On June 25, 2012, the U.S. Supreme Court, with Justice Anthony Kennedy writing for the majority, ruled that several significant provisions of Arizona’s immigration law, often referred to as S.B. 1070, are preempted by federal law. The Court also ruled that it was improper to enjoin another provision of the law. Of particular significance to employers, the Court ruled that section 5(C) of the law, which imposes criminal penalties on unauthorized aliens who are seeking or engaging in work in the state, is an obstacle to the federal regulatory system, namely the Immigration Reform and Control Act of 1986 (IRCA). Arizona v. United States, No. 11–182, U.S. Supreme Court (June 25, 2012).
Factual Background
In 2010, the state of Arizona enacted legislation (S.B. 1070) called the Support Our Law Enforcement and Safe Neighborhoods Act. At issue are four provisions of the statute. Section 3 of the law makes failure to comply with federal alien registration requirements a state misdemeanor. Section 5 makes it a misdemeanor for an unauthorized alien to seek or engage in work in Arizona.
Section 6 authorizes officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.” Section 2(B) provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the federal government.
The United States filed suit against Arizona seeking to enjoin S.B. 1070. The U.S. District Court for the District of Arizona issued a preliminary injunction preventing these four provisions from taking effect and the Ninth Circuit Court of Appeals affirmed. However, one judge dissented from the decision to uphold the preliminary injunction against sections 2(B) and 6. The U.S. Supreme Court agreed to hear the case to resolve the question of whether federal law preempts and renders invalid the four sections at issue.
Legal Analysis
Justice Kennedy, joined in his majority opinion by four justices, first noted that the federal government has broad power over the subject of immigration and that federal governance of immigration and alien status is extensive. The Court also noted that the state of Arizona “bears many of the consequences of unlawful immigration” and that aliens in the state are reported to be responsible for a disproportionate share of serious crime.
The Court then considered each provision at issue. According to the Court, section 3, which forbids the “willful failure to complete or carry an alien registration document,” in effect, adds a state law penalty for conduct proscribed by federal law. The Court found that the federal government has occupied the field of alien registration. “Where Congress occupies an entire field, as it has in the field of alien registration,” the Court found, “even complementary state regulation is impermissible.” Thus, the Court held that section 3 is preempted by federal law.
Justice Kennedy further noted that section 5(C) (unlike section 3, which replicates federal statutory requirements) “enacts a state criminal prohibition where no federal counterpart exists.” Section 5(C) makes it a misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in Arizona. The Court noted that while IRCA makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers, it does not impose federal criminal sanctions on employees. Instead, federal law imposes civil penalties on alien workers and it makes it a crime for unauthorized workers to obtain employment through fraudulent means. Additionally, after examining the legislative background of IRCA, the Court found that “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.”
According to the Court, “[a]lthough §5(C) attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of enforcement.” Moreover, the Court found that since Congress decided not to impose criminal penalties on aliens who seek or engage in unauthorized employment, “a state law to the contrary is an obstacle to the regulatory system Congress chose.” Thus, the Court held that section 5(C) also is preempted by federal law.
In analyzing section 6, the Court first noted that under federal law, an alien who is suspected of being removable is issued a Notice to Appear form, which does not authorize an arrest. Further, the federal statutory structure instructs when it is appropriate to arrest an alien during the removal process. The Court concluded that section 6 “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.” While state officers may make warrantless arrests of aliens based on possible removability in specific, limited circumstances, the Court found, by “authorizing state and local officers to engage in these enforcement activities as a general matter, §6 creates an obstacle to the full purposes and objectives of Congress.” Thus, the Court ruled that section 6 also is preempted by federal law.
The Court, however, refused to find that section 2(B) is preempted by federal law noting that the “nature and timing” of the case cautions against evaluating its validity. The Court noted that since the federal government brought its suit before S.B. 1070 went into effect,”[t]here is a basic uncertainty about what the law means and how it will be enforced.” “At this stage, without the benefit of a definitive interpretation from the state courts,” the Court concluded, “it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.” However, the Court made a point to note that its “opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”
Practical Impact
According to Jay Ruby, a shareholder in Ogletree Deakins’ Atlanta office: “In short, all of Arizona’s bill was struck down except for section 2(B). Section 2(B) provides that police officers may request detainees to present documentation of legal status if there is probable cause to believe that the detainee is an illegal alien. However, the Court deferred to the Ninth Circuit and Arizona to see how the state implements the law and declined to rule on the constitutional aspects of section 2(B) (which is being challenged by the American Civil Liberties Union). Section 2(B) and its enforcement likely will undergo future legal challenges. It is possible that Arizona courts (or potentially the Ninth Circuit in a future challenge) will strike down section 2(B) if it does not receive a narrow ‘definitive interpretation’ that does not otherwise conflict with federal law.”
According to Tibor Nagy, Jr., a shareholder in Ogletree Deakins’ Phoenix and Tucson offices: “The Supreme Court’s decision effectively affirmed the status quo, inasmuch as the district court and Ninth Circuit prevented S.B. 1070’s controversial provisions from going into effect from the beginning. As for section 2(B), its continued viability is unlikely to affect employers, particularly since it must be construed very narrowly to pass the Court’s preemption test.”
