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On June 25, 2012, the United States Supreme Court issued its ruling in Arizona v. United States, the controversial case involving two Arizona statutes designed to help curb and control illegal immigration. The statutes were enacted by the Arizona legislature in 2010. However, before the laws could go into effect, the United States filed suit against Arizona challenging the validity of four provisions of the statutes, arguing that the provisions should be enjoined as preempted by federal law. The case turned into a political divide across the county, with President Obama and the Democratic Party opposing the legislation, and the Republican Governor of Arizona and the Republican Party supporting the legislation.
The four provisions of the statutes opposed by the United States were: (i) Section 3- which makes failure to comply with federal alien-registration requirements a state misdemeanor; (ii) Section 5(c)- which makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; (iii) Section 6- which authorizes state and local officers to arrest without a warrant a person the officer has probable cause to believe has committed any public offence that makes the person removable from the United States; and (iv) Section 2(B)- which requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person’s immigration status with the Federal Government. The United States argued that these provisions infringed upon the constitutional rights of Arizona citizens.
The United States District Court for the District of Arizona ruled in favor of the United States, and issued a preliminary injunction preventing the four controversial provisions from taking effect. The Court of Appeals for the Ninth Circuit affirmed, and the Supreme Court granted certiorari to review the case, and to resolve “the interaction of state and federal power with respect to the law of immigration and alien status.”
On June 25, 2012, after months of speculation as to which political party would come out on top, the Supreme Court issued its ruling. Not surprisingly, both political parties declared the ruling a victory, and argued that the other political party suffered a defeat. In order to get to the bottom of this issue, a closer look at the ruling is necessary.
In its opinion, the Supreme Court found that Section 3, Section 5(c), and Section 6 were preempted under the concept of federalism, which, in short, provides that both the National and State Governments have elements of sovereignty the other is bound to respect. As stated by the Court, “States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” The Court determined that Sections 3, 5(c) and 6 were laws involving fields which were intended to be regulated exclusively by Congress, and not the States, and that the States had no power to enact legislation which conflicted with, or impeded, the enforcement of the related federal laws.
Specifically, with regard to Section 3, the Court found that by making the failure to comply with alien-registration requirements a misdemeanor without the possibility of probation, Arizona was adding a state-law penalty for conduct proscribed by federal law. Under federal law, while violation of alien-registration requirements is a misdemeanor, the individual who violated the law has the possibility of probation. The Court noted that Arizona’s proposed “framework of sanctions creates a conflict with the plan Congress put in place”, and that “permitting the State to impose its own penalties for federal offenses here would conflict with the careful framework Congress adopted.”
The Court struck down Section 5(c) on similar grounds, finding that the law’s provision making it a misdemeanor for an unauthorized alien to seek or engage in work “enacts a state criminal prohibition where no federal counterpart exists.” The Court analyzed federal law, and found that the current framework enacted by Congress provides criminal and civil penalties on an employer who hires an unauthorized worker, but that it does not impose any criminal sanctions on the employee. The Court determined that Congress made a deliberate decision not to impose criminal penalties on aliens who seek unauthorized employment. The Court further noted that state laws are preempted where they stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” As a result, the Court found that Section 5(c) was preempted by federal law because it would “interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens.”
Section 6 provided that a state officer could arrest a person if the officer has cause to believe the person had committed a public offense that made them removable from the United States. The Court found this provision gave state officers greater authority to arrest aliens on the basis of possible removability than Congress had given to trained federal immigration officers. Under federal law, and as a general rule, it is not a crime for a removable alien to remain present in the United States. When someone is suspected of being a removable alien, a federal official will issue a “Notice to Appear”, which instructs the individual to appear at a removal hearing to determine if removal is warranted. The Notice to Appear does not authorize an arrest.
Based on the current framework of federal law with respect to the removal process, the Court determined that Section 6 “violates the principle that the removal process is entrusted to the discretion of the Federal Government.” The Court determined that Congress has in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances. Consequently, because Section 6 authorized state and local officers to engage in enforcement activities as a general matter, it creates an obstacle to the full purposes and objectives of Congress, and is preempted by federal law.
The Court’s ruling on Sections 3, 5(c) and 6 were the basis for the Democratic Party’s claim of victory. Notably, when the Democratic Party spoke of victory, it failed to mention the Court’s ruling on Section 2(B).
Section 2(B) of the Arizona law was upheld by the Court. This section required state officers to make a reasonable attempt to determine the immigration status of any person they stop, detain, or arrest if reasonable suspicion exists that the person is unlawfully present in the United States. In order to perform the status check, the state officer would contact the Immigration and Customs Enforcement agency (“ICE”), which maintains a database of immigration records accessible by state officers at all times.
In the Supreme Court’s view, “the mandatory nature of the status checks [provided for in Section 2(B)] does not interfere with the federal immigration scheme.” The Supreme Court reasoned that federal law currently encourages the sharing of information about possible immigration violations, and that Congress has left open room for a state policy which requires that state officials contact ICE as a routine matter.
Additionally, the Court held that Section 2(B) included the three following safeguards which likely eliminate any concerns about infringement upon an individual’s constitutional rights: (i) a detainee is presumed not to be an alien unlawfully present in the United States if they have a valid Arizona driver’s license or other similar identification; (ii) officers may not consider race, color or national origin except to the extent permitted by the United States and Arizona Constitutions; and (iii) the provisions must be implemented in a manner consistent with federal law regulating immigration, protecting, the civil rights of all persons and respecting the privileges and immunities of United States citizens.
It should be no surprise that the Republican Party used the Court’s ruling on Section 2(B) as its basis to declare victory.
So, it appears the American public is once again in a situation where each political party is declaring victory over the same set of facts.
The question then becomes, can this be possible? Can both parties declare victory under the Court’s ruling?
Unfortunately, it appears too early to answer that question. While the Republicans did “win” on the enforceability of Section 2(B), there is a possibility that the Court’s ruling on Section 2(B) could be reversed in the future. For instance, the Court found that the safeguards put in place for Section 2(B) should reduce the risk of unlawful detention for an extended period of time while the required status check is performed. However, the Court also recognized the possibility that once the law goes into effect, actual enforcement of the law may lead to circumstances in which individuals are detained for unreasonable lengths of time. Because laws as drafted do not necessarily reflect how laws are enforced, the Court stated “there is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume Section 2(B) will be construed in a way that creates a conflict with federal law.”
In other words, the Court’s actual ruling on Section 2(B) is that the section is enforceable as drafted, but, if the actual enforcement of the law infringes upon the constitutional rights of citizens, the United States, or another party in interest, could appeal the law at that time. This could possibly lead to another appeal to the Supreme Court and a decision that the law is unconstitutional and preempted by federal law.
Therefore, as the Supreme Court’s decision stands today, the Democratic Party appears to have prevailed on the preemption of Sections 3, 5(c) and 6, and Republican Party appears to have prevailed on the Court’s initial ruling on the enforceability of Section 2(B).
However, Republican supporters of Section 2(B) should remain mindful that laws are not always enforced as written, and that the Court left open the possibility of future challenges to Section 2(B). Should a future challenge occur, and should the Court’s ruling on Section 2(B) get reversed, it may be difficult for the Republican Party to continue arguing that they prevailed in the litigation.
Until then, though, this appears to be the unique situation where both political parties are, in part, telling the truth in their declarations of victory.
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