Arizona v. United States

What’s at stake?
The federal government’s ability to maintain effective and uniform immigration policies.

Issue:
Whether provisions of Arizona’s immigration law are preempted by the federal Immigration and Naturalization Act.

Decision date:
June 25, 2012

Outcome:
5-3 striking down three provisions and upholding one provision. Justice Kennedy delivered the opinion of the Court, joined by Justices Ginsburg, Breyer, and Sotomayor. Justices Scalia, Thomas, and Alito each filed separate opinions concurring in part and dissenting in part. Justice Kagan recused.

What the court held:
In 2010, Arizona passed S.B. 1070, a law designed to make it all but impossible for illegal immigrants to live or work in the state. A number of states have since passed copycat laws, in response to what they view as the federal government’s inadequate efforts to control illegal immigration. Most notoriously, Alabama has passed a law with such far-reaching consequences that even the state attorney general has called for revisions.

In this suit, the United States sought to enjoin enforcement of Arizona’s law, arguing that it was preempted by the federal Immigration Reform and Control Act (“IRCA”). In particular, the U.S. challenged four provisions of the law as incompatible with federal immigration laws and policies. The challenged provisions (1) require that state police ascertain the immigration status of any individual they stop or arrest if they have reasonable suspicion to believe that the person is here illegally (additionally, the person, once arrested, cannot be released until the federal government verifies his or her legal status); (2) make it a violation of law for a person to fail to obtain and carry legal immigrant papers; (3) make it a misdemeanor for unlawful aliens to work or to try to work; and (4) authorize warrantless arrests for individuals who the state police have probable cause to believe has committed any act anywhere that would make them deportable under federal law.

While Arizona maintained that its law fell under the “cooperative” state and local efforts authorized by the IRCA, the U.S. argued that the Arizona law was clearly meant to supplant federal law and policy, not cooperate with it. Indeed, in Arizona Governor Jan Brewer’s signing statement, she specifically noted the federal government’s “misguided policy” on immigration enforcement.

The district court granted an injunction blocking the enforcement of all four provisions of Arizona’s law, and the Court of Appeals for the Ninth Circuit affirmed. Arizona appealed to the Supreme Court.

In an opinion by Justice Kennedy, the Court held that holding that the three of the challenged provisions were preempted by federal law, while the “show me your papers” provision could not be deemed preempted before seeing how it worked in practice and giving the state courts a chance to interpret it. Many were disappointed that the Court failed to enjoin the latter provision because it seems inevitable that it will lead to racial profiling (although the government did not make a racial profiling argument before the Court, choosing to focus on the preemption issue). Nonetheless, the majority left the door wide open to further action, stated clearly “[t]his opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” Overall, the majority made clear that immigration policy is properly a matter for the federal government to decide, not the states.

Justices Scalia, Alito, and Thomas each wrote separate dissents, but it was Scalia’s diatribe that has garnered the most attention for being political and not based on the factual record of the case (or really, any factual record). He derided the federal government’s immigration policy as “questionable” and “unwise,” and suggested that if the majority’s holding had been inserted in the Constitution, “[t]he delegates to the Grand Convention would have rushed to the exits.”

By striking down three provisions of the Arizona law and leaving open the possibility of striking down a fourth, the majority has fortified the federal government’s ability to maintain a uniform and effective federal immigration policy. It has also sent a signal to the various other states that have passed or are contemplating passing laws similar to Arizona’s that they cannot usurp the federal role in this important arena.