Supreme Court Preview: Health Care, Immigration And Privacy : The Two-Way The Supreme Court justices report back to work this Monday. They'll consider a docket full of controversial issues, from health care to immigration to digital privacy. David Savage and Neal Katyal preview the term.
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Supreme Court Preview: Health Care, Immigration And Privacy

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Supreme Court Preview: Health Care, Immigration And Privacy

Supreme Court Preview: Health Care, Immigration And Privacy

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NEAL CONAN, host: This is TALK OF THE NATION. I'm Neal Conan in Washington. The Supreme Court's new term begins on Monday, and two of the biggest issues it may address are on the front page of today's newspapers.

Yesterday, the Justice Department asked the high court to rule on challenges to President Obama's health care law, and a federal judge in Alabama upheld important law, parts of what's regarded as the toughest immigration law in the country. Lower courts have issued conflicting rulings on both those issues, and both are likely to be factors in the 2012 election. They come on top of cases already on the court's agenda.

As the new term approaches, we'd like to hear what cases you are following this term. Give us a call, 800-989-8255. Email us, You can also join the conversation on our website. That's at, and click on TALK OF THE NATION.

Later in the program, actress Clare Danes, who's played a fallen star, Temple Grandin and now a bipolar CIA agent. But first a preview of what's to come in the Supreme Court, and we turn, as we often do on these matters, to David Savage, who covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. Nice to have you back, David.


CONAN: And it seems all but certain the court will deal with health care. Will they address the central issue?

SAVAGE: Yes, I certainly think they will. For those of us who cover the court, things have been looking up the last couple weeks. The - this is a situation where they've almost got to take up these cases and resolve - the classic situation, you know, we had the 11th Circuit Court down in Atlanta say that the mandate for everyone to have health care is unconstitutional. Another court out in Cincinnati upheld the mandate. So the Supreme Court has almost certainly got to intervene.

The Justice Department yesterday said we're not even going to take all of our time to appeal. We're going to appeal right now. We want you to take up this case early next year and decide it by the next summer.

CONAN: In the middle of the presidential campaign.

SAVAGE: Absolutely right, yes.

CONAN: Also with us here in Studio 3A is Neal Katyal, the former acting solicitor general of the United States under President Obama. Nice to have you with us today.

NEAL KATYAL: Thanks, nice to be here.

CONAN: And currently a partner at the law firm of Hogan and Lovells. When cases like this come up, there are so many different aspects to it because some of the court's decisions in the health care were who's got standing to sue here.

KATYAL: Right, there were a multiplicity of different rationales, both on whether the suit could be brought at all and what the ultimate merits of the suit were, whether or not the statute that has been passed by Congress is constitutional or not.

And as David says, when you have that kind of differences among lower courts, that's the classic situation for what's called a writ of certiorari, that is asking the Supreme Court to hear a particular case. And so what happened yesterday is that the federal government said because of these conflicting decisions, Supreme Court please hear this case.

CONAN: Is the Justice Department taking any risks by not going through the 11th Circuit Court of Appeals?

KATYAL: I'm fairly restricted in what I can say because I argued all those cases that we were just talking about, including that 11th Circuit case below. So I don't really want to speculate as to risks. Maybe David might. But I think in general, the way the Justice Department approaches issues such as this is as an institutional body, what's the best thing for - what's the best thing for the court.

Should they hear something now, or should they wait and let more views unfold? And I think yesterday's decision just reflects the kind of general view that three different circuit courts have already heard these issues. There's a lot of different opinions. So let's just get the show on the road and get a decision.

CONAN: It's interesting, David, earlier it was the plaintiffs, the state attorneys general, who were saying why don't we just go straight to the Supreme Court with this, and it was the administration that said to put the brakes on, at least for a little while.

SAVAGE: I think both sides - actually, this is the one point that both sides have agreed on is that the Supreme Court was going to have to resolve this issue. And I think both of them thought sooner the better. They've moved these cases along in the appeals courts.

It is true that the Justice Department last week had a deadline. They could have asked the full appeals court in Atlanta to reconsider the case. It would have slowed things down a month or two, and it would have probably pushed things off until the next term after the election.

