Supreme Court: Federal Law Preempts Key Provisions of Arizona Immigration Statute | Practical Law

Supreme Court: Federal Law Preempts Key Provisions of Arizona Immigration Statute | Practical Law

On June 25, 2012, the US Supreme Court issued an opinion in Arizona v. United States, invalidating three key provisions of Arizona's immigration law, S.B. 1070. The court also reversed an injunction against a fourth provision.

Supreme Court: Federal Law Preempts Key Provisions of Arizona Immigration Statute

Practical Law Legal Update 0-520-0466 (Approx. 5 pages)

Supreme Court: Federal Law Preempts Key Provisions of Arizona Immigration Statute

by PLC Labor & Employment
Published on 26 Jun 2012USA (National/Federal)
On June 25, 2012, the US Supreme Court issued an opinion in Arizona v. United States, invalidating three key provisions of Arizona's immigration law, S.B. 1070. The court also reversed an injunction against a fourth provision.

Key Litigated Issues

On June 25, 2012, the Supreme Court issued an opinion in Arizona v. United States, affirming in part and reversing in part the judgment of the US Court of Appeals for the Ninth Circuit. The key issue in the case was whether federal law preempted four contested provisions of an Arizona statute, S.B. 1070, which created new penalties for violations of state and federal immigration laws and authorized Arizona law enforcement to conduct warrantless arrests for suspected immigration violations, among other things.

Background

In 2010, Arizona adopted S.B. 1070, a statute intended to discourage illegal immigrants from entering and remaining in Arizona. The US challenged the law, arguing that several of its provisions were preempted by federal law. The US District Court for the District of Arizona issued a preliminary injunction preventing four provisions of the law from taking effect, including:
  • Section 3, which establishes misdemeanor penalties for failing to comply with federal alien registration requirements.
  • Section 5(C), which establishes misdemeanor penalties for illegal immigrants who work or seek work in Arizona.
  • Section 6, which authorizes state and local officers to make warrantless arrests of persons an officer has probable cause to believe have committed public offenses that would make them removable from the US.
  • Section 2(B), which requires that, in some circumstances, officers conducting stops, detentions or arrests verify the person's immigration status with the federal government.
On appeal, a three-judge panel of the Ninth Circuit affirmed, finding that the US had established a likelihood of success on its claim that the Supremacy Clause in Article IV of the Constitution preempted these provisions. One judge authored a partial dissent, finding that Sections 6 and 2(B) were consistent with Congressional intent regarding the role of state and local law agencies in enforcing federal immigration law.

Outcome

In a 5-3 decision, with Justice Kagan not participating, the Supreme Court held that Sections 3, 5(C) and 6 of S.B. 1070 are preempted by federal law, but it reversed the judgment of the Ninth Circuit on Section 2(B), concluding that the grant of an injunction was improper before state courts had an opportunity to construe the law.
The court began by noting that, under the Supremacy Clause, Congress has the power to preempt state law. According to the court, state law must give way to federal law where:
  • Congress withdraws specified powers from the states by statute.
  • Congress has adopted a framework of regulation so pervasive that it has left no room for the states to supplement it, or where the federal interest is so dominant that enforcement of state laws on the same subject is precluded.
  • State laws conflict with federal law.

Penalties for Alien Registration Violations

In holding that the Section 3 is preempted by federal law, the court stated that the penalties established by S.B. 1070 for failing to comply with federal alien registration requirements:
  • Conflicted with the careful and comprehensive framework for alien registration adopted by Congress.
  • Clashed with specific penalties for the same offense under federal law, which, unlike the state law, allowed for probation as a punishment.
The fact that the provision had the same aim as federal law and adopted its substantive standards was not sufficient to save it, the court noted, since a state is completely barred from entering a field that the federal government has reserved for itself.

