SCOTUS: 3 of 4 contested provisions of SB1070 are unconstitutional

The U.S. Supreme Court today released its much-anticipated opinion in Arizona v. United States, No. 11-182, slip op. 2-5 (U.S. June 25, 2012), the case concerning Arizona’s SB 1070 legislation. Justice Kennedy wrote the majority opinion that was joined by Justices Roberts, Ginsburg, Breyer, and Sotomayor. Justices Scalia, Thomas, and Alito dissented in part and concurred in part. Justice Kagan did not participate in deliberations.

Of the four SB 1070 provisions before the Court, only one survived constitutional challenge: the provision allowing state police officers to investigate the immigration status of anyone they reasonably suspect is unlawfully present and that requires officers to check the status of everyone arrested.

To frame its discussion, the majority opinion began by emphasizing the federal government’s paramount role in regulating immigration as an aspect of its foreign policy prerogative. Arizona v. United States, No. 11-182, slip op. at 2-5 (U.S. June 25, 2012). As expected by legal analysts, the Court then turned to the crux of the legal question: whether SB 1070’s four contested provisions conflict with the U.S. Constitution’s Supremacy Clause. In other words, is SB 1070 preempted by the federal constitution?

The Court began with § 3 that, the Ninth Circuit explained in the decision that the Supreme Court was reviewing, “essentially makes it a state crime for unauthorized immigrants to violate federal registration laws.” United States v. Arizona, 641 F.3d 339, 355 (9th Cir. 2011).

Relying on Hines v. Davidowitz, 312 U.S. 52 (1941), in which the Court held that Pennsylvania was preempted from adopting its own laws requiring noncitizens to register given that Congress had already adopted a “complete scheme” for this, the Court held “that the Federal Government has occupied the field of alien registration.” Arizona, No. 11-182, slip op. at 9. “Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible….even if it is parallel to federal standards.” Arizona, No. 11-182, slip op. at 10. Later, the Court added that Arizona’s law doesn’t parallel the federal law because the federal scheme allows probation to be issued as a punishment for violating the federal registration requirement but Arizona does not allow probation. Arizona, No. 11-182, slip op. at 11.

The Court roundly dismissed Arizona’s claim that it could enact its own punishments for activities that are penalized by the federal government. Not only does this claim “ignore[] the basic premise of field preemption,” the majority wrote, it would also “conflict with the careful framework Congress adopted” by allowing state officials “the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.” Arizona, No. 11-182, slip op. at 11.

As such, section 3 is preempted. Arizona, No. 11-182, slip op. at 11.

The Court then turned to § 5(C) that makes it a state crime for an undocumented person to apply for, solicit, or perform work in Arizona. United States v. Arizona, 641 F.3d 339, 357 (9th Cir. 2011). The Court began by noting that federal law today is “substantially different” from what existed in 1971 when California imposed civil penalties on employers who hired undocumented workers and the Court held that this was not preempted by the U.S. Constitution. Arizona, No. 11-182, slip op. at 12 (discussing De Canas v. Bica, 424 U.S. 351 (1976)).

Most significantly, the Immigration Reform and Control Act of 1986 (best known as the Reagan era amnesty law) provided a “comprehensive framework for ‘combating the employment of illegal aliens.’” Arizona, No. 11-182, slip op. at 12-13 (quoting Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)). IRCA, the Court noted, imposes civil penalties on undocumented workers, but “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” Arizona, No. 11-182, slip op. at 13.

Section 5(C), the Court concluded, “would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens” precisely because it criminalizes conduct that Congress chose not to criminalize—namely, working without the government’s permission. Arizona, No. 11-182, slip op. at 15. Accordingly, § 5(C) is preempted.

The Court then addressed § 6 that permits warrantless arrests if probable cause exists that a suspect “has committed any public offense that makes the person removable from the United States.” United States v. Arizona, 641 F.3d 339, 360 (9th Cir. 2011).

The Court began its discussion by noting that federal law has detailed instructions on how federal officers are to proceed when they encounter someone who might be removable, including criteria for arrest, detention, and the initiation of removal proceedings. Arizona, No. 11-182, slip op. at 16-17.

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.” Arizona, No. 11-182, slip op. at 17. Authorizing state officers to arrest someone they believe is removable by reason of having committed what the Arizona statute refers to as a “public offense,” the Court explained, “would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.Arizona, No. 11-182, slip op. at 17. Suffice it to say, “[t]his is not the system Congress created.” Arizona, No. 11-182, slip op. at 17.

That system places responsibility for investigating possible immigration law violations in the hands of the federal government. Arizona, No. 11-182, slip op. at 18. “A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice.” Arizona, No. 11-182, slip op. at 18.

This is not to say that the states have no role in enforcing immigration law. Congress has enacted several provisions under which this is possible—including, most famously, INA § 287(g)—but SB 1070 does not operate within that authority. Arizona, No. 11-182, slip op. at 17.

Moreover, SB 1070 can’t be construed as “cooperation” with the federal government, which would bring it within INA § 287(g)(10), a provision that authorizes state officials to cooperate in the investigation and enforcement of immigration law. “There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.” Arizona, No. 11-182, slip op. at 18.

As such, § 6 is preempted.

