Arizona’s Immigration Law at the Supreme Court

Can states enforce federal immigration law?

Adam Freedman
May 16, 2012

Today’s topic: Arizona’s immigration law at the Supreme Court.

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Is the Arizona Immigration Law Constitutional?

In April 2010, Arizona’s governor signed a law known as SB 1070 designed to crack down on illegal immigration. Although the law immediately provoked controversy and opposition, it also attracted quite a few sympathizers. Since 2010, at least 5 other states have adopted measures similar to the Arizona law to deter illegal aliens.

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President Obama Sues Arizona

But the Arizona law has come in for harsh criticism among civil libertarians and immigration activists. I discussed the original arguments for and against the law in an earlier episode back in 2010. But since then, the Obama administration has sued Arizona, arguing that the law is unconstitutional. On April 25, 2012, the Supreme Court heard argument on the validity of the law. In this article, I’ll explain what issues that Court considered and which way the Court might decide.

What Does the Arizona Immigration Law Say?

Although the Arizona law contains many provisions, the legal challenge to SB 1070 focuses on just 4 sections of the law. They are:

  • Section 2(B), which requires police officers to verify the immigration status of people whom they stop or arrest if they have a “reasonable suspicion” that the person might be in the U.S. illegally;

  • Section 6, which allows a police officer to arrest someone without a warrant if the officer believes that the person committed a crime that could get him deported;

  • Section 3, which makes it a crime to be in Arizona without proper immigration papers; and

  • Section 5, which makes it a crime for illegal immigrants to seek or accept employment in Arizona.

The Case is Not About “Racial Profiling”

Some critics of SB 1070 have argued that the law encourages racial profiling against Hispanic people. That argument, however, will not be part of the Supreme Court’s decision. Contrary to some expectations, the Obama administration did not argue that the law is discriminatory or is likely to foster discrimination. 

Federal Law is Supreme

Instead, the Obama Administration’s legal challenge is based on a doctrine known as “preemption.” Under this doctrine, when the federal government legislates in an area within its authority, it pre-empts all state legislation on the same subject. 

When it comes to immigration, the federal government clearly has authority. The Constitution empowers Congress to establish a “uniform Rule of Naturalization,” and the Supreme Court has expressly upheld federal supremacy in this area since the late 19th  century. But how broad is this area of supremacy? Strictly speaking, rules of naturalization dictate who can enter the country and the conditions under which they can remain here. Nothing in the Arizona law changes the federal rules of naturalization. Instead, it simply adds certain measures of state enforcement to what the feds are already doing. Thus the administration is relying on a concept of “implied preemption,” which means that federal immigration law preempts state laws that don’t literally conflict with federal law, but which might interfere with the executive branch’s strategy for implementing federal law.

States Have Police Power

For its part, Arizona argues that nothing in the Constitution or federal law prevents a state from passing laws to help enforce federal immigration standards. Indeed, since states are said to have a general “police power” (the power to maintain order and guard health and safety), Arizona argues that it was bound to take action to protect its citizens from dangers arising from large-scale illegal immigration. 

The Supreme Court has Allowed Some State Laws on Immigration

The Supreme Court has previously held that states can use their police powers to discourage illegal immigration. In 1976, the Court upheld a California law prohibiting businesses from knowingly employing unauthorized aliens. The Court said that states can regulate illegal immigrants in a manner consistent with federal law, provided they are trying to protect a vital state interest. In the case of Arizona, the law’s proponents say that Arizona has a vital interest in fighting human smuggling and kidnapping along the border.

A Split Decision?

The Supreme Court’s decision will affect not only Arizona, but also the other states that have adopted, or are considering, similar laws. During oral argument, the Justices appeared skeptical of the government’s “implied preemption” argument, at least as it relates to sections 2(B) and 6, which simply expand the powers of state and local police officers to enforce federal immigration laws. But they seemed more sympathetic to the arguments against sections 3 and 5, which add new state crimes based on illegal status. Arguably, those sections interfere with the federal government’s exclusive power to define the rules of naturalization. 

One final consideration is that only 8 Justices are participating in this case – Justice Elena Kagan recused herself because of her previous role in the Obama Administration. If the Justices split evenly 4 to 4, then the lower court’s decision, which enjoined enforcement of all 4 provisions of the law, would stand. A decision in this case is expected by late June 2012. Stay tuned!

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