But my sense was that they were always confident that they could win. They thought the Supreme Court was going to resolve it, and they thought, as Neal said, the right thing to do is go up there and do it this year.

CONAN: Let's get some callers in on the conversation. We're previewing the Supreme Court session, 800-989-8255. Email is We'll start with Fred(ph), and Fred's with us on the line from Berkshire in New York.

FRED: Hi, thanks. I'm looking forward to getting a deduction for having a health care contract. In other words, I think that's more of a deduction rather than a penalty. And if they take that deduction away, how about my marriage contract? Can they take that deduction away, too?

CONAN: Oh, you mean on the deduction on your income tax?

FRED: Yeah.

CONAN: I'm not sure that that's up for review.

FRED: Well, what they're saying is that they call it a penalty, but I look at it as a deduction.

KATYAL: Well, I do think that that is one of the issues before the court right now, which is whether or not Congress's power over taxation permits this statute to be constitutional. And certainly a judge a couple weeks ago did find precisely that and suggests that the Congress's taxation power makes the statute constitutional because the government does have wide latitude when it comes to taxation.

CONAN: Fred, you can keep your marriage intact, then.


FRED: Yeah, I intend to.

CONAN: OK, thanks very much for the phone call, appreciate it. There's also the Commerce Clause. That is going to be, David Savage, part of the central argument, does the Commerce Clause of the Constitution allow the individual mandate to go ahead? Is that part of Congress's writ?

SAVAGE: Yes, that's the big issue. For most of the 20th century, most federal laws were passed and enforced under Congress's power to regulate commerce among the state: the minimum wage, all those kinds of laws. And that's the argument here is that the national Congress stepped in and said we need to regulate the national market in health insurance. We need to do some things like for example tell insurers that you can't deny coverage to people with pre-existing conditions.

But as part of that, we're also going to say everybody has to have some minimal coverage. We can't have a situation where, for example, if I had no insurance, and I walk out of this building and get hit by a bus, I'm taken to a hospital, the hospital has to provide care for me. The taxpayers frequently end up, you know, picking up the tab.

So the notion is no freeloaders, everybody's got to participate, and that's part of a regulation of the entire insurance market.

CONAN: Again, you argued this, Neal Katyal. What was the best argument you heard against that?

KATYAL: Well, the best argument I heard against it - you know, and again this is just me speaking personally - is that I think that it's not a legal argument as much as kind of a policy one, which is that the Congress hasn't - the argument goes - forced people to engage in purchasing various items before, so that this is something new and novel.

And there is an element of novelty to it, as the briefs for the government I think said, that, you know, that element is not as dramatic as the way the plaintiffs characterize it. And in any event, the real question is, as David said, does this affect commerce not is this something that is novel. There's no anti-novelty prohibition in the Constitution.

CONAN: There is other issues coming up, and that is the immigration issue. And it's not the Alabama law they're going to be reviewing, David, but the Arizona law.

SAVAGE: Correct. Arizona Governor Jan Brewer filed a cert petition in August. You remember, Arizona passed this law, it was highly controversial. It would have essentially got the local police into enforcing immigration laws against - for example arresting and holding illegal immigrants.

The Obama administration went into court and said look, immigration is a federal matter. It's an exclusive matter for the federal government. The Arizona law was put on hold by judges in Arizona and in the 9th Circuit. Arizona is appealing. And now so that - the question is who can enforce the immigration laws.

Is it only the federal government, or can states like Arizona and Alabama pass their own immigration enforcement laws?

CONAN: It's interesting, here's an email we have from an attorney in Birmingham who asked that we not use his name because he has cases pending before Judge Blackburn, the judge who decided the Alabama immigration case yesterday:

I'm very disheartened by the spin put on yesterday's outcome, including by NPR. The issue is whether preliminary injunctions would be ordered on the various provisions of Alabama's HB56. Judge Blackburn, an unabashed conservative, joined the enforcement of several of the more odious provisions of HB56, including notably Section 13, which prohibited persons from shielding, hiding or transporting undocumented aliens.

