Limits Defined for State Immigration Laws

June 28, 2012

On June 25, in Arizona v. United States, the Supreme Court struck down most aspects of Arizona’s immigration law but upheld the state law requiring police to make a reasonable attempt to determine the immigration status of a person they stop, detain, or arrest on some other legitimate basis.

The Arizona law, which created a new state misdemeanor for “willful failure to complete or carry an alien registration document” in violation of federal law, was deemed to conflict with “the careful framework Congress adopted.”

The Arizona law making it a state 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 has no federal counterpart.  The Immigration Reform and Control Act of 1986 (IRCA) does not impose federal criminal sanctions on the employee side (i.e., penalties on aliens who seek or engage in unauthorized work).  Under federal law some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employment are not eligible to have their status adjusted to that of a lawful permanent resident.

The Court held that “the legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. 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” and “is preempted by federal law.”

The Arizona law providing that a state officer, “without a warrant, may arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States” was deemed an attempt “to provide state officers even greater authority to arrest aliens on the basis of possible removal than Congress has given to trained federal immigration officers.”  “The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.”

“This is not the system Congress created.” Thus, the Court held the provision preempted by federal law.

The Arizona law requiring state officers to make a reasonable attempt to determine the immigration status of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States” was upheld for now. The law also provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” Three limits are built into the state law. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers generally “may not consider race, color or national origin.” Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”

The Court held that at “this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume [this law] will be construed in a way that creates a conflict with federal law.” The opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.

Five justices joined the majority opinion.  Three justices filed opinions concurring in part and dissenting in part.  Justice Kagan did not participate.

To read the opinion (and dissents), click here.