On June 25, 2012 the United States Supreme Court handed down its long awaited decision in the landmark case Arizona vs. United States. Unlike the prediction of most experts, the main issue in the decision was not the fourth amendment’s issue of unjustifiable arrests or the 14th amendment issue of racial profiling.
The decisive issue for the court was federal preemption- whether the federal immigration law preempted the state of Arizona’s attempt to regulate the immigration system. In April 2010, the state of Arizona enacted SB 1070 which contained four significant provisions. Section 3 which make failure to comply with federal alien registration requirements a state misdemeanor. Section 5c makes it a misdemeanor to seek or engage in work in the state of Arizona. Section 6 of SB 1070 which provides that a state officer, without a warrant may arrest a person if the officer has probable cause to believe that the person has committed a deportable offense. Section 2b requires officers conducting a stop or arrest to make reasonable efforts to verify the person’s immigration status with the Federal government.
The court held that under Article 1 section 8 clause 4 of the Constitution, Congress has the power to establish “a uniform rule of naturalization.” Furthermore the Supremacy Clause of the constitution gave congress the power to preempt state law in three instances.
1.States are precluded from regulating conduct in a field that congress has determined must be regulated by its exclusive governance.
2.Congress has left no room for the states to supplement it where a federal interest is so dominant that the federal system will be assumed to preclude enforcement of the state law.
3.State laws are preempted when they conflict with the Federal law and are inconsistent with the purposes and objectives of congress.
Section 3 of SB 1070 is precluded because it intrudes on the field of alien registration. Section 3 of SB 1070 imposes a criminal penalty for failure to carry an alien registration document, whereas federal law makes it merely a violation of immigration regulation. The court held that the federal immigration regulations are so complete and comprehensive that it did not allow the states to curtail or compliment federal law or to impose additional sanctions.
Section 5c of SB 1070 which imposes a criminal penalty on unauthorized aliens who knowingly apply for work, solicit work in a public place or work as employees of independent contractors is inconsistent with the employees sanction provision of the Immigration Reform and Control and Act of 1986 (IRCA). In 1986 Congress enacted Immigration Reform and Control Act (IRCA) as a comprehensive framework for combating the employment of illegal aliens. It decided to impose sanctions on employers who knowingly employ unauthorized workers. Congress decided to impose several sanctions on employers, but decided not to impose civil or criminal sanctions on the workers. Thus the attempt by Arizona not only seeks to intrude on a field that has been extensively regulated by congress, but the imposition of criminal sanctions is clearly inconsistent with the congressional intent and policy.
The Supreme Court pointed out that it is not a crime for removable alien to remain in the U.S. When an alien is suspected of being deportable, the immigration officer serves him with an administrative document called a Notice to Appear and the individual goes through deportation proceedings before an immigration judge. The court pointed out that Section 6 of SB 1070 would grant state officers greater authority to arrest aliens than has been given to trained deportation officers. Section 6 violates the principle that removal of unauthorized aliens that is a process that exclusively entrusted to the federal government and the arrest of unauthorized aliens is inconsistent with the policies of congress.
Section 2b of SB 1070 requires state officers to make a reasonable attempt to determine the immigration status of any person they stop or detain on some other legitimate basis that if reasonable suspicion exist that the person is an alien, and is unlawfully present in the U.S. The court pointed out that the acceptable way to perform these status checks is for the state officer to contact Immigration Customs Enforcement (ICE) which maintains a data base of immigration records. There are three constrains which are built into the state provision. Firstly, a detainee is presumed not to be an unlawful alien if he or she provides a valid Arizona driver license or similar documentation. Secondly, an officer may not consider the individual’s race, color or national origin. Thirdly, the provision must be implemented in a manner consistent with federal immigration laws and U.S. civil rights laws. The court also took judicial notice of the possibilities of prolonged detention while the status checks are being performed. The court noted that detaining individuals solely to verify their immigration status would raise constitutional concerns. While the court held that section 2b of SB 1070 was constitutional, it warned that “this opinion does not foreclose other challenges to the law after it goes into effect”.
The Supreme Court decision upholding Section 6 of SB 1070 is a Pyrrhic victory. Hours after the decision, the Department of Homeland Securities cancelled agreements with seven Arizona police departments that deputized police officers while on street patrol. Federal immigration officers indicated that they would assist in verifying the status of the detainees but they would not pick up detainees unless they constitute a threat to public safety and national security. Meanwhile, the Arizona Police Department will find itself between a rock and a hard place. They may be sued by disgruntled residents for not enforcing section 6 of SB 1070, and by immigrant’s rights advocates for racial profiling. The ruling to uphold section 6 will create several challenges, both to the Department of Homeland Security and the Arizona state police. It is expected to flood the federal verification hotline with over 50,000 calls per year and will force police to devote an exorbitant amount of time in bureaucratic paper work and unnecessary litigation, thereby neglecting other vital law enforcement functions. When the state of Arizona realizes in the next few years that this provision is an exercise in futility, they would have no other option than to repeal it.
*Colin A. Moore is senior editor of Caribbean Weekly and Adjunct Professor (emeritus) of Constitutional law at Brooklyn College.