Other sections were shut down by Judge Blackburn, too, and yes, many draconian parts were left untouched. But this is just the beginning stage of this litigation, and the media spin that this was a big victory for proponents of this law, taking its cue from Governor Bentley's crowing, does a disservice to the truth of the matter.

And, well, Neal Katyal, I was just wondering if you had a comment on that.

KATYAL: I probably couldn't - can't say much about that one, either. I'm so sorry, but I was involved in the case out of Arizona. So it's a little better for me, given that this is pending in the Supreme Court, not to react to that.

CONAN: David?

SAVAGE: Well, it is true that the judge upheld some provisions or allowed them to go into effect. I shouldn't even say upheld, allowed them to go into effect, put some of the others on hold, and in the normal course of events, there would then be a full trial on these as to whether these provisions are constitutional or not.

But I do think the importance of the decision nationally is that it's going to spur the Supreme Court to take up this issue and decide it, that is can Alabama pass some stringent measures of its own to enforce the laws against illegal immigration, or is doing that trampling on the federal turf and something that they can't do.

CONAN: Let's see if we can get another caller in. Let's go to David(ph), and David's on the line from Houston.

DAVID: Yes, good afternoon.

CONAN: Afternoon.

DAVID: One of the things that gets me is that, you know, people who come into this country illegal, or even ones that live here, they feel that they are entitled to services, job, whatever. And as being 60 years old and have done everything right in my life, my taxes I've put into it, and these people that come in here, they, you know, go to the - clog up the health system and the emergency rooms because they don't have the money, and they don't have resources to go to a regular doctor.

You know, I have health care, but it costs me, you know, $60 or better just to go to my own doctor to have something done, you know, for whatever, but with the immigration, you try getting yourself into another country and see what happens.

Those people that they just released from Iran that just kind of walked across the border, you know, these people come over here, and they just want everything that we have worked and saved and done correctly to achieve.

CONAN: And I think, David Savage, what we're hearing there is why this is such a hot-button issue, clearly right now at the heart of the debate in the Republican presidential nomination process.

SAVAGE: Yes, I was about to make the same observation, Neal, that there is a lot of anger and emotion. Immigration is one of those subjects, I'll just say as a news reporter, almost every time I read a story that has the phrase immigration in it, you get an awful lot of emails.

CONAN: Same thing that happens on this radio program. It's interesting how that works.


CONAN: We're talking with David Savage of the Los Angeles Times and former acting U.S. Solicitor General Neal Katyal about the landmark cases likely to come up before the Supreme Court this term.

As the new term approaches, it starts on Monday, we'd like to hear what cases you're following, 800-989-8255. Email us, Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.


CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan. The Supreme Court opens its new term on Monday. In its previous session, the court limited the size of class actions, ruled former Attorney General John Ashcroft could not be personally held responsible for government policy and upheld Arizona's controversial immigration law, among other decisions.

It was a relatively quiet session. I don't think they did the Arizona law last time.

SAVAGE: There actually was a separate Arizona law about employment last year.

CONAN: Ah, an earlier one.

SAVAGE: Yes, that's right.

CONAN: The more board one that most people are concerned about is coming up this time. It's going to be a controversial term for the court, we expect. We expect decisions on - for the health care law, immigration - again, that Arizona law - and digital privacy.

As the new term approaches, we'd like to hear what cases you're following, 800-989-8255. Email You can also join the conversation on our website. That's at Click on TALK OF THE NATION.

Our guests are David Savage, Supreme Court reporter for the Los Angeles Times and the Chicago Tribune, our regular guide to what happens at the Supreme Court; and Neal Katyal, who served as acting solicitor general of the United States under President Obama, now a partner at the law firm of Hogan and Lovells and a professor of law at Georgetown.

What's happening at the solicitor general's office on the week before the Supreme Court session opens?

KATYAL: Well, the solicitor general is responsible for arguing and handling all cases that the government is involved in before the Supreme Court. So that translates to about 55 out of the roughly 80 cases or so the court hears each year. They are also the entity that approves every single federal appeal throughout the 50 states, from the trial court to the Court of Appeals.

