Supreme Court Throws Out Majority of Arizona Immigration Law, Urges Caution In Future State Immigration Laws

The U.S. Supreme Court on Monday announced one of the most anticipated decisions this year - whether Arizona’s controversial S.B. 1070 unconstitutionally pre-empts federal immigration law. In a 5-3 decision, the Court threw out most of the provisions of the law in question.

Specifically, the federal government had challenged four provisions of Arizona’s immigration law. One provision would make the failure to comply with federal immigration requirements a state crime, another would make it a state crime for an undocumented worker to seek or engage in work in Arizona. The Court agreed with the federal government and threw out these provisions.

The Court’s logic here was simple: States would be effectively enforcing federal laws on their own and not necessarily with federal consent. For example, the federal government may have valid reasons for not arresting and prosecuting an illegal immigrant, perhaps because that person is a veteran, or a cooperating witness in another investigation. The same applies to the ban from seeking employment, which is, in fact, contradictory to existing federal law.

The third provision in question would allow state and local law enforcement to arrest, without a warrant, a person they have probable cause to believe has committed a “public offense” that makes the person “removable from the United States.” The Court threw this provision out on pre-emption grounds as well, and it didn’t mince words while doing so. Justice Kennedy wrote in the majority opinion that “as a general rule, it is not a crime for a removable alien to remain present in the United States,” adding, “[this section] 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.”

The final provision in question would require law enforcement to make an effort to determine a criminal suspect’s immigration status with the federal government at some point during a “stop, detention or arrest.” The Court upheld this provision. While noting that this provision of S.B. 1070 could certainly be applied in an unconstitutional manner, the majority also believed that some valid applications also exist, and until the law has been on the books for some time, it would be premature to throw the provision out. Justice Kennedy wrote, “Congress has done nothing to suggest it is inappropriate to communicate with [U.S. Immigration and Customs Enforcement] in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations.”

Each dissenting justice wrote their own opinion, and Justice Kagan did not participate in the case. Justices Scalia and Thomas both argued that the entire law should be upheld, and they shared a common logic in their dissents – that states have an inherent right to regulate immigration individually, as doing so is “the defining characteristic of sovereignty.” Justice Alito’s view was slightly more nuanced; he believed the law should be upheld except for the provision making a failure to comply with federal immigration law a state crime, in which he agreed with the majority.

At first glance, this decision may seem to show yet another instance of a divided Court that provides no clear guidance for state lawmakers and an almost certain path toward future litigation, but in actuality, the Court has clearly demonstrated what is in and out of bounds for states when it comes to immigration law.

By clarifying that state law enforcement may not arrest, without warrants, people they suspect of committing deportable offenses, the Court has set clear limits on the scope of state immigration enforcement efforts.  At the same time, by upholding the ability of states to crosscheck suspects in custody with federal immigration authorities, the Court has not ignored the burden illegal immigration imposes on law enforcement in some communities. Most importantly, the Court includes a disclaimer – its opinion is not intended to give law enforcement carte blanche to ignore the Bill of Rights just because they may have arrested an illegal immigrant. Future constitutional challenges to the application of this law are fair game.

State lawmakers should especially take note. Lisa Soronen, executive director of the State and Local Legal Center, stated, “Considering the Court struck down three of the four provisions of Arizona’s law, current and future state immigration laws should be viewed with a careful eye to federal immigration law.  And state’s that have adopted (or want to adopt) provisions requiring police to check immigration status based on reasonable suspicion during an arrest should not assume these provisions will necessarily be constitutional."

Broadly, the Court has said that states cannot write their own immigration enforcement laws. Regardless of how one may feel about the comprehensive immigration reform debate in Congress, it remains Congress’ prerogative to fix the problem.  As Justice Kennedy states in his conclusion, “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process [of national immigration reform] continues, but the State may not pursue policies that undermine federal law.”