Supreme Court Upholds Key Part of Arizona’s S.B. 1070

By Chad Burchard | July 6, 2012

On Monday, June 25, the U.S. Supreme Court finally issued its ruling on the constitutionality of Arizona’s controversial immigration law, S.B. 1070.  The decision marks the end of a lawsuit that began almost exactly two years ago when the Department of Justice filed in federal court to block enforcement of the law.

A district court judge enjoined four of the law’s provisions, and that decision was upheld 2-1 in April, 2011 by a panel of the Ninth Circuit Court of Appeals.

While a majority on the Court agreed that three of the four enjoined provisions were unconstitutional, none of the Justices were willing to strike down the law’s most controversial provision, Section 2(B), which mandates that police make a reasonable effort to verify a person’s immigration status (pursuant to a lawful stop, detention, or arrest), if there is reasonable suspicion to believe that they are an illegal immigrant.

Thus, both sides have claimed the Court’s decision as at least a partial victory.  Thomas Saenz, President of the Mexican American Legal Defense and Education Fund (MALDEF), said that the Supreme Court’s decision was “a resounding defeat for Arizona and for all those who have been promoting these kinds of laws around the country.” He believes the rest of the law will one day be thrown out as well.  [Reid J. Epstein, Arizona immigration decision: Activists split on decision,, June 25, 2012.]

At the same time, former Arizona State Senator Russell Pearce, often described as the “architect” of S.B. 1070, hailed the Court’s decision as a “huge win” and referred to the invalidated provisions as mere “icing on the cake,” which “were nice to have” but “not critical.”  [Alex Seitz-Wald, Russell Pearce: SB 1070 decision a “huge win,”, June 25, 2012.]

The Court’s majority opinion was written by Justice Kennedy and joined by Chief Justice Roberts along with Justices Ginsburg, Breyer, and Sotomayor.  Justice Kagan took no part in the decision.

The basic issue before the Court was whether or not S.B. 1070’s four contested provisions were preempted by federal immigration law.  Under the Supremacy Clause of the U.S. Constitution, federal law supersedes any conflicting state law.  As the Court explained, preemption can be either express (e.g., when Congress passes a law explicitly stating that it preempts state law) or implied.  Implied preemption has two forms: (1) field preemption (which occurs when federal regulation of an area is so extensive that a court infers preemption) and (2) conflict preemption (which occurs when compliance with both state and federal law is impossible or when a state law stands as an obstacle to the accomplishment of a federal purpose or objective).

While emphasizing the federal government’s extensive power over immigration, the Court nevertheless conceded that “[t]he pervasiveness of federal regulation does not diminish the importance of immigration policy to the States,” noting the impact that large-scale illegal immigration has had on states such as Arizona.

The Court first addressed Section 3 of the law, which makes a non-citizen’s “willful failure” to carry their registration documents (as they are required to do under federal law) a state crime.  Noting the comprehensive nature of the federal alien registration system, it concluded that Section 3 was subject to field preemption: “The framework enacted by Congress leads to the conclusion … that the Federal Government has occupied the field of alien registration” and “[w]here Congress occupies an entire field … even complimentary state regulation is impermissible.”

The Court then turned to Section 5(C), which makes it a state crime for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.”  Unlike Section 3, which merely added a state law penalty to an existing federal crime, Section 5(C) has no federal law equivalent.  The Court looked to the Immigration Reform and Control Act of 1986 (IRCA) — which was passed to combat the hiring of illegal immigrants—to determine whether or not Section 5(C) was preempted.  “The correct instruction to draw from the text, structure, and history of IRCA,” it concluded, “is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment.  It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose.”

Next the Court took on Section 6, which authorizes state police to make warrantless arrests of those they have probable cause to believe committed a removable offense.   It noted that the powers granted to state police under this provision exceeded the arrest-making powers of federal immigration officers.  The Court concluded that “Congress has put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances” and that as such, Section 6 stood as “an obstacle to the full purposes and objectives of Congress.”

Finally, the Court focused its attention on Section 2(B)’s verification requirement.  The case against the provision had centered on two basic concerns: (1) mandatory status checks would overwhelm the federal government with requests (thus forcing it to redirect its resources away from its enforcement priorities), and (2) the potential for the status checks to result in “prolonged detention.”

In addressing the first concern, the Court noted that federal law already obligates Immigration and Customs Enforcement (ICE) to respond to state inquiries about a person’s immigration status.  “Congress has done nothing to suggest it is inappropriate to communicate with ICE in these situations” the Court declared. “The federal scheme” it concluded, “leaves room for a priority requiring state officials to contact ICE as a routine matter.”

As to the other issue, the Court agreed that “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns.”  However, it believed that the provision could be interpreted in such a way as to avoid these problems:

[I]f §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives.

Noting that the federal government had sued Arizona before S.B. 1070 had gone into effect, the Court concluded that “it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.”  It added though that its decision did not foreclose other challenges against the law.

Justice Scalia, along with Justice Thomas, dissented from the Court’s opinion as to the constitutionality of Sections 3, 5(C), and 6.  Justice Alito concurred with the Court’s judgment as to Section 3, but dissented as to Sections 5(C) and 6.

Scalia opened his opinion with an extensive discussion on the powers retained by the states in the area of immigration.  “As a sovereign,” he wrote, “Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.”

Regarding Section 6, Scalia dismissed the notion that “statutory limitations upon the actions of federal officers in enforcing” U.S. immigration law “on their face” limit a state’s power to protect its borders.  “The State has the sovereign power to protect its borders more rigorously if it wishes,” he asserted, “absent any valid federal prohibition.”

As to Section 3, he argued that the provision was not preempted because it did not establish “additional or auxiliary registration requirements” but only made “a violation of state law” what were already “violations of federal law.”  Concerning Section 5(C), Scalia argued that while Congress may have chosen not to impose penalties on illegal immigrants for seeking work when it passed IRCA, there was no reason to believe that it also intended to prohibit the states from doing so.

At the conclusion of his opinion, Scalia referenced President Obama’s recent decision to stop deporting certain young illegal immigrants and declared that “there has come to pass … the specter that Arizona and the States that support it predicted: 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.”

Justice Thomas’s brief four page dissent also concluded that none of S.B. 1070’s challenged provisions were preempted, but did so on the grounds that there was “no conflict between the ‘ordinary meanin[g]’ of the relevant federal laws and that of the four provisions of Arizona law at issue.”

Justice Alito concurred with the Court’s judgment as to Sections 2(B) and 3, the latter because he believed that precedent foreclosed any other holding.  He found Sections 5(C) and 6 constitutional for many of the same reasons as Justice Scalia.

The Supreme Court has finally rendered an opinion on S.B. 1070, and while commentators may be divided over whether it should be seen as a victory or a defeat for the law’s proponents, virtually no one believes that the legal battle over this and similar legislation passed in other states is at an end.  With its most controversial provision set to go into effect, one can expect new challenges against the law to follow soon.