So there's an enormous amount of work. There are only 20 lawyers now in the office handling all of this work. Now before - in a week like this, before the term, I think what's going on there is a lot of preparation for the oral arguments next week. They'll all be mooting each other - that is having fake argument sessions where they ask - they pretend to be justices and ask hard questions and the like. And it's a remarkably fun time in the office but a very intense time.

CONAN: I was going to say, they must have to pick straws to see who gets to play Scalia.

KATYAL: Well, you know, the office doesn't actually - you don't play a particular justice. You actually just ask what you think the hard questions are. And most of the - you have clerks, former clerks for almost every one of the justices in the office. So there's a wide variety of different views that are expressed at any time.

CONAN: And David Savage, as you're getting ready for the Supreme Court session, we've talked about the two big issues of immigration in the Arizona law and the health care law, but there's obviously a lot of other things that are coming up, too.

SAVAGE: On Monday morning, for example, there's a big case in the health care Medicaid issue. It comes from California. And the question is: Can hospitals, doctors, pharmacists, go to court and object when the state greatly reduces the payments to Medicaid providers?

California has got real budget problems. Under Arnold Schwarzenegger and now Jerry Brown, they've been passing these 10 percent cuts in payments. And doctors went to court, hospitals went to court and said this is below the cost of service, we can't function. We can't serve the patients if you're going to do that.

The 9th Circuit court has stopped some of those budget cuts. The administration and 30 states are in the Supreme Court saying throw out all these suits. And so that's one that is a little bit abstract, it probably won't get a lot of news attention, but it'll have a big impact on health care and the funding because every state wants to cut back how much money they're putting into Medicaid because they're - they've got budget troubles.

CONAN: And every term, it seems, there's a case involving police powers and technology. And there's an interesting one coming up on the use of GPS devices.

SAVAGE: Yes, this is a big deal about, as you said, the right to privacy, technology, and the case arises from a situation here in Washington where some agents in the police wanted to track a guy, and they put a GPS device on his Jeep, which allowed them to track his movements for a full month. And he was arrested and convicted of drug - being involved in a drug operation.

The Court of Appeals threw it out and said this was an unreasonable search. And the question is: Do you have any right to privacy when you're traveling in public, or can the government use some sort of tracking technology that tracks you everywhere you go, and even if they don't have a warrant and don't - theoretically don't have any particular reason to suspect you.

They just want to follow a lot of people. Can they track people with no warrant, using some tracking technology? So it's a potentially big issue.

CONAN: Neal Katyal, this is - I'm not sure you can talk about this specific case, you may have been involved in it at some point, but this comes under the principle of, in other cases, the justices have ruled that if you're watching people in public spaces, you don't necessarily need a warrant.

KATYAL: Exactly, so yes, this is another one in which I wrote the cert petition asking the court to hear the case. So I'll be a little bit more circumspect than on some other topics. But you're absolutely right. What the government said here is that the Supreme Court has said explicitly that it is permissible for law enforcement agents to follow people around if they're in public view. Obviously, the Fourth Amendment precludes kind of them going into a private home or something like that.

CONAN: Even with their devices.

KATYAL: Exactly. But here, this is material that is in a public view, and so the question that the case poses is a really hard one for the technology and the law, which is as new technologies develop that allow governments to aggregate data in ways that weren't just technologically possible before, should our meaning of the law change accordingly.

And it's not just, of course, governments. It's also private entities, as well, that can collect massive amounts of information now in ways that they couldn't before. So it makes it a really fascinating case.

CONAN: David?

SAVAGE: Well, I was going to say, as Neal said, normally you would think this person wouldn't have much of a claim because he was traveling on a public street. But suppose some state says from now on, we're going to put a little tracking device in all the new license plates for every car that we issue. And we want to actually track everybody in our state because we want to see for suspicious movements or patterns.

And the question is: Would most Americans think that that seems like an unreasonable search, or is that some sort of power that the government should have?

KATYAL: I would say that's one way of thinking about it. Another way of thinking about it is that those types of policies are constrained by politics and by appropriate good policy and that governments wouldn't do such a thing. And it may not be as much of a question about the Fourth Amendment as much as a policy question about what governments should be doing in the future.

