U.S. SUPREME COURT REAFFIRMS FEDERAL CONTROL OVER IMMIGRATION

In Arizona v. United States, 567 U.S._____(2012) (Decided June 25, 2012), the United States Supreme Court ruled on Arizona statute S.B. 1070.

Specifically, the Supreme Court ruled on the constitutionality of four parts of the Arizona statute. Enforcement of these four sections had been enjoined (stopped) by a district court order that was subsequently affirmed by the 9th Circuit Court of the United States.

In the decision, the Supreme Court upheld the injunction against three of the four sections of the Arizona law, but overturned the injunction against the fourth section (“show me your papers”). A brief analysis of these four sections and the impact of the Court’s ruling follows:

Section 3- Failure to comply with federal alien-registration requirements- a state misdemeanor

The Supreme Court held that Section 3 of the Arizona statute “intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate.” (Syllabus)

2. Section 5(C) of the Arizona statute- It is a misdemeanor for an unauthorized alien to seek or engage in work in the state.

Section 5(C) was likewise struck down as an obstacle to the federal regulatory system. The IRCA (Immigration Reform and Control Act) of 1986 established a comprehensive framework for combating the employment of illegal aliens. Therefore, Section 5(C)’s imposition of a criminal penalty on an alien conflicts with federal law, as such is “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

3. Section 6 of the Arizona law authorizes State and local 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.”

This may have been perhaps the most offensive part of the Arizona statute. The Supreme Court ruled that by authorizing State and local officers to make warrantless arrests of certain aliens suspected of being removable, Section 6 of the Arizona law created an obstacle to federal law. The Court ruled that as a general rule, it is not a crime for a removable alien to remain in the United States. The federal law clearly instructs when it is appropriate to arrest an alien during the removal process. Section 6 of the Arizona law attempts to provide State officers with even greater arrest authority, which they could exercise with no instruction from the federal government. This was, the Supreme Court indicated, not the system that Congress had created. Further, federal law specifies limited circumstances in which State officers may perform an immigration officer’s function. This includes instances where the Attorney General has granted that authority in a formal agreement with a State or local government (INA § 287 (g) agreements).

Consequently, the Court also struck down Section 6 of SB 1070.

4. The Court upheld SB 1070 Section 2 (B), which requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person’s immigration status with the federal government.

The Supreme Court indicated that this provision would likely survive federal preemption until there was some showing that the provision had other consequences that would be adverse to the federal law and its objectives. The Supreme Court reasoned that the law had not yet been tested in the State courts and without the benefit of a definitive interpretation from the State courts, it would be inappropriate to assume that SB 1070 Section 2 (B) would be construed in a way that conflicts with the federal law.

However, even in upholding this provision, the Supreme Court left the door open to future challenges. For instance, if State officers delay the release of detainees for no other reason than to verify their immigration status, this would raise constitutional concerns. It would also disrupt the federal framework to put State officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. If aggrieved individuals were also able to show that the law was disproportionately applied, this could give grounds to a challenge based on racial profiling. It would also be incumbent on the State of Arizona to develop protocols for its police officers to determine which “circumstances” warrant inquiry about immigration status.

Consequently, the Supreme Court left standing Section 2(B) of the Arizona statute but struck down the other three sections that had been challenged and previously enjoined.

It now remains to be seen how Arizona law enforcement officials implement Section 2(B) of the statute and what constitutional claims a detainee may bring – if any – following such detention.