Finally, the majority turned to § 2(B) which requires that police officers check the immigration status, where practicable, of all people stopped, detained, or arrested “where reasonable suspicion exists that the person is an alien and is unlawfully present” and “requires officers to verify—with the federal government—the immigration status of all arrestees before they are released, regardless of whether or not reasonable suspicion exists that the arrestee is an undocumented immigrant.” United States v. Arizona, 641 F.3d 339, 347 (9th Cir. 2011).

Insofar as § 2(B) requires Arizona police officers to consult with the federal government about a person’s immigration status, the Court explained that this section is not preempted. Congress has not enacted any law barring states from communicating with the federal government about a person’s immigration status, even where the state officer has no leeway to abide by the federal government’s chosen enforcement priorities. Arizona, No. 11-182, slip op. at 21.

The Court was more circumspect about § 2(B)’s requirement that officers check the immigration status of everyone arrested. “Detaining individuals solely to verify their immigration status would raise constitutional concerns. And it would 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.” Arizona, No. 11-182, slip op. at 22 (internal citations omitted).


“But § 2(B) could be read to avoid these concerns,” the Court wrote. Arizona, No. 11-182, slip op. at 22. If Arizona’s state courts, which will be tasked with interpreting § 2(B) in the first instance since it’s a state law, interpret this provision as requiring officers to investigate immigration status only during the course of a detention that they are independently authorized to conduct (i.e., for a reason that state officers are undisputedly allowed to detain someone) or after a person has been released, then § 2(B) is likely to survive a preemption challenge. Arizona, No. 11-182, slip op. at 23.


(The constitutionality of the first example would possibly find support in Muehler v. Mena, 544 U.S. 93 (2005), in which the Court held that a woman who was lawfully detained while officers executed a search warrant could also be asked about her immigration status. In Muehler, the immigration questioning was deemed permissible because it did not constitute a separate Fourth Amendment activity from the lawful search that justified her detention.)


The Court explicitly elected not to address whether § 2(B) would survive a preemption challenge where detention is prolonged based on reasonable suspicion that the detainee unlawfully entered the USA, a federal crime. Arizona, No. 11-182, slip op. at 23.


Importantly, the Court made a special effort to explain that its conclusion on § 2(B)’s constitutionality is in part affected by the preliminary nature of this case. Since this law hasn’t been put into practice, state courts haven’t had the opportunity to interpret it. As such, the Supreme Court does not know how it will be construed—in a way that will conflict with federal law or not. Arizona, No. 11-182, slip op. at 24. In other words, there is plenty of room left through which to challenge § 2(B) once Arizona police departments actually start implementing it, and I’m sure that the good folks at MALDEF and other organizations in the trenches will jump on this opening.


Alternatively, the Obama Administration could refuse to initiate removal proceedings against individuals identify by Arizona officers acting pursuant to § 2(B). This is an unlikely option, but one that at least one activist organization is already urging.

As a side note, it was interesting to see the majority opinion cite well-known immigration restrictionists who work at an organization with allegedly white supremacist ties for the proposition that in Maricopa County “these [unauthorized] aliens are reported to be responsible for a disproportionate share of serious crime.” Arizona, No. 11-182, slip op. at 6. I haven’t looked at the report cited, but a century or so of data suggest that immigrants commit less crime than U.S. citizens so I’ll be taking a look at this report in the coming days.

So the majority opinion ends and the separate opinions begin. Justice Scalia, writing for himself, took an unusual course: he emphasizes the states’ inherent right to exclude or admit people as they so choose. This power, he says, is inherent because the states are sovereigns just like the federal government is a sovereign. So long as SB 1070 doesn’t admit someone into the country that federal law would exclude, or exclude someone that federal law would admit, then it’s not preempted, according to Scalia. He then goes on to explain why, in his view, none of SB 1070’s challenged provisions do this.

Before ending, though, Scalia takes a turn into recent immigration policymaking. President Obama’s recent decision to grant deferred action to some undocumented individuals represents “[a] Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.” Arizona, No. 11-182, slip op. at 21 (Scalia, J., concurring in part and dissenting in part).

He then veers into historical prognosticating, adding that if the states were electing today whether or not to join the Union, they would decline to do so based on the majority opinion. “Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test.” Arizona, No. 11-182, slip op. at 21 (Scalia, J., concurring in part and dissenting in part). I’ll leave it to readers to grapple with his explanation.

Before leaving Scalia’s opinion it’s worth quoting the zinger that’s sure to catch the attention of many: “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.” Arizona, No. 11-182, slip op. at 22 (Scalia, J., concurring in part and dissenting in part).

Justice Thomas, also writing for himself, explains that he would uphold all of the challenged provisions because, in his view, the ordinary meaning of the state law does not conflict with the ordinary meaning of any federal law. Arizona, No. 11-182, slip op. at 1 (Thomas, J., concurring in part and dissenting in part). Importantly, Thomas’s view is premised on the fact that he does not believe implied preemption exists. Arizona, No. 11-182, slip op. at 4.

Justice Alito, also writing separately for himself, agrees with the majority that §§ 2(B) and 3 are preempted. Arizona, No. 11-182, slip op. at 1 (Alito, J., concurring in part and dissenting in part). He would have held that §§ 5(C) and 6 are not preempted.

After oral arguments most commentators seemed to think the Obama Administration was in line for a big defeat. Today’s decision proved those predictions wrong, but more importantly shows that predicting how the Court will decide a case based on the oral argument is no easy task. Fortunately, we have folks like Ediberto Róman, a law professor at Florida International University, who have proven themselves reliable crystal ball gazers!



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