Today, the U.S. Supreme Court handed down a decision on the 2010 Arizona statute that created new criminal penalties and police procedures for addressing the problem of illegal immigration in that state. The Court ruled that several key features of the Arizona statute are preempted by federal law and withheld judgment regarding the preemption status of one additional portion. It is likely that many similar laws in other states will also fail to pass constitutional muster on analogous grounds.
What Was at Stake
In 2010, Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act, more commonly known as SB 1070. Scheduled to take effect on July 29, 2010, SB 1070 was challenged in federal court, and a preliminary injunction prevented the law from going into effect pending resolution of the legal challenge to its constitutionality. Although not completely resolved, the Supreme Court today answered most of the legal questions regarding this state statute.
Specifically, four sections of SB 1070 were challenged. Section 3 of the law makes it a misdemeanor to fail to comply with federal alien registration requirements. Section 5(C) makes it illegal for unauthorized aliens to accept or seek employment. Perhaps the most controversial section – Section 6 – requires law enforcement officers to arrest without a warrant any person reasonably believed to be removable from the U.S. by virtue of their immigration status. Section 2(B) requires law enforcement officers to verify the immigration status of any person arrested or detained.
What the Court Found. . .and Why
The Court noted that there are several bases for concluding that a state law is constitutionally preempted by federal law. First, Congress may have explicitly stated so, as is the case regarding the Immigration Reform and Control Act of 1986 (IRCA), which preempts all but state licensing programs with respect to employer illegal immigration sanctions. Second, in the absence of explicit federal statutory language, the Court can infer preemption in at least two other circumstances: state laws must yield where federal regulation is so pervasive that there is no room for state action; or where the federal interest is so dominant that parallel state action is presumed to be unnecessary. Third, state laws are preempted where they conflict with federal law directly or implicitly. Implicit conflicts arise when the state law is an obstacle to accomplishing the purpose and intent of Congress in the federal law.
The Court ruled that Sections 3, 5(C), and 6 of SB 1070 are preempted by federal law. Section 3 is preempted because the existing federal system for alien registration is complete and pervasive. Section 5(C) is an obstacle the federal regulatory scheme laid out in the IRCA and is preempted on that basis. Section 6 is also preempted as an obstacle to existing federal law setting forth the basis and grounds for arrest and detention of aliens.
The Court ruled that Section 2(B) was not ripe for constitutional challenge in the absence of evidence regarding how Arizona courts would interpret its language. The Court thus essentially deferred a decision on federal law preemption regarding this section until there is a definitive interpretation from Arizona state courts on the application of the “status check” requirement. The Court specifically reserved the right to revisit Section 2’s constitutionality after SB 1070 has taken effect and subject to appropriate jurisdiction.
Impact on Employers
The net effect of the Court’s ruling today is that the most feared provisions of the Arizona immigration statute have been invalidated. The widespread concerns about the law’s impact upon immigrant populations and the “climate of fear” that was to arise in Arizona once SB 1070 took effect should dissipate as the Court’s ruling takes effect. Police officers in Arizona will not be stopping and detaining anyone who appears to be unlawfully present in this country. And, it is not a state crime in Arizona to work without authorization (although under the IRCA it remains a federal crime for employers to knowingly employ those who lack the right to work).
The Arizona E-Verify requirement remains in force. Provisions in other state statutes, e.g., Alabama, Georgia, South Carolina, and others, that are analogous to Sections 3, 5(C), and 6 of SB 1070 may now be struck in the wake of the Court’s decision.
So stay tuned. . .
For more information about this or any other immigration law matters, please contact David Whitlock