CONAN: Let's get another caller in. Tracy's(ph) on the line calling from Kingfisher, Oklahoma.

TRACY: Hello?

CONAN: You're on the air, Tracy, go ahead, please.

TRACY: Hi, yeah, I'm anxiously looking forward to finding out when the Supreme Court's going to start hearing some cases about DOMA and the Defense of Marriage Act and doing away with that, making that unconstitutional, especially for gay and lesbian folks. I just keep patiently waiting.

I keep thinking the California case is going to make it, but it's over here at appeals for the nth time, you know, and so I'm just kind of wondering if you guys know anything about any of those cases coming up or that case coming up.

CONAN: David Savage?

SAVAGE: Those cases are on the way, Tracy, but probably not this term. There's a case in Boston that's on DOMA. The DOMA cases right now involve the question of: Suppose a gay couple is legally married in Massachusetts. Can the federal government deny them the equal benefits that other married couples get?

I think that's a very - that's the kind of argument, when it gets to the Supreme Court, I'll predict that the court would rule for the gay couples and say that kind of discrimination is unconstitutional. But that case is at least a year away because it hasn't been heard yet in the court in Boston.

The case from California theoretically poses a much bigger issue, which is: Do all states have to authorize same-sex marriage because denying it violates the Equal Protection Clause? And as you suggested, that case is also another year or two away because it's hung up in appeals in the 9th Circuit. So they're coming but not this year.

TRACY: Wow, wow. It's amazing how long it takes to get that done.

CONAN: Neal Katyal, a lot of people are frustrated with how long it takes to even get cases reviewed before the Supreme Court.

KATYAL: That's true, although I would point out that the court's actual rules are very fast. So once there's a lower court decision, the party that lost has just a couple months to ask the Supreme Court to hear it, and then the other side only has 30 days to respond to that. And then the case will be heard and decided all within a period that's at most nine months.

So really start to finish, Supreme Court adjudication is about a year long. Normally when we talk about delays in the court system, it's not as much at the Supreme Court level as in the district court and in the courts of appeals.

CONAN: I agree with you, though, Tracy. From both our vantage points, it can seem glacial at times. But anyway...

TRACY: It does. Thank you.

CONAN: Thanks very much for the phone call. Let's see if we can go next to - this is Cindy(ph), Cindy with us from Burlington in Wisconsin.

CINDY: Hi, hey, just a quick question, back to that GPS issue. Is that - aren't they trespassing by putting a device on somebody's private vehicle? Now isn't that against the law because you have to have a warrant to go into a place?

KATYAL: That's a great question, Tracy, and indeed...

CINDY: Cindy.

KATYAL: Cindy, excuse me, Cindy. And indeed, one of the judges in the Court of Appeals raised precisely that concern and said he was concerned that there was a kind of property trespass element to what the government was doing here.

What the government says is that it is a routine thing in law enforcement to have kind of minor intrusions on properties. The common example that we're all familiar with is the chalking of car tires by people who do the meters and so on. And if you see, you know, the attachment of a minor device that, you know, a small device that isn't obtrusive in any way is like the chalking on the tire, then it seems like a permissible thing for the government to do. And, of course, there are arguments on both sides of that question.

SAVAGE: You have...

CINDY: That was the big question for me, so.

CONAN: OK. Thanks...

CINDY: Thank you.

CONAN: Thanks for the call. David?

SAVAGE: You have sharp listeners, Neal, because I think that's - if the government loses this case, I think that's going to be what tilts some votes the other way. That is that you want - snuck up to somebody's car and put this on his car.

CONAN: Spider tracker. I remember that from the comic books. John(ph) is on the line, calling from Maple Grove in Minnesota.

JOHN: Yeah. I'm wondering if your guests have any insights on whether a search is going to be petitioned for in the Myriad gene patent case, and, you know, if so, how is it likely to come out? I know, Solicitor General Katyal, you know, argued before the federal circuit on the case, I don't know the extent to which he can comment. But it's an interesting situation where the Patent Office has been granting gene patents, and then the Justice Department went in and argued against the practice at the appellate court level.

