WASHINGTON (CN) - Racial profiling was the elephant in the room Wednesday as a shorthanded U.S. Supreme Court heard arguments to strike down Arizona's controversial immigration law.
SB 1070 makes it illegal for undocumented workers to solicit employment in public, requires immigrants to carry identification documents with them, and requires law enforcement to check a person's immigration status.
Justice Elena Kagan recused herself from the case because of her involvement as former solicitor general of the Obama administration, which is challenging the law's constitutionality.
U.S. District Judge Susan Bolton enjoined several sections of the law in July 2010, and the 9th Circuit upheld that decision last year, finding that Congress "explicitly required that in enforcing federal immigration law, state and local officers 'shall' be directed by the attorney general."
As Kagan's replacement, Solicitor General Donald Verrilli Jr., tried to commence his oral argument before the Supreme Court on Wednesday, Chief Justice John Roberts asked whether the lawyer planned to discuss racial or ethnic profiling, a point of contention between the state and civil rights groups.
Verrilli answered: "We're not making any allegation about racial or ethnic profiling in the case."
The government says that it alone has the power to enforce immigration policy.
Justice Antonin Scalia countered that "Arizona is not trying to kick out anybody that the federal government has not already said do not belong here."
Verrilli remained resolute.
"But they cannot do what Arizona is seeking to do here, Your Honor, which is to elevate one consideration above all others," he said. "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."
Justice Sonia Sotomayor, an Obama appointee, seemed highly critical of Verrilli's argument, asking why law enforcement should not have the right to check the immigration status of an arrested or otherwise detained suspect.
"Putting aside your argument 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," Sotomayor asked. "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?"
The justices also stopped Verrilli multiple times for referring to the racial profiling problem.
Arizona's attorney, former Bush administration solicitor general Paul Clement, argued that the law addresses Arizona's "disproportionate share of the costs of illegal immigration."
"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," he said.
A ruling in the case is expected by late June.