, they're going to do it very cautiously and try to avoid the concerns that a lot of people have had about racial profiling?
Terry Sterling: As I understand it, this law requires all law enforcement officers in the state to when they make a stop detention or arrest, if they reasonably suspect that a person is in the country illegally, they have to check the immigration status. And there are a lot of cops in the state. So yeah, most of the cops I'm sure will be very careful and very sensitive but it only takes one or two rogue cops.
Danny Ortega: Or one sheriff.
José Cárdenas: We're almost out of time.
José Cárdenas: Danny, last word as to what you think the supreme court's going to do and then based upon that, what's going to happen back here in Arizona?
Danny Ortega: I would think that as it relates to section two, I think it's going to overturn the lower court's decision. With regard to sections three and five --
José Cárdenas: And allow its implementation?
Danny Ortega: Yes, and three and five, they're going to be preempted. They're going to sustain the court's decision on that, and won't implement it and as it relates to section six, I have no clue.
José Cárdenas: What happens back here in Arizona?
Danny Ortega: There's other cases that have been filed. The one with the plaintiffs and he's with the defendants, we'll go forward. There are first amendment issues, 14th amendment issues, all of the issues that people were waiting to hear about at the supreme court will be heard.
José Cárdenas: Plenty of litigation ahead of us.
José Cárdenas: Thank you all for joining us on "Horizonte." It was a pleasure having you here.
Danny Ortega:National Council of La Raza; Terry Greene Sterling:Journalist; Tim La Sota:Lawyer, Rose Law Group;
