On June 25, the U.S. Supreme Court struck down three of four provisions of Arizona’s SB 1070 that the U.S. government challenged on grounds that federal law preempts state law.
The sections of the law that were struck are:
Section 3 of SB 1070, which created a misdemeanor criminal offense for “willful failure to complete or carry an alien registration document.” The Court ruled that, with respect to alien registration, Congress intended to preclude states from enacting or enforcing their own complementary or auxiliary regulations. (6-2, with Justices Scalia and Thomas dissenting. Justice Kagan had recused herself from this case.)
Section 5(C) of SB 1070, which created a state misdemeanor criminal offense for an “unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” The Court ruled that the 1986 Immigration Reform and Control Act (IRCA) provided a comprehensive framework for regulating employment by immigrants not authorized to work. IRCA did not impose criminal penalties on unauthorized immigrants seeking work or engaging in work, and the imposition of such penalties by Arizona is thus preempted by federal law. (5-3, with Justices Scalia, Thomas and Alito dissenting.)
Section 6 of Arizona SB 1070, which gave state officers authority to arrest, without a warrant, any person the officer had “probable cause” to believe that the person “had committed any public offense that makes [that person] removable” from the U.S. The Court ruled that this section would give state officers greater authority to arrest noncitizens than authority given by Congress to trained federal immigration officers. “Congress has put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances,” the Court ruled, and therefore this provision is preempted. (5-3, with Justices Scalia, Thomas and Alito dissenting.)
Allowed to Stand, For Now
The provision that the Court did not strike down was section 2(B) of SB 1070, known as the “Papers Please” or “Show Me Your Papers” provision. This provision requires Arizona law enforcement officers to make a “reasonable attempt” to determine the immigration status of persons they stop, detain, or arrest if they have a “reasonable suspicion” that the person is unlawfully present. It also requires authorities to determine the immigration status of anyone who is arrested before the person is released. The chief concern about this provision is that it will lead to racial profiling; that Latinos will be stopped, detained, or arrested on some pretext, so that an officer can check on the immigration status of the individual.
During the oral argument of this case, the Government conceded that racial profiling wasn’t part of this particular challenge to the law; the Government’s challenge focused on federal preemption. In their decision, the Justices write that “Congress has made clear that no formal agreement or special training needs to be in place for state officers to ‘communicate with the [Federal Government] regarding the immigration status of any individual’.” All Section 2(B) requires, the Justices write, is that officers “conduct a status check during the course of an authorized, lawful detention. Since there is “uncertainty about what the law means or how it will be enforced” once it goes into effect, it is too early to say whether this section “will be construed in a way that creates conflict with federal law.”
Invitation to Return to Court
All eight Justices agreed that Section 2(B) is not preempted at this time. However, the Justices acknowledged legitimate concerns that may bring Section 2(B) back before the Court. “Detaining individuals solely to verify their immigration status would raise constitutional concerns,” the Justices wrote, and “[t]he nature and timing of this case counsel caution in evaluating the validity of [Section]2B.” The Justices concluded the section on this provision of the law, by writing: “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” (emphasis added).
Other Challenges Pending on Papers Please Provision
The case was remanded to the 9th Circuit “for further proceedings consistent with this opinion.” According to legal experts following this case closely, it will take some days or even weeks before the injunction that is now in effect against Section 2(B) is lifted. There are other lawsuits pending against SB 1070, including lawsuits that address the racial profiling issue. In a lawsuit filed by advocates (Friendly House v. Whiting), the District Court did not grant a request for an injunction on Section 2(B) because it had already done so in the Federal Government’s case against Arizona. However, in denying the preliminary injunction, the District Court Judge wrote that, “Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested will, on its face, impermissibly expand the scope of detention for many arrestees because their liberty will be restricted while their status is checked,” and that it appeared that plaintiffs “could demonstrate a likelihood of success on the merits of this claim.”
So, it is unclear at this point whether Section 2(B) will be allowed to go into effect in the near term. Even if it were to go into effect, it is not clear what the state may accomplish.