Penalties for Working or Seeking Work

Regarding Section 5(C)'s misdemeanor penalties for illegal immigrants who work or seek work in Arizona, the court held that the comprehensive regulatory framework established by the Immigration Reform and Control Act of 1986 (IRCA) foreclosed state laws penalizing aliens who seek or engage in unauthorized work.
Most persuasive to the court was the fact that the drafters of the IRCA considered and rejected the imposition of criminal penalties on aliens who seek or engage in unauthorized employment, indicating that Congress considered these penalties to be inconsistent with federal policy. The court noted that the IRCA only expressly preempted state penalties against employers who employ illegal aliens, rather than against the aliens themselves, but emphasized that the presence of one express preemption provision does not bar the ordinary working of conflict preemption principles in other areas.
Although the court acknowledged that Section 5(C) attempted to advance the same overall policy objectives as the IRCA, it stated that a conflict in the means by which an objective is achieved can be as disruptive to Congressional intent as a conflict in overt policy.
The court noted its May 2011 decision in Chamber of Commerce v. Whiting, which recognized that IRCA's express preemption provision permitted states to penalize employers for the employment of unauthorized workers in certain circumstances. The court also distinguished its earlier holding in De Canas v. Bica by noting that the state penalties on the employment of illegal aliens upheld in that case preceded the passage of the IRCA.

Warrantless Arrests for Removable Offenses

The court also held that federal law preempts Section 6, which provides an authorization for state and local officers to make warrantless arrests of persons an officer has probable cause to believe have committed public offenses that would make them removable from the US.
Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. The court noted that Section 6, by contrast, attempts to provide state officers with even greater authority to arrest aliens on the basis of removability than is given to federal immigration officers. By authorizing state officers to make these arrests, the provision violates the principle that the removal process is entrusted to federal discretion.
The court rejected Arizona's argument that Section 6 complied with a federal statute allowing state officers to cooperate with the US Attorney General in the removal process, stating that the unilateral decision of state officers to arrest aliens, in the absence of any request from the federal government, does not constitute cooperation.

Verification of Immigration Status During Arrest

The court reversed the injunction against Section 2(B), which requires state officers to make a reasonable attempt to determine the immigration status of any person they stop, detain or arrest if reasonable suspicion exists that the person is an illegal alien. The court noted that Congress has encouraged the sharing of information about immigration violations and has enacted a statute barring restrictions on the exchange of information between states and the Immigration and Customs Enforcement on immigration status.
Although opponents of the provision argued that the verification requirements would result in the delay of the release of detainees, the court found that the Section 2(B) could be read to avoid this constitutionally problematic outcome. For instance, state courts could take the requirement that the officer make a "reasonable" attempt to verify status to mean that it would be unreasonable to prolong a stop solely to conduct the immigration inquiry.
In the absence of a definitive interpretation from state courts, the court found, it would be inappropriate to assume that Section 2(B) would conflict with federal law. However, the court left open the possibility of future preemption and constitutional challenges once the law is interpreted and has gone into effect.

Dissents

Justices Scalia, Thomas and Alito each submitted opinions concurring in part and dissenting in part. Scalia and Thomas would have upheld all four provisions, with Scalia emphasizing states' sovereign rights to exclude persons from its territory, and Thomas finding that, under a preemption test that looks to whether there is conflict in the ordinary meaning of the relevant laws, none of the four provisions clashed with federal law.
Alito agreed with the majority as to Sections 3 and 2(B), but argued that, under De Canas v. Bica, Section 5(C)'s penalties for illegal aliens who work or seek work are a permissible exercise of a state's power to regulate employment. Section 6, Alito noted, is also permissible, as it adds little to the arrest authority that Arizona officers already possess, while any additional authority it does confer is consistent with federal laws requiring that the federal government take into custody criminal aliens.

Practical Implications

The court's decision strikes down many of the most contentious provisions of S.B. 1070, providing some resolution to the dispute about the extent to which states may attempt to regulate immigration without conflicting with federal laws. The decision may have wide-reaching consequences for other states that have adopted or are considering similar laws, including Alabama, Georgia and South Carolina.
For employers, the decision clarifies that states are preempted from imposing criminal penalties on aliens who seek or engage in unlawful work. Employers may continue to be penalized for their employment of unauthorized workers by the federal government under IRCA, and by those states that have a constitutionally permissible scheme under Whiting.