Supreme Court Gives Some Support to Arizona’s S.B. 1070

By Jon Feere, June 25, 2012

The federal government estimates that Arizona has one of the fastest growing illegal immigrant populations in the country, increasing from 330,000 in 2000 to 560,000 by 2008. In an effort to alleviate some of the problems associated with illegal immigration, Arizona passed S.B. 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act,” which is designed to “discourage and deter” illegal immigration. The Obama administration filed suit against Arizona, arguing that the state did not have the authority to enforce the act. Four provisions of S.B. 1070 went before the Supreme Court, and one section, Section 2(B) was upheld. Section 2(B) was the key component of S.B. 1070 and the Court has made it clear that states have a role to play on immigration. Three sections were found to be preempted, Sections 3, 5(C), and 6.

The opinion is online at: http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf

The outcome is as follows:

UPHELD:

  • Section 2(B): Requires Arizona law enforcement to make a reasonable attempt, when practicable, to determine a person's immigration status during a "lawful stop, detention, or arrest" if there is a reasonable suspicion "that the person is an alien and is unlawfully present in the United States."

PREEMPTED

  • Section 3: Makes "willful failure to complete or carry an alien registration document" a state crime.

  • Section 5(C): Makes it a misdemeanor for "a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor in [Arizona]."

  • Section 6: Authorizes state and local officers to make arrests without warrant where there is probable cause to believe "the person to be arrested has committed any public offense that makes the person removable from the United States."

Practical Matters:

  • Section 2(B) was the key provision in S.B. 1070, and it was upheld. The ruling lends more support to the fact that states have a role to play when it comes to deterring illegal immigration. While the decision was not a complete win for Arizona, Section 2(B) will have a significant impact in that it will allow local law enforcement to serve as a force-multiplier for immigration law enforcement.

  • States will likely follow Arizona’s lead and craft similar legislation designed to discourage illegal immigration. The Supreme Court has given the green light Section 2(B), just as it did with E-Verify last year. Today, 15 states have some form of an E-Verify mandate and many other states are considering legislation.

  • There will now be an extensive record every time Arizona contacts ICE about an illegal alien detained by local law enforcement. When the White House inevitably refuses to take an illegal alien into custody, forcing Arizona to release the alien back out onto the streets, it will become a national story if the alien goes on to commit a serious crime. Lax federal enforcement of immigration laws will be to blame.

  • Congress could alleviate some of the Court’s preemption concerns (and effectively overcome the ruling) by clarifying that Arizona’s S.B. 1070 does not conflict with congressional intent. A change to statutory law would suffice, though it would likely have to wait until a more pro-enforcement-oriented Congress is elected.

  • Additional lawsuits are pending. Well-funded, high-immigration groups filed a number of lawsuits over the past two years. The outcome of those cases may have an effect on S.B. 1070 and similar state legislation in the coming years.

  • Public Support for S.B. 1070 continues to rise as people become better-informed about the law. A
    Quinnipiac poll from April 2012 found that 68% support and 27% oppose the law. Support was lower a couple of years ago, but the public is now better informed and overwhelmingly sides with Arizona.

Ultimately, the decision is perfectly timed to make immigration and states’ rights a central issue in the presidential election. If the Court’s decision is an indicator of future immigration policymaking, states will continue to play a leading role, despite the Obama administration's attempt to stop the people of Arizona from securing their state.