KATYAL: Well, I think that I'll say the following about it. I can't comment as to whether or not a cert petition will be filed. But it's an enormously interesting question. The question in the case is whether or not that patents on breast cancer genes 1 and 2 are permissible under our patent laws. Our patent laws permit patents for inventors when they have a new and useful product or composition of matter or process, but there's always been an exception. The Supreme Court has said when there's something that is a product of nature, something that exists in nature.

And here, the patents that were sought were patents that literally are for the genes in different people's bodies. They weren't manipulated in any way. And so that's why the U.S. government took the position that it did. And we'll find out, I think, in the months to come whether or not a certiorari petition will be filed. If it is, it would be an enormously important case for the future of medicine.

CONAN: John, thank you.

JOHN: Thank you.

CONAN: The difference being if, for example, in various gene engineered plants, you're changing something so a patent could be granted?

KATYAL: Exactly. The Supreme Court in 1980, in the case called Chakrabarty, said that it was permissible to issue patents when the engineers were manipulating natural materials in one way or another. But the argument here that the government is saying is that if you're literally just isolating something that exists in nature, you can't patent it, just as you can't patent the pollen on a flower or something like that, even if it is a blockbuster drug that you can get from the pollen.

CONAN: We're talking about the upcoming Supreme Court session. Our guests, Neal Katyal, who you just heard, former acting solicitor general of the United States under President Obama, and David Savage, Supreme Court reporter for the Los Angeles Times and the Chicago Tribune. You're listening to TALK OF THE NATION from NPR News. And here's an email question that goes back to the health care law. This from - I'm not sure who - Dieter(ph) in Stateline, Nevada.

Auto insurance is mandatory in many states. It protects other drivers from financial consequences. How is health insurance different? Well, it goes across state lines for one thing, David, but how - I'm sure that argument has been made.

SAVAGE: Yes. I was going to say it's a good common-sense argument. It makes a lot of sense. There's a good analogy. The legal answer, if you want it, is that states can do a lot of things that the federal government can do, and that's what lawyers will tell you. States can do that. The federal government, they say couldn't do it.

CONAN: And indeed, there's an individual mandate in Massachusetts under their law.

KATYAL: Correct.

SAVAGE: Correct. And nobody thought that was unconstitutional.

CONAN: But it's across state lines, and that gets to the interstate Commerce Clause, right?

SAVAGE: Exactly. And one of the arguments that the government is making here is that you can't just have individual states do it on their own because every state has an incentive not to do it because, yeah, sure, Massachusetts did. But most states won't because if they do enact laws that provide for generous insurance, then it will become a magnet for people to move into those states, particularly those people who are already sick. And so that's the need for a national solution to the problem.

CONAN: Let's see - we go next to - this is David. David with us from Chesapeake in Virginia.

DAVID: Hi. Thanks for taking my call. Yeah, some really interesting, you know, cases going on. One, the health care and the GPS and immigration and so forth. And, you know, I'm definitely watching all of them. My opinion is and I have been studying law for five years, and I've been operating in the arena - regulatory arena, specifically Clean Water Act for about 20 years. I'm definitely pro-health care mandated. I'm against the location devices put on personal property.

You know, and as far on the other things, you know, it's - I think my biggest disappointment is is that a lot of these laws that are being argued and debated are a heck of a lot easier and simpler than what everyone seems to be politically making them out to be. I think they're making just a complete mess of it. You know, and one of the ways that I found that out to be so obvious was when I used to work for one of the largest homebuilders in the nation, Centex Homes. And they were in a huge bind with the Department of Justice.

And both the attorneys on both sides were just, you know, really made the whole issue very convoluted. Centex Homes hired me in 2005 as an expert...

CONAN: And, David, I have to ask you a little like a justice here to sum it up.

DAVID: Sure. Well, I really think that the attorneys are not fighting this or arguing these things as a benefit to the population or, you know, to the business that I think that they're arguing it just for a huge political stance.

CONAN: Ah, there's too much politics in it, right?

DAVID: Yeah.

CONAN: Because the issues may be simple that - I've heard the health care law called a lot of things. I haven't heard it called simple. But, Neal Katyal, I wonder if you just had a brief response.

