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S.B. 1070 Opinion: You Win Some, You Lose Some, Arizona

By Robyn Hagan Cain on June 25, 2012 | Last updated on March 21, 2019

Two. Three. Four. And Five.

Those are the relevant numbers in Monday's Supreme Court decision on the Arizona immigration law.

The Court rendered its decision exactly two months after hearing oral arguments on whether federal immigration policy preempts Arizona S.B. 1070. Monday, the Court struck three of four key sections of S.B. 1070, Huffington Post reports. There were five justices in the majority.

The three preempted sections of S.B. 1070 are:

  • Section 3, which created a state crime for being in the United States without proper authorization. The Court held that Congress left no room for states to regulate in that field, whether curtailing or complementing federal law.

  • Section 5(C), which made it a crime for undocumented immigrants to apply for a job or work in Arizona. The Court noted that the Immigration Reform and Control Act imposes criminal penalties on employers that knowingly employ unauthorized workers, but only imposes civil penalties on aliens who seek, or engage in, unauthorized employment. Based on this distinction, the majority concluded that the Arizona immigration law posed an obstacle to federal law because Congress had already decided that it would be inappropriate to impose criminal penalties on unauthorized employees.

  • Section 6, which authorized state and local officers to make warrantless arrests of certain aliens suspected of being removable. The Court observed that, as a general rule, it is not a crime for a removable alien to remain in the U.S. Although federal law permits state officers to "cooperate with the Attorney General" in identifying and removing illegal aliens, it does not permit unilateral state action on such matters.

The lone, surviving provision -- Section 2(B) -- requires that officers who conduct a stop, detention, or arrest must verify the person's immigration status with the feds if they suspect the person is an illegal immigrant.

Though the Court upheld Section 2(B), that decision should not be misconstrued as a blanket ruling on the constitutionality of provision: The Court merely concluded that it was improper for the lower courts to enjoin the provision before the state courts had an opportunity to construe it, and without some showing that enforcement of the provision actually conflicts with federal immigration law and its objectives.

Justice Anthony Kennedy, writing for the majority, noted "The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation's meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law."

The Arizona immigration law ruling will likely send several states' legislatures scrambling to modify their own immigration laws: Alabama, Georgia, Indiana, South Carolina, and Utah have all adopted illegal immigration crackdowns similar to S.B. 1070.

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