The Supreme Court recently reviewed an Arizona law that targeted undocumented immigrants the state. The Supreme Court reviewed four specific provisions, finding that three were preempted by federal law, while a fourth could possibly be implemented lawfully and thus survived the challenge for the time being.
The State of Arizona passed the Support Our Law Enforcement and Safe Neighborhoods Act (“the Act”) in April of 2010. Under the Act, Arizona sought broader immigration enforcement powers, which proponents claimed would help alleviate ailments linked to undocumented residents, but which opponents characterized as harassment of Latinos, lawful immigrants, and working-class people.
The Act contained several highly controversial provisions. Section 3 made failure to comply with federal alien registration requirements a misdemeanor offense under state law. Section 5(C) made it a misdemeanor for an unauthorized alien to seek or engage in work in the State. Section 6 authorized 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.” Section 2(B) provided that officers who “conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the Federal Government.” To ameliorate some of the controversy surrounding the law, the Act also prohibited the consideration of race, color or national origin in implementing the Act “except to the extent permitted by the United States or Arizona Constitution.”
Before the law could be implemented, the United States sought an injunction in the United States District Court for the District of Arizona on the grounds that the Act was preempted by federal law. The district court enjoined Arizona from enforcing the most controversial aspects of the Act, finding that the Act was probably in conflict with and preempted by federal immigration law. The State of Arizona sought review before the United States Court of Appeals for the Ninth Circuit. The appellate court affirmed the decision of the district court. Arizona again appealed, seeking review by the United States Supreme Court. The Supreme Court affirmed most of the Ninth Circuit’s decision and partially reversed. In its ruling, the Supreme Court provided a broad analysis of the federal government’s authority to regulate immigration and then analyzed each of the four controversial aspects of the Act.
The Supreme Court noted foremost that under Article 1, Section 8, Clause 4 of the U.S. Constitution, it is the federal government, not the states, which have authority to regulate immigration. The Supreme Court noted the pragmatic reasons for this, explaining, among other things, that “[i]mmigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.” Furthermore, “[p]erceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.” Moreover, “[i]t is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”
As a result, the federal government has created an “extensive and complex” set of laws governing immigration and agencies such as the United States Customs and Border Protection (“CBP”) and Immigration and Customs Enforcement (“ICE”) to enforce those laws. These laws, and federal control over their enforcement, allow the federal government to: set delicately considered penalties for violations; enforce laws in such a way as to be sensitive to international diplomacy; consider an alien’s place in the United States, such as whether the alien has longstanding ties to a community or a record of service in the U.S. military; and consider an alien’s motivation for being in the United States illegally, such as whether he or she has fled a war zone or political persecution, has entered the United States to better provide for his or her children, or has entered the United States to engage in criminal enterprise.
Having noted such broad authority, the Supreme Court then explained federal preemption doctrine. While federal regulations often allow for some supplementary state and local regulation as well, some fields are so thoroughly regulated that “Congress left no room for the States to supplement [them]” or there is a “federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” The Supreme Court then explained that under the Supremacy Clause of the Constitution, state laws that conflict with federal laws are not valid. Noting the broad federal authority to create, regulate, and enforce immigration laws, federal supremacy, and the ability of the federal government to preempt state regulation through extensive regulations, the Supreme Court set about a section-by-section analysis.
In its analysis of Section 3, which made failure to comply with federal alien registration requirements a misdemeanor offense under state law, the Supreme Court recounted that since 1940, the federal government had instituted a complete scheme for the registration of aliens in the United States. Thus, the federal government had occupied the field of alien registration; the Supreme Court added that it would be unwieldy to allow every state to enforce immigration laws on their own terms and in their own courts. Arizona argued that because the Act was parallel to federal law, it would not create any confusion and could survive. The Supreme Court found this unpersuasive, noting that the Act diverged significantly from federal law in terms of enforcement; federal law would permit a fine, probation, or imprisonment in the event of a violation, and it was possible to receive a pardon for a violation. In contrast, Section 3 would not allow for probation or a pardon; thus its enforcement mechanism was in conflict with federal law. Even if Arizona’s claims that the laws were parallel were true, the Supreme Court again noted that where the federal government had occupied a field, states simply could not supplement federal laws in any way. Thus, Section 3 was preempted.
The Supreme Court then explained that Section 5(C), which made it a misdemeanor for an unauthorized alien to seek or engage in work in the State, created a criminal violation without similar federal provision. In the past, states had possessed the authority to regulate alien employment within their borders; indeed in 1971, California passed a measure regulating alien employment which was upheld by the Supreme Court in De Canas v. Bica, 424 U. S. 351 (1976). However, when Congress passed the Immigration Reform and Control Act of 1986 (“IRCA”), it occupied the field of alien employment. IRCA could potentially impose civil penalties against aliens unlawfully working in the U.S., but the federal law did not make unauthorized employment a criminal matter and did not allow for imprisonment. Indeed, the record showed that Congress had considered criminal penalties for unauthorized alien employment but a Congressional report found such a measure to be “unnecessary and unworkable.” Accordingly, Section 5(C) was in conflict with federal law and was an imposition in a federally occupied field; thus, this provision was preempted.
With regard to Section 6, which authorized officers to arrest without a warrant a person suspected of committing an offense making that person removable from the United States, the Supreme Court found that the Act attempted to provide law enforcement officers with greater arresting authority than was permitted under federal law. Indeed, federal law does not generally make it a criminal matter for an alien to remain within the United States without authorization. Thus, if police conduct a stop solely because they believe an individual is removable, the normal criminal predicate for an arrest is absent – in other words, people could be arrested even though there was no probable cause to believe they had committed a crime. Instead, when an alien is suspected of being removable, federal officials usually issue an administrative Notice to Appear at an immigration proceeding wherein removal may be ordered. Arizona’s Act intended to provide much greater authority to law enforcement officers than federal law permitted, and would lead to harassment of aliens that the federal government would likely determine should not be removed, such as the elderly, veterans, students, or people aiding in a criminal investigation. Thus, Section 6 violated federal law which entrusts discretion in removal matters to the federal government rather than the states and was preempted.
However, the Supreme Court upheld Section 2(B), which requires state law enforcement officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” The Supreme Court noted concerns that under the Act, law enforcement officers would be required to attempt to ascertain immigration status, even of people who very likely would not be deported in any event, such as elderly veterans, and that detaining individuals for a significant amount of time solely to determine their immigration status may well violate the Fourth Amendment. However, the Supreme Court added that it was premature to strike Section 2(B) as it could, theoretically, be interpreted and enforced in a manner consistent with the Constitution. Thus, although Section 2(B) may ultimately be challenged or found unconstitutional on other grounds or based on the way it is applied by Arizona, it is not inherently in violation of the Constitution, contradictory of federal law, or precluded by preemption doctrine.
Justice Kennedy delivered the opinion of the Supreme Court, in which four other Justices joined. Three additional Justices concurred with Kennedy’s opinion in part but also dissented in part. Justice Kagan, who had worked on this matter in her previous role as Solicitor General, took no part in the decision of the case.
The case, Arizona v. United States, can be read here.