KATYAL: Well, I think that there's undoubtedly an element of politics in any, you know, high-stakes legal question. But I think here the litigants on both sides, the lawyers for the states, Paul Clement and others, a former solicitor general, and the lawyers for the president, Don Verrilli, the new solicitor general, have really both just, I think, tried to approach this straight up as a question of law to the extent they can, obviously, with politics surrounding it. But these are legal questions. And I'm sure that's how the Supreme Court will view it as well.

CONAN: All right. Thanks very much for the call, David.

DAVID: Thanks.

CONAN: And we're going to continue this conversation with David Savage of the Los Angeles Times and the Chicago Tribune. Neal Katyal, can you stay with us for a few more minutes?

KATYAL: Absolutely.

SAVAGE: Great.

CONAN: To a few more calls. And we'll also be talking with actress Claire Danes about her new role as a Central Intelligence agent who thinks a Marine POW may have started to work for al-Qaida. So stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.


CONAN: In a minute, we'll be talking with Claire Danes, the actress, but in the meantime, we're wrapping up our conversation about the upcoming Supreme Court session with David Savage of the Los Angeles Times and the Chicago Tribune, and Neal Katyal, the former acting solicitor general of the United States under President Obama. Let's see if we get another caller in. This is Russ(ph), and Russ is on the line from Kansas City.

RUSS: Yes. I'm calling about the immigration debate. And it occurs to me the U.S. isn't just some sort of Venn diagram if you (unintelligible) but not in another. If you have a county that has speed limits, local policemen are expected to enforce those speed limits, even if there aren't any locally posted ordinances for the given speed. If you're in the U.S., you're in the U.S.'s jurisdiction, and I believe that any officer within a jurisdiction should be permitted to enforce any law.

It'd be like the city of Los Angeles saying, yeah, well, kidnapping is a federal thing. If somebody kidnaps somebody, we'll just tell the feds and let them chase it. We'll see - we'll keep eating doughnuts. It's a two-way street. The police are - they swear to the Constitution. They swear to the U.S.

CONAN: I think...

RUSS: They might as well be able to enforce the bleeding laws of the U.S. (unintelligible).

CONAN: I think the police in Los Angeles eat croissant, but, anyway, not doughnuts. But...

RUSS: (Unintelligible) it's further north.


CONAN: Anyway, David Savage?

SAVAGE: Well, that is the argument that Arizona has made and will make, which is we are cooperating with the federal government. We're not doing anything that's in contradiction. We're just trying to help out by arresting or holding illegal immigrants. So that's their argument. We're cooperating. The federal government says we don't really want local police getting involved in immigration enforcement.

CONAN: And, Neal Katyal, it's also the question of the Arizona law, as I remember it, says police officers can stop someone in the course of their regular duties. In other words, they're not going to be going around doing raids, looking for illegal immigrants.

KATYAL: But there is this fear that the - and the government has submitted affidavits from the State Department and the like that Arizona or other states would engage in over-enforcement of the law in ways that could be detrimental to foreign policy, that is immigration is integrally bound up with foreign affairs. And we generally do not in this country allow states to conduct a foreign policy that is adverse to the United States government more generally.

If I could just say one other thing for your listeners that they might be interested in watching, we've been talking about specific cases. But one thing to look out is just voting alignments at the court. Last year, it was pretty striking that Justice Kagan on her first term on the court agreed with Justice Sotomayor 94 percent of the time. And the only pair that did better than that that agreed more often was the chief justice, Chief Justice Roberts, who agreed with Justice Alito 96 percent of the time. Those are the four most recent justices, and they're developing - at least if one term is evidence can be any sort of reliable guide - but they seem to be in some sort of lockstep with each other, and they're obviously both pairs that were nominated by the same president.

CONAN: Of course, Justice Kagan, your former boss.

KATYAL: Exactly.

CONAN: Interesting. OK. Thanks very much, Neal Katyal, for joining us today and also David Savage of the Los Angeles Times and the Chicago Tribune. We'll all be following these cases when the rulings come down. Coming up, we'll be talking with Claire Danes. Stay with us. It's the TALK OF THE NATION from NPR News.

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