Analysis: Why the Supreme Court struck down 3 provisions of Arizona’s immigration law
Overview of the three provisions in Arizona’s immigration law that were struck down by the Supreme Court on June 25, 2012:
Section 3 of S.B. 1070 would make the “ willful failure to complete or carry an alien registration document ” a misdemeanor crime punishable by jail time or fine in Arizona.
State lawmakers argued that Section 3 should stand because it merely copies the federal law concerning alien registration.
However, the court pointed out that the Arizona law differs with the federal law in a very significant way: it “rules out probation as a possible sentence (and also eliminates the possibility of a pardon)” for violation of the federal requirement. Thus, the penalty for not carrying a federal registration document is more severe under state law than federal law.
The inconsistency of “this state framework of sanctions creates a conflict with the plan Congress put in place,” wrote Justice Kennedy.
Section 5(c) would impose new criminal penalties on the act of seeking, accepting, or performing work by undocumented immigrants. Any “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” could be convicted of a state misdemeanor and could face a $2,500 fine and up to 6 months of jail time.
However, federal law only imposes civil – not criