Finding Arizona’s immigration law, S.B. 1070, which expanded state law enforcement’s role in combating illegal immigration, intrudes upon the federal government’s broad enforcement powers, the U.S. Supreme Court has largely upheld a lower court’s injunction against it. Arizona et al. v. U.S., No. 11-182 (June 25, 2012). The Court, however, reversed the injunction against a provision requiring law enforcement officials to attempt to determine the immigration status of any person they reasonably suspect to be an alien unlawfully present in the United States.


The stated purpose of S.B. 1070 was to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” The U.S. Attorney General challenged the constitutionality of S.B. 1070, arguing the power to regulate immigration is vested exclusively in the federal government. The Attorney General also moved to bar S.B. 1070 from taking effect until there is final determination as to its constitutionality.

In July 2010, a district court judge issued an injunction, preventing four provisions from becoming law. The injunction was later affirmed by the U.S. Court of Appeals for the Ninth Circuit.

The Decision

The U.S. Supreme Court upheld the injunction with respect to three of the four provisions. It stressed that the federal government has broad powers in the area of immigration, and that there are significant policy reasons for having a unified, comprehensive system for the enforcement of immigration laws. At the same time, the Court acknowledged, Arizona bears many of the consequences of illegal immigration, including “crime, safety risks, serious property damage, and environmental problems.” With these concerns in mind, the Court reviewed each of the four provisions at issue, finding three preempted by federal law.

Section 3. Under federal law, aliens must carry documentation regarding their immigration status. Section 3 creates a new Arizona misdemeanor for failure to possess the required documentation. In effect, Section 3 establishes a state law penalty for conduct that is prohibited by federal law. The Court concluded Arizona was not permitted to adopt its own requirements in this area.

Section 5(C). This section makes it a misdemeanor for an illegal alien to seek or obtain employment in Arizona. The Court noted Congress previously enacted the Immigration Reform and Control Act (“IRCA”), which makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers. In so doing, the Court found, Congress rejected criminal penalties for illegal aliens as “inconsistent with federal policy and objectives.” Thus, Section 5(C) conflicts with the non-criminal regulatory system chosen by Congress and is preempted by federal law.

Section 6. This section allows Arizona law enforcement officers to make warrantless arrests of individuals suspected of being subject to removal from the United States. Under federal law, an officer may arrest an alien for being “in the United States in violation of any [immigration] law or regulation,” but only where the alien “is likely to escape before a warrant can be obtained.” The Court noted Section 6 gives more arrest authority to Arizona law enforcement officers than Congress gave to trained federal immigration officials. Therefore, it again found S.B. 1070 inconsistent with the comprehensive immigration scheme adopted by Congress.

Section 2(B) is perhaps the most controversial provision of S.B. 1070. It requires law enforcement officers to make reasonable attempts to determine the immigration status of individuals who are suspected of being in the country illegally. Critics say this requirement will encourage racial profiling.

The U.S. Attorney General argued that Section 2(B) is unconstitutional because it may require an officer to delay the release of suspects in order to verify their immigration status. The Supreme Court acknowledged this as a potential problem, but noted:

The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.

Thus, the Court vacated the injunction against Section 2(B). However, it left open the possibility of future challenges based on the manner in which the provision is interpreted and enforced.

Overall, the Supreme Court’s opinion reaffirms the federal government’s dominance in the area of immigration and likely will impede all but very limited state efforts to enact their own immigration reform. An in-depth analysis of this decision is available on our website (http://www.jacksonlewis. com/resources.php?NewsID=4133).