IRLI, in collaboration with the American Center for Law and Justice, filed amicus briefs supporting the State of Arizona in the district court, U.S. Court of Appeals for the Ninth Circuit, and U.S. Supreme Court (attached here, here, and here) on behalf of numerous United States Representatives and Senators in a lawsuit brought by the Obama Administration to challenge Arizona’s landmark cooperative immigration enforcement law, known nationally as Senate Bill (S.B.) 1070. Arizona passed S.B. 1070 in 2010 to address the large number of illegal aliens residing within the state. The brief submitted by IRLI supported S.B. 1070 because the provisions of the law did not conflict but rather complimented federal immigration law. Additionally, the Executive branch does not have the necessary plenary power over immigration to preempt a state’s law. Only Congress holds that important power which should not be exercised by the Executive.
States have enacted numerous immigration enforcement related laws since 2002 in response to the abject failure of the Bush and Obama Administrations to fulfill the federal government’s duty to protect the sovereignty of the United States, as directed by the Congress. S.B. 1070-model laws enacted in states like Utah, Indiana, South Carolina, Georgia and Alabama are the latest developments in this growing area of the law. Arizona Governor Jan Brewer signed S.B. 1070 on April 23, 2010.
Within days, four lawsuits were filed by individuals and groups hostile to immigration law enforcement, including the American Civil Liberties Union (ACLU). In an unprecedented move, the Obama administration filed a fifth lawsuit in July 2010, three weeks before S.B. 1070 was due to go into effect.
On July 28, 2010, Arizona District Court Judge Susan R. Bolton granted the Administration’s request for a preliminary injunction. That ruling prevented several provisions of S.B. 1070 from going into effect. Those provisions standardized state and local police procedures regarding illegal aliens, created a state crime for failure by an unlawfully present alien to comply with federal registration laws, and prohibited employment solicitation by unauthorized alien workers from ever taking effect. Judge Bolton later dismissed three of the other private lawsuits on procedural issues. The only original lawsuit remaining in Judge Bolton’s court is the case brought by the ACLU.
The State of Arizona appealed Judge Bolton’s injunction to the Ninth Circuit. In April 2011, the Ninth Circuit affirmed the preliminary injunction in a 2-1 opinion. Federal Circuit Judge Richard Paez, writing for the majority, found that S.B. 1070 was impliedly preempted—that through the actions of Congress and of the Obama administration, Arizona did not have the authority to pass a law like SB 1070. Circuit Judge Carlos Bea, writing in dissent, believed that provisions of Arizona’s law was not only permitted, but specifically contemplated by statutes passed by Congress, including a statute that requires the federal government to respond to immigration status verification requests (8 U.S.C. § 1373) and a statute which expressly contemplates state and local officers assisting in immigration enforcement (8 U.S.C. § 1357(g)(10)).
Arizona appealed to the U.S. Supreme Court. On February 13, 2012, IRLI and IRLI Of Counsel Kris Kobach filed two amicus briefs with the U.S. Supreme Court. The combined briefs presented nineteen essential legal points that explained how the challenged provisions of S.B. 1070 are in full harmony with the federal immigration laws enacted by Congress. The briefs also explained the provisions of the U.S. Constitution which delineate the complementary roles of Congress, the executive branch, and the states in the enforcement of American immigration and nationality law.
In a 5-3 decision, the Supreme Court upheld the core provision of S.B. 1070. That provision (Section 2(B)) requires local law enforcement officers to make a reasonable attempt to determine the immigration status of an individual during a lawful stop if the officer has reasonable suspicion to believe the person is an illegal alien. In upholding Section 2(B), the Supreme Court made it clear that federal immigration law allows states to require its law enforcement officers to conduct immigration status checks. In writing for the majority, Justice Kennedy wrote: “Congress has done nothing to suggest it is inappropriate [for state officials] to communicate with ICE….” “Indeed,” Kennedy stated, “[Congress] has encouraged the sharing of information about possible immigration violations.”
The Court also set aside the complaints of amnesty advocates—at least for the moment. While acknowledging that the law could be implemented improperly [as any federal or state law could], the law had sufficient limitations that could also make its enforcement perfectly legitimate. For example, Justice Kennedy noted that S.B. 1070: creates a presumption of lawful presence if an individual presents certain valid forms of identification; prohibits officers from considering race, color, or national origin, in determining reasonable suspicion whether the individual is an illegal alien; and requires the state to implement S.B. 1070 in a manner consistent with federal laws. “At this stage,” Kennedy concluded, “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.”
