Arizona v. United States – What Did the Supreme Court Decide - Articles

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Posted by: Christy Gibson on Jul 6, 2012

By Siskind Susser P.C.*

By a 5 to 3 majority, with Justice Kagan recusing, the U.S. Supreme Court, in Arizona v. United States, 567 U.S. __ (June 24, 2012), overturned three of the four disputed provisions of the Arizona immigration enforcement law, commonly known as S.B. 1070. The issue was "whether federal law preempts and renders invalid four separate provisions of the state law."  The Court reasserted the federal government's broad powers over the immigration laws, based on the constitutional power to establish a uniform rule of Naturalization and its inherent power as sovereign to control and conduct relations with foreign nations.  The Court also reasserted the United States system of federalism, as well as the principle of federal preemption of state law, based upon the Supremacy Clause.

In 2010, Arizona enacted a statute, S.B. 1070. The United States sued the State of Arizona, seeking to enjoin S.B. 1070 as preempted.  Specifically, these four provisions of the law were at issue: Sections 3, 5(C), 6, and 2(B). The U.S. District Court for the District of Arizona issued a preliminary injunction preventing the four provisions from taking effect, which the Ninth Circuit Court of Appeals affirmed. 

Section 3

Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor.  Specifically, it provides that "a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code Section 1304(e) or 1306(a)."  This section does not apply to a person who is authorized by the federal government to remain in the U.S.

The Court concluded Section 3 is preempted by federal law and addressed the principle of field preemption in reaching this conclusion.  Field preemption is one means by which federal law can be found to preempt state law, and it provides that "States may not enter, in any respect, an area the Federal Government has reserved for itself."  Such intent to preempt can be inferred from a framework of federal regulation so pervasive that Congress has left no room for state supplementation.

The Court cited Hines v. Davidowitz, 312 U.S. 52 (1941), which held Pennsylvania could not enforce its own alien-registration program.  In Hines, the Court found the federal registration plan to be a "single integrated and all-embracing system," which did not allow state intervention.  While the current federal alien registration system has changed somewhat since the 1940s, the Court determined it is still a "harmonious whole" governing registration and even providing penalties for noncompliance.  Apart from field preemption, the Court noted that the specific conflicts between federal and state penalties for noncompliance "simply underscore the reason for field preemption."

Section 5(C)

Section 5(C) makes it a misdemeanor for an unauthorized alien to seek or engage in work in the state.  Specifically, "[i]t is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state."

The Court concluded Section 5(C) is preempted, because it conflicts with federal law by "stand[ing] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."  Whereas, under De Canas v. Bica, 424 U.S. 351 (1976), states previously had the authority to pass their own laws regulating the employment of unauthorized aliens, this changed with the implementation by Congress of the Immigration Reform and Control Act of 1986 (IRCA).  The Court determined "Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment."  IRCA struck this balance due to concerns that criminalizing aliens engaged in unauthorized work would be inconsistent with federal policy due to the possibility of employer exploitation that aliens already face.  The Court concluded that this careful balance would be disrupted by state law implementing criminal penalties on aliens.

Section 6

Section 6 authorizes state officers to arrest without a warrant a person "the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States."

The Court concluded Section 6 is preempted, because it conflicts with federal law by "stand[ing] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."  Congress set up a federal statutory structure to inform when it is appropriate to arrest an alien during the removal process.  Where no federal warrant has been issued, the federal immigration officers have more limited authority.  The Court noted "Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers."

Federal law does allow for limited circumstances in which state officers may perform the functions of an immigration officer.  This includes the 287(g) program, whereby the federal government may grant said authority to specific officers in a formal agreement with state or local government.  However, these limited circumstances provide for the federal government's supervision and discretion.  Thus, the Court propounded, "Congress has put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances." 

Section 2(B)

Section 2(B) provides that for any lawful stop, detention, or arrest made by a state officer, "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person." This is the so-called “show me your papers” clause of SB 1070.

The Court concluded that it is too soon to enjoin Section 2(B) as preempted by federal law.  As determined by the Court, since Section 2(B) may fairly be construed in such a way as to avoid doubtful constitutional questions, this section has not yet gone into effect, there is a basic uncertainty as to the meaning of this section and the means of enforcement, and it is "inappropriate to assume [Section 2(B)] will be construed in a way that creates a conflict with federal law."

The Court was not persuaded by the federal government's argument that the mandatory nature of the status checks and the possibility of prolonged detention during status verification posed obstacles to Congress's immigration framework.  First, under 8 U.S.C. 1357(g)(10)(A), communication between federal and state officials regarding immigration status is encouraged even in the absence of any formal agreement.  Further, Congress has obligated Immigration and Customs Enforcement (ICE) to respond to any immigration status requests made by state officials.  Congress has placed no limits upon this communication even where a state requires its officers to make contact or where state officers make contact without considering federal enforcement priorities.  Thus, the Court found Congress "leaves room for a policy requiring state officials to contact ICE as a routine matter."

Second, while the Court acknowledged the constitutional concerns raised by detaining individuals solely to verify their immigration status, it noted that Section 2(B) can be read to avoid this concern based on the "reasonable attempt" language.  The Court acknowledged that if Section 2(B) only requires state officers to check immigration status during the course of a lawful detention or after release, "the provision likely would survive preemption--at least absent some showing that it has other consequences that are adverse to federal law and its objectives." Finally, the Court did state that it was not foreclosing other preemption and constitutional challenges to Section 2(B) as interpreted and applied after it goes into effect.

It remains to be seen whether Section 2(B) as implemented will create racial profiling. If so, this section of SB 1070 may not last very long. Time will tell.

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*Siskind Susser P.C. is one of the largest immigration law firms in the North America with offices in Memphis, Nashville and Atlanta and an affiliate office in Toronto. Their website is www.visalaw.com.