Supreme Court Says Federal Law Preempts Provisions of Arizona Immigration Statute

With an emphasis on practical strategies to improve productivity and performance, and limit potential liabilities, Bulletin to Management™ concisely analyzes new developments in employment and human resources management.

The U.S. Supreme Court June 25 ruled that federal law preempts and invalidates three of four challenged sections of Arizona's immigration law S.B. 1070, including a provision that would make it a misdemeanor for an unauthorized alien to seek or engage in work in the state (Arizona v. United States, U.S., No. 11-182, 6/25/12).

In a 5-3 decision, the court found that Congress did not intend for the Immigration Reform and Control Act, a “comprehensive” federal framework for regulating the employment of unauthorized aliens, to impose criminal penalties on employees. It said S.B. 1070, which includes such penalties, “would interfere with the careful balance struck by Congress.”

The court also said sections of S.B. 1070 are preempted that would make failure to comply with federal alien-registration requirements a misdemeanor and would authorize state and local officers to conduct a warrantless arrest if they have probable cause to believe a person has committed a public offense rendering the person removable from the United States. The Supreme Court affirmed the U.S. Court of Appeals for the Ninth Circuit's injunction against enforcement of these provisions.

But the Supreme Court reversed the injunction against an S.B. 1070 provision allowing state law enforcement officers to determine the immigration status of a person they have lawfully stopped, detained, or arrested. It would be improper to assume that this provision would be construed in a manner leading to conflict with federal law without a definitive interpretation from state courts, Justice Anthony Kennedy wrote for the Supreme Court.

Justices John Roberts, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined the opinion. Justice Elena Kagan did not participate in the court's consideration of the case.

Justices Antonin Scalia and Clarence Thomas separately concurred in part and dissented in part, each stating that federal law does not preempt any of S.B. 1070's challenged provisions.

Scalia said the court majority's holding “deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign's territory people who have no right to be there.” No federal law prohibits state exercise of this power, Scalia said, and S.B. 1070 does not aim to exclude people whom federal law would admit. Thomas said he could locate no conflict between S.B. 1070's ordinary meaning and that of relevant federal immigration laws.

Justice Samuel Alito, also concurring in part and dissenting in part, agreed with the majority as to S.B. 1070's “reasonable suspicion” and alien registration provisions. But he said the upheld injunction against the statute's employment provision ran afoul of prior Supreme Court case law holding that states have traditionally regulated employment, even of unauthorized aliens. Alito also said the statute's warrantless arrest provision “adds virtually nothing,” and nothing inconsistent with federal law, to the authority that state law enforcement officers already exercise.