Unfortunately, the Supreme Court struck down three other provisions of S.B. 1070, holding that those provisions were preempted by federal law. The three provisions struck down were:
Section 3, which provides that it is a violation of state law for an illegal alien to be in violation of the federal alien registration statutes;
Section 5(C), which creates a misdemeanor offense that prohibits illegal aliens from applying for work, soliciting work in public places, or performing work in Arizona; and
Section 6, which authorizes state and local police officers to conduct a warrantless arrest of an individual if the officer has probable cause to believe the person has committed a removable offense.
The Supreme Court struck down Section 3 based on the concept of field preemption. In essence, the Supreme Court held that Congress had reserved to itself the field of alien registration in its entirety and thus states could not enact alien registration laws, even if they exactly mirror federal law. Justice Kennedy wrote: “Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.” For this reason, Kennedy argued, it does not matter that Section 3 has the same aim as federal law and adopts the same substantive language.
Alarmingly, with respect to Section 3 Justice Kennedy also appeared to adopt portions of the Department of Justice’s argument that the Executive Branch has unfettered discretion to not enforce U.S. immigration law. Kennedy reasoned that if the Court let Section 3 stand, states would have the power to bring criminal charges against individuals “for violating federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.” Not only does this statement ignore the fact that the aliens would, in fact, be violating STATE law (the whole point of S.B. 1070), but Kennedy’s statement suggests that enforcing immigration laws Congress has enacted without the executive branch’s permission or input could be constitutionally questionable. This ignores that decades of Supreme Court rulings on preemption law have clearly stated that an inquiry on preemption starts and ends with Congressional intent.
The Supreme Court struck down Section 5(C) based on the concept of conflict preemption. This occurs when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Although Justice Kennedy acknowledged that Section 5(C) has the same goal as federal law—preventing unlawful employment—it involves a conflict in the method of enforcement. Congress made a conscious decision, said Kennedy, to only penalize employers for hiring illegal aliens and decided not to punish illegal workers for engaging in unlawful employment. And because Kennedy argues Congress intended this provision in the 1986 law to be a “comprehensive framework” for illegal employment, Section 5(C) of SB 1070 cannot stand.
While the Court bases its entire analysis of the constitutionality of Section 5(C) on congressional intent, the evidence of such intent is weak. The best examples Justice Kennedy cites (assuming he logically chose to include the best examples in his opinion) are statements from two members of Congress, one in 1971 and another in 1973, plus a 1981 report issued by the Select Commission on Immigration and Refugee Policy. Moreover, as Justice Scalia succinctly points out in his dissent, even if one were to assume that Congress intended to only penalize employers and not illegal aliens for engaging in unauthorized employment, there is no evidence to suggest that Congress intended to preclude states from penalizing illegal workers.
As with Section 5(C), the Supreme Court struck down Section 6 of S.B. 1070 based on the concept of conflict preemption, holding that it creates an obstacle to the full purposes and objectives of Congress. However, in his analysis, Justice Kennedy completely sidesteps Congressional intent and instead focuses on the powers of the Executive Branch. While describing in detail the statutory authority federal officers have to issue warrants and arrest immigration law violators, he makes absolutely no attempt to analyze congressional intent about state arrest authority. Instead, he simply argues that “authorizing state officers to decide whether an alien should be detained for being removable … violates the principle that the removal process is entrusted to the discretion of the federal government.” To allow Arizona to exercise such authority “without any input from the Federal Government,” he says, would allow state “to achieve its own immigration policy.”
Kennedy’s argument is deeply troubling on several levels. First, to suggest that by detaining removable aliens the state is taking control of the removal process is wholly illogical as state and local officials have no authority to deport illegal aliens. State officials who detain illegal aliens would merely have to hand them over to the federal government for it to decide whether to deport or release. But even more disturbing, the Court has through its analysis essentially adopted the U.S. Department of Justice’s argument that the Executive Branch has unfettered discretion to decide whether to enforce any immigration laws and that the states have only a few limited instances to intervene, such as Section 2(B). Clearly, the Court’s reasoning in striking down Section 6 makes it clear that this Supreme Court will demand Congress enact unequivocal, express language regarding state immigration authority before it will rule otherwise.
‘Illegal Alien’ the preferred phrase for Supreme Court Justices in US v Arizona oral argument, April 27, 2012
IRLI collaborates on important Supreme Court briefs in SB 1070 case, February 13, 2012
US Supreme Court to Review Arizona SB 1070 Laws and IRLI Attrition through Enforcement Policy, December 12, 2011
IRLI Files Supreme Court Brief on Behalf of US Congress Members Supporting Arizona SB 1070, September 18, 2011
Arizona Law Meant to Provoke Government Action, August 1, 2010
IRLI’s Mike Hethmon on Arizona SB 1070 Immigration Law, April 24, 2010