by Professor Byron L. Warnken on June 27, 2012

Supreme Court makes a dent in Arizona’s immigration related laws.

The recent Supreme Court decision, Arizona v. United States, considered the doctrine of preemption to determine whether federal law permitted Arizona to implement state-law provisions of the Support Our Law Enforcement and Safe Neighborhoods Act (S. B. 1070). Arizona enacted S.B. 1070 in 2010 creating misdemeanors punishable by the state for multiple immigration violations. In June 2012, the Court ultimately struck down three out of the four provisions considered as preempted by federal law.

The concept of preemption in Constitutional Law considers whether or not the Federal Government has created legislation so as to completely occupy an area of the law. If the Federal Government has enacted such legislation, then each individual state government is barred from creating laws in that area. Such an example would be diplomacy. States cannot develop their own foreign relations with other nations; that power is within the sole control of the federal government.

The Court considered sections 3, 5(C), 6, and 2(B) of the Act. Section 3 creates a state misdemeanor for those who willfully fail to carry or complete alien registration documentation.  The majority struck down section 3 because it intrudes on the field of alien registration, an area in which Congress has left no room for state regulation. The Federal Government enacted a law that requires aliens carry proof of registration and therefore has occupied the field of alien registration and any state regulation, even if complementary, is impermissible.

Section 5(C) of S. B. 1070 provides that any unauthorized alien who seeks or accepts work as an employee or independent contractor without authorization is guilty of a state misdemeanor. Violations under section 5(C) are punishable by up to six months incarceration and a $2,500 fine. Because section 5(C) imposes criminal penalties that were debated during the drafting of the Immigration Reform and Control Act of 1986 (IRCA) and deliberately left out, the majority held that it interferes with the balance struck by Congress when enacting the IRCA, and thus 5(C) is also preempted.

Section 6 provides that a state officer, without a warrant, may arrest a person if the officer has probable cause to believe the person is a deportable immigrant. Section 6 provides State officers greater authority to arrest aliens than what Congress has given to trained federal immigration officers. By authorizing State officers to engage in alien enforcement activities specifically entrusted in Federal officers, the majority held that section 6 creates an obstacle to the purposes and objectives of Congress and is therefore also preempted.

Section 2(B) of the Act is the only provision the majority held to not be preempted by federal law. Section 2(B) requires state officers to make a reasonable attempt to determine and investigate immigration status if they suspect a person is undocumented. The law also requires that a person who is arrested shall have their immigration status determined before being released. The key difference with section 2(B) is that it has not been interpreted by state courts. The Court concluded “at this stage, without benefit of a definitive interpretation from the state courts, it would be inappropriate to assume section 2(B) will be construed in a way that creates conflict with federal law.”

Some justices disagreed that sections 3, 5(C), and 6 were preempted by federal law, however all concluded that because there is no showing that section 2(B) conflicts with federal immigration law, it cannot be held as preempted. While discussions surrounding immigration will continue past this decision, it is important to remember that this case surrounded a narrow issue, whether or not the Arizona provisions were preempted by federal law. The Supreme Court considered these provisions under the doctrine of preemption, rather than the policy implications they would have on national immigration.

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