Beth Werlin, Deputy Legal Director for the American Immigration Council, discusses the recent...
Court Strikes Down Three Provisions of Arizona SB 1070, Allows One to Stand
Arizona v. United States, 567 U.S. ___, 132 S. Ct. 2492 (2012)
In a 5-3 decision written by Justice Kennedy, the Supreme Court found that three provisions of Arizona SB 1070 were preempted by federal immigration law and so allowed a preliminary injunction against those provisions to become permanent. The Court found that an additional section of the law was not preempted, but did not preclude future legal challenges to that provision. The decision affirmed in part and reversed in part a decision by the Ninth Circuit, see United States v. Arizona, 641 F.3d 339 (9th Cir. 2011).
The Court found that Sections 3, 5(C), and 6 of Arizona SB 1070 were preempted by federal law. Section 3, which would have made it an Arizona state offense for unauthorized immigrants to violate the federal law requiring them to apply for registration with the federal government and to carry a registration card, was found to intrude upon an area of law that Congress has entrusted entirely to the federal government. The Court also held that Section 5(C), which would have made it a state crime for immigrants without work authorization to apply for work, solicit work in a public place, or perform work in Arizona, was preempted by the comprehensive federal system that regulating unauthorized employment of noncitizens. Finally, the Court found that Section 6, authorizing law enforcement to arrest immigrants without a warrant where probable cause existed that they committed a public offense making them removable from the United States, was preempted by the federal immigration enforcement scheme, which only allows local police to perform the functions of federal immigration officers in limited circumstances. In so finding, the Court implicitly rejected Arizona’s argument that local police have inherent authority to make arrests for civil violations of the immigration laws.
However, the Court found that Section 2(B) of SB 1070 was not preempted on its face. Section 2(B) requires law enforcement officers to attempt to determine the immigration status of any individual who is arrested and of individuals who are stopped for a valid reason if the officer has reasonable suspicion the person is unlawfully present in the United States. The Court said the provision should be allowed to take effect but left the door open to future legal challenges. For example, the Court said the provision could be challenged if law enforcement officers stopped people solely to determine their immigration status, continued holding them in custody after they were entitled to release, or held people for immigration violations without federal direction or supervision.
Justices Scalia, Thomas, and Alito filed opinions concurring in part and dissenting in Part. Justice Kagan took no part in the consideration of the case.