In a 5-3 decision issued Monday, the Supreme Court upheld the core provision of Arizona’s immigration enforcement law, SB 1070. That provision (Section 2(B)) requires local law enforcement officers to make a reasonable attempt to determine the immigration status of an individual during a lawful stop if the officer has reasonable suspicion to believe the person is an illegal alien.  (Arizona v. United States, 567 U.S. ___ (2012).)

250px-SCOTUSbuilding_1st_Street_SEIn upholding Section 2(B), the Supreme Court made it clear that federal immigration law allows states to require its law enforcement officers to conduct immigration status checks.  In writing for the majority, Justice Kennedy wrote:  “Congress has done nothing to suggest it is inappropriate [for state officials] to communicate with ICE…”  (Opinion at 21) “Indeed,” Kennedy stated, “[Congress] has encouraged the sharing of information about possible immigration violations.”  (Id.)

The Court also set aside the complaints of amnesty advocates — at least for the moment.  While acknowledging that the law could be implemented improperly [as any federal or state law could], the law had sufficient limitations that could also make its enforcement perfectly legitimate.  For example, Justice Kennedy noted that SB 1070: creates a presumption of lawful presence if an individual presents certain valid forms of identification; prohibits officers from considering race, color, or national origin, in determining reasonable suspicion whether the individual is an illegal alien; and requires the state to implement SB 1070 in a manner consistent with federal laws.  (See Opinion at 20)  “At this stage,” Kennedy concluded, “without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume § 2(B) will be construed in a way that creates a conflict with federal law.” (Opinion at 24)

Unfortunately, the Supreme Court struck down three other provisions of SB 1070, holding that those provisions were preempted by federal law.  The three provisions struck down were:

  • Section 3, which provides that it is a violation of state law for an illegal alien to be in violation of the federal alien registration statutes.
  • Section 5(C), which creates a misdemeanor offense which prohibits illegal aliens from applying for work, soliciting work in public places, or performing work in Arizona.
  • Section 6, which authorizes state and local police officers to conduct a warrantless arrest of an individual if the officer has probable cause to believe the person has committed a removable offense.

The Supreme Court struck down Section 3 based on the concept of field preemption.  In essence, the Supreme Court held that Congress had reserved to itself the field of alien registration in its entirety and thus states could not enact alien registration laws, even if they exactly mirror federal law.  (Opinion at 9-10)  Justice Kennedy wrote:  “Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.  Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.”  (Opinion at 10)  For this reason, Kennedy argued, it does not matter that Section 3 has the same aim as federal law and adopts the same substantive language. (Id.)

Alarmingly, with respect to Section 3 Justice Kennedy also appeared to adopt portions of the Department of Justice’s argument that the Executive Branch has unfettered discretion to not enforce U.S. immigration law.  Kennedy reasoned that if the Court let Section 3 stand, states would have the power to bring criminal charges against individuals “for violating federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.”  (Opinion at 11)  Not only does this statement ignore the fact that the aliens would, in fact, be violating STATE law (the whole point of SB 1070), but Kennedy’s statement suggests that enforcing immigration laws Congress has enacted without the executive branch’s permission or input could be constitutionally questionable.  This ignores that decades of Supreme Court rulings on preemption law have clearly stated that an inquiry on preemption starts and ends with Congressional intent.

The Supreme Court struck down Section 5(C) based on the concept of conflict preemption.  This occurs when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  (Opinion at 14-15)  Although Justice Kennedy acknowledged that Section 5(C) has the same goal as federal law — preventing unlawful employment — it involves a conflict in the method of enforcement.  Congress made a conscious decision, said Kennedy, to only penalize employers for hiring illegal aliens and decided not to punish illegal workers for engaging in unlawful employment.   And because Kennedy argues Congress intended this provision in the 1986 law to be a “comprehensive framework” for illegal employment, Section 5(C) of SB 1070 cannot stand.

While the Court bases its entire analysis of the constitutionality of Section 5(C) on Congressional intent, the evidence of such intent is weak.  The best examples Justice Kennedy cites (assuming he logically chose to include the best examples in his opinion) are statements from two members of Congress, one in 1971 and another in 1973, plus a 1981 report issued by the Select Commission on Immigration and Refugee Policy.  (Opinion at 13-14)  Moreover, as Justice Scalia succinctly points out in his dissent, even if one were to assume that Congress intended to only penalize employers and not illegal aliens for engaging in unauthorized employment, there is no evidence to suggest that Congress intended to preclude states from penalizing illegal workers.  (Scalia Dissent at 17)

As with Section 5(C), the Supreme Court struck down Section 6 of SB 1070 based on the concept of conflict preemption, holding that it creates an obstacle to the full purposes and objectives of Congress.  (Opinion at 19)  However, in his analysis, Justice Kennedy completely sidesteps Congressional intent and instead focuses on the powers of the Executive Branch.  While describing in detail the statutory authority federal officers have to issue warrants and arrest immigration law violators, he makes absolutely no attempt to analyze Congressional intent about state arrest authority.  Instead, he simply argues that “authorizing state officers to decide whether an alien should be detained for being removable … violates the principle that the removal process is entrusted to the discretion of the federal government.”  (Opinion at 18)  To allow Arizona to exercise such authority “without any input from the Federal Government,” he says, would allow state “to achieve its own immigration policy.”  (Opinion at 17)

Kennedy’s argument is deeply troubling on several levels.  First, to suggest that by detaining removable aliens the state is taking control of the removal process is wholly illogical as state and local officials have no authority to deport illegal aliens.  State officials who detain illegal aliens would merely have to hand them over to the federal government for it to decide whether to deport or release.  But even more disturbing, the Court has through its analysis essentially adopted the DOJ’s argument that the Executive Branch has unfettered discretion to decide whether to enforce any immigration laws and that the states have only a few limited instances to intervene, such as Section 2(B).  Clearly, the Court’s reasoning in striking down Section 6 makes it clear that this Supreme Court will demand Congress enact unequivocal, express language regarding state immigration authority before it will rule otherwise.

The Obama Administration denounced the Supreme Court’s decision to uphold Section 2(B). President Obama vowed to continue circumventing Congress upon hearing of the decision: “I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally…we will continue to enforce our immigration laws by focusing on our most important priorities like border security and criminals who endanger our communities, and not, for example, students who earn their education — which is why the Department of Homeland Security announced earlier this month that it will lift the shadow of deportation from young people who were brought to the United States as children through no fault of their own.” (See White House Press Release, June 25, 2012)

DHS Secretary Napolitano toed the Administration’s line in a separate statement: “[I]t is important to note that today’s Supreme Court decision will not impact the memorandum I issued on June 15th related to prosecutorial discretion eligibility for productive members of society who were brought to the United States as children.” (See Secretary Napolitano Press Release, June 25, 2012)

While House and Senate Republican leaders have largely remained silent, other members of Congress have expressed disappointment in the Supreme Court’s decision:

Rep. Lamar Smith, Chairman of the House Judiciary Committee: Unfortunately, under this Administration, today’s ruling essentially puts an end to immigration enforcement since the states no longer can step in and fill the void created by the Obama administration. This is especially bad news for border states since they have to deal with border violence, drug trafficking and illegal immigration. (Judiciary Committee Press Release, June 25, 2012)

Rep. Steve King, Vice-Chair of the House Subcommittee on Immigration and Policy Enforcement: “Today the Supreme Court preserved the most important component of the Arizona law…This is a significant win when it comes to efforts to increase enforcement of our nation’s immigration laws. However, I have serious concerns about the other side of today’s ruling, which struck down three other provisions of SB 1070.” (Steve King Press Release, June 25, 2012)

Sen. David Vitter, Chairman of the U.S. Senate Border Security and Enforcement First Immigration Caucus: “All the Arizona law tried to do was fill the void that the federal government has created by neglecting its duty and letting illegal immigration get completely out of control,” Vitter said. “The federal government should be working with Arizona to solve the problem, not taking it to court.  But for those of us who believe our focus should be actively enforcing the federal laws already on the books, the court’s decision to uphold Arizona’s ability to check immigration status is a step forward.” (David Vitter Press Release, June 25, 2012)


FAIR will continue to update this story as it unfolds.  In the meantime, to learn more about the legal concept of preemption and the arguments made by Arizona and the U.S. Department of Justice (DOJ), see FAIR’s primer on the oral arguments for Arizona v. United States.