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The Supreme Court Decides Arizona’s Controversial Immigrant Policing Bill in Arizona v. United States

June 30, 2012 Uncategorized

In 2010, Arizona enacted a bill titled the Support Our Law Enforcement and Safe Neighborhoods Act. The stated purpose of the bill was to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”

There are four provisions of the bill that were at issue in Arizona v. U.S.  Two provisions created new state criminal offenses. Section 3 makes it is a misdemeanor for failure to comply with federal alien registration requirements. Section 5 makes it a crime for an unauthorized alien to seek or engage in work in Arizona.

The other two provisions deal with the power to arrest illegal immigrants. Section 6 authorizes police officers to arrest without warrant a person the officer has probable cause to believe has committed an offense that makes the person removable from the country.   Section 2(B) provides that an officer who makes a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the federal government.

The bill drew a national outcry by concerned citizens, civil rights, and immigrant groups.  The United States filed suit against Arizona seeking to block the suit, arguing that federal law preempted state law.

The Supremacy Clause of the U.S. Constitution provides that federal law is superior to state law, and therefore preempts state law where applicable. There are also two instances where state law must give way to federal law.

First, state law is precluded from regulating conduct where Congress, acting within its proper authority, has determined must be regulated by only the federal government. The second instance is where state law conflicts with federal law, such as where compliance with both state and federal law is an impossibility.

It is clear that the federal government has chosen to be the exclusive regulator of immigration laws and enforcement. Federal policy requires that a uniform immigration enforcement system be present throughout the country, as opposed to a patchwork of laws among the states. Several federal agencies are dedicated to the task of enforcement, such as Immigrations and Custom Enforcement and Customs and Border Protection. Hundreds of thousands of immigrants are removed from the country each year.

Here’s what the Court decided with respect to the individual sections.

As to Section 3 of the bill, federal law already makes it a crime to comply with federal alien registration requirement. The state crime for the same offense is preempted by federal law.

Section 5, which makes it illegal for an alien to seek work or to work, is also preempted by federal law. Federal law currently has a comprehensive framework that includes penalties for employers who hire illegal immigrants. Federal law does not provide criminal penalties on the immigrants themselves, however. Nevertheless, the Court found that this new state offense would frustrate the objectives that Congress is pursuing through its current framework for employers who hire illegal immigrants. Although the goals of Section 5 and federal law are the same, the technique by which Arizona would pursue that objective would complicate the federal government’s job.

Section 6 was also found to be preempted by federal law. Federal statutes provide when it is appropriate for an immigrant to be arrested for removal purposes. When a person is subject to removal, a notice to appear is issued by the court. The immigrant is not simply arrested and brought to the court. Suspicion that an immigrant is subject for removal is not grounds for arrest in the first place. Failure to appear before the court results in the issuance of a removal directive. Federal officers at that point have great discretion in whether to issue an arrest warrant. State officials acting on their own to arrest individuals suspected of eligibility for removal complicates the federal government’s job. Section 6 therefore is an obstacle to federal enforcement of the statutory scheme in place to deal with removals.

Section 2(B) was not found to be preempted by federal law. So long as this provision has not been shown to meddle with federal law, it will not be preempted, the Court said. The question of whether a stop or seizure is prolonged unconstitutionally by this law remains to be seen and was not before the Court at this time.

Contact ArborYpsi Law at 734-883-9584 or at bernstein@arborypsilaw.com to speak with attorney Sam Bernstein.

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