The Key Provision of Arizona SB 1070 Upheld by SCOTUS

Monday, June 25th, 2012 and is filed under Blog, Immigration

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The media reports immediately following the Supreme Court’s decision in Arizona V United States were scandalous.  CNN breathlessly declared the decision a sweeping victory for the Obama administration in its unrelenting pursuit to deny states the right to uphold immigration laws.  But outside of the mythical media bubble, the reality painted a much brighter, albeit imperfect picture for proponents of the rule of law.

The headline of the decision should read like this: All Justices (excluding Kagen, who recused herself) voted to overturn the Ninth Circuit’s ruling against the provision of the bill that everyone cared about for the past two years – Section 2(B) of SB 1070, which requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person’s immigration status with the Federal Government.  Period.

Yes, the Supreme Court threw out three other provisions – a slightly more favorable opinion for Obama than previously predicted.  But the central issue of checking immigration status was upheld.  That is the provision that has been mimicked by many other states that will now be able to enforce the law as a result of today’s opinion.

Overall, 5 Justices wrote for the majority opinion that struck down sections 3,5 and 6 of the law; Kennedy, Breyer, Ginsburg, Roberts, and Sotomayer.  Here was the punchline:

The United States has established that §§3, 5(C), and 6of S. B. 1070 are preempted. It was improper, however, to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives.The judgment of the Court of Appeals for the Ninth Circuit is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.

Section 3 of the Arizona law requires illegal aliens to carry registration documentation.  Section 5 makes is a state misdemeanor for illegals to seek employment in Arizona.  Section 6 allows a police officer to arrest an illegal without a warrant if the officer has probable cause to believe the person has committed a crime that makes him subject to deportation.

Justices Thomas, Scalia, and Alito issues separate opinions concurring with the Court on some aspects and dissenting on others.  Scalia issued the sharpest dissent, writing that he would uphold the entire law.  He even read his dissent from the bench and issued a 7-page press release to the media.  Here was Scalia’s punchline:

Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.

And this cuts to the core of the central issue at hand.  In what manner was Arizona interfering with federal law in a way that it is preempted to do so?  Take a look at pages 14-15 from the majority’s position:

“The ordinary principles of preemption include the well settled proposition that a state law is preempted where it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U. S., at 67. Under §5(C) of S. B. 1070, Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens. Although §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. The Court has recognized that a “[c]onflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy.” Motor Coach Employees v. Lockridge, 403 U. S. 274, 287 (1971). The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose. See Puerto Rico Dept. of Con­sumer Affairs v. ISLA Petroleum Corp., 485 U. S. 495, 503 (1988) (“Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn—not from federal inaction alone, but from inaction joined with action”). Section 5(C) is preempted by federal law.” [emphasis added]

It’s clear that even the majority recognizes that states are not preempted from delving into immigration law in any capacity.  They are just preempted from enacting laws that “stand as an obstacle” to federal enforcement.  So how do these laws stand as an obstacle without contriving some far flung case in which the state laws would hamper federal enforcement?

The answer is very simple: the only way Arizona hampers the federal government is if you believe it is the policy of the federal government not to enforce the laws.  But the laws are duly passed by Congress, while the decision to suspend deportation is an illegal policy issued by the executive branch – in contravention to the very laws the Court claims Arizona is attempting to obstruct!

Scalia said it best in his dissent:

The Court concludes that §5(C) “would interfere with the careful balance struck by Congress,” ante, at 15, (another field pre-emption notion, by the way) but that is easy to say and impossible to demonstrate. The Court relies primarily on the fact that “[p]roposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting [the Immigration Reform and Control Act of 1986 (IRCA)],” “[b]ut Congress rejected them.” Ante, at 14. There is no more reason to believe that this rejection was expressive of a desire that there be no sanctions on employees, than expressive of a desire that such sanctions be left to the States. To tell the truth, it was most likely expressive of what inaction ordinarily expresses: nothing at all. It is a “naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional rejection of what the bill contained.” Crosby v. National Foreign Trade Council, 530 U. S. 363, 389 (2000) (SCALIA, J., concurring in judgment) (internal quotation marks and alterations omitted).


While the other three provisions are not insignificant, we must remember that on the central issue of contention – whether police can check immigration status upon lawful contact – the ruling was unanimous in our favor.  Regarding the other provisions, the Court accepted the Obama’s argument that states are preempted by federal immigration laws.  The problem with that decision is that they appear to be conflating Obama’s executive policies with laws passed by Congress.  It is laughable to suggest that Arizona’s laws obstruct federal law when they, in fact, strengthen and complement those laws.

The relevant takeaway is this: The Supreme Court will be widely quoted as saying that “The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.”  But rather than focus on the argument against state enforcement, why don’t we use that statement from the court to focus attention on the federal government’s lack of enforcement.  If the feds have all the power over immigration, why don’t they use it?