Download Oral Argument (right click and save)
Whether state governments have the authority to enact immigration policies that enforce federal immigration law. Specifically, whether Arizona Law S.B. 1070, which essentially required state and local police to enforce federal immigration laws, usurped the federal government’s constitutional authority to regulate and enforce immigration policy in violation of the Supremacy Clause.
The Obama administration often under-enforced federal immigration laws. Facing illegal immigration, increasing drug and human trafficking, and other public safety concerns in the state, the Arizona legislature enacted S.B. 1070, known as the “Support our Law Enforcement and Safe Neighborhood Act,” which compelled state law enforcement agencies to enforce federal immigration law. The act included state-level misdemeanor provisions applicable to unlawful aliens, such as requiring them to comply with federal registration requirements and prohibiting them from seeking employment within the state. It also authorized officers to arrest those suspected of committing crimes warranting deportation, and it required officers conducting stops and arrests, in some circumstances, to verify the immigration status of suspected illegal aliens.
The Obama administration sued in federal court, claiming primarily that Arizona’s law usurped the powers of the federal government in violation of the Supremacy Clause by encroaching on federal authority to regulate immigration.
The Court Below
The United States District Court for the District of Arizona was the first to hear the case. It evaluated the constitutionality of individual provisions of the law, granting a preliminary injunction to the United States on four sections of the law that it believed would be held unconstitutional. See opinion below:
United States v. Arizona, 703 F.Supp.2d 980 (D. Arizona, 2010)
Arizona appealed to the U.S. Court of Appeals for the Ninth Circuit, which affirmed the lower court decision. See opinion below:
United States v. Arizona, 641 F.3d 339 (9th Cir., 2011)
Arizona appealed to the Supreme Court, which granted certiorari and struck down three of the four state provisions while remanding the case to the lower courts. It held that the fourth injunction against requiring officers to verify immigration status was improper. See opinion below:
Arizona v. United States, 132 S.Ct. 2492 (2012)
Question before the Court
“Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act (S.B.
1070) to address the illegal immigration crisis in the State. The four provisions of S.B. 1070
enjoined by the courts below authorize and direct state law-enforcement officers to
cooperate and communicate with federal officials regarding the enforcement of federal
immigration law and impose penalties under state law for non-compliance with federal
“The question presented is whether the federal immigration laws preclude Arizona's
efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B.
1070 on their face.”
CCJ filed an amicus curie in 2011 in support of Arizona requesting that the Supreme Court accept Arizona’s appeal from the court below. CCJ then wrote a second, more detailed amicus curie in 2012 in favor of Arizona after the Supreme Court granted certiorari.
Summary of the 2012 amicus curie in favor of Arizona:
Congress, not the executive, has the plenary power over immigration policy because Congress alone is vested with the power to “establish [a] uniform Rule of Naturalization.” In Galvan v. Press (1954), the Supreme Court stated “that the formulation of [immigration] policies is entrusted exclusively to Congress,” a concept that “has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government.” Further, it is true that national law may supersede state law under the Supremacy Clause, but as the Court held in Rice v. Santa Fe Elevator Corp. (1947), if Congress wishes to preempt a harmonious state policy, it must explicitly write it into the text of the law. Other cases support this point. The Arizona law expressly follows congressional policy, the text mirrors the provisions of the federal law, and Congress has not preempted the state statute.
It is primarily the intent of Congress, not that of the executive branch, that applies to the enforcement of federal laws. Federal immigration laws state that the attorney general is to communicate with state officials regarding the immigration status of individuals. The wording within the laws require federal immigration officers to cooperate with other federal, state, and local law enforcement agencies. The text of the immigration laws indicates that Congress wanted states to help enforce immigration policy. Although Congress has granted the executive branch discretion in enforcing immigration laws, such discretion cannot override state laws that are more consistent with the intent of Congress.
States have broad powers to protect the health, safety and welfare of their citizens. While states cannot add nor detract from federal immigration policy, the Court has affirmed that they have the power to make laws that touch upon immigration and may affect immigrants. The 2010 census estimated that there were more than 10 million undocumented immigrants living within the United States. This large number has compelled states to enact policies that assist immigration enforcement for the welfare and safety of their citizens, who often fall victim to the violent crimes of illegally aliens. Further, as Professor Nicholas Kanellos stated, the under-enforcement of immigration law leads to health concerns for illegal aliens themselves. For example, their illegal status keeps them from reporting employment abuse. Under-enforcement creates an underclass of residents who may be compelled to accept unsafe and unfair working conditions.
All 50 states have recognized the federal government’s failure to address undocumented immigration. In 2011 alone, they introduced a total of 1,607 bills pertaining to immigrants and refugees. Numerous states, including New Jersey and Rhode Island, authorized their law enforcement to “inquire about a person’s immigration status.” Other states such as South Carolina required employers to use E-Verify when hiring. States variously noted that illegal aliens increase unemployment of citizens, drain funds for public education, and incur healthcare costs that taxpayers must subsidize. Others noted public safety as a central reason for pushing legislation. Thus it is not only Arizona that has recognized the failure of the government to enforce immigration policy, but many other states have also taken similar positions. These state laws are in keeping with legitimate state police powers, Congress has not preempted them, they enhance enforcement of federal immigration law, and they ensure safe and prosperous living and working environments for all legal residents.
The Supreme Court held that federal law preempted three state provisions that variously required compliance with federal registration, authorized arrests for removable offenses, and prohibited aliens from seeking jobs. Yet the Court tentatively agreed with CCJ on general principle with the fourth provision, holding that the lower court’s injunction on the provision requiring law enforcement to verify immigration status during lawful detentions was premature and improper. The state law had not proven to conflict with federal law or policy. It remanded the case to the lower courts, holding that preemption was unlikely. The Court did not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it was to go into effect.