The U.S. Supreme Court has issued its much anticipated decision on Arizona’s controversial immigration statute, Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”). In so doing, the Court affirmed, in a 5-3 decision, the Ninth Circuit of Appeals, agreeing that the U.S. Department of Justice (“DOJ”) had established a likelihood of success that three of the four challenged provisions of S.B. 1070 are preempted by federal immigration law. Arizona v. United States, No. 11-182 (June 25, 2012).
Among the three provisions that the Court found to be preempted is Section 5(C) of the Act, which makes it a criminal 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 the state. According to the Court,
[federal] IRCA’s framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work — aliens who already face the possibility of employer exploitation because of their removable status — would be inconsistent with federal policy and objectives.
Therefore, the majority found Section 5(C) was preempted because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
With respect to Section 2(B) of the Act, which contains a requirement that law enforcement officers check a person's immigration status while enforcing other laws if "reasonable suspicion" exists that the person is in the U.S. illegally, the Court held that it “would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.” However, in reaching this conclusion, the majority of the Court stated that it was not foreclosing “other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”
This marks the second decision by the U.S. Supreme Court in as many years on immigration legislation passed by the Arizona legislature. In May 2011, the Court rejected preemption arguments made by groups challenging the Legal Arizona Workers Act (“LAWA”), which imposes sanctions on employers that knowingly or intentionally hire unauthorized workers and requires employers to participate in the federal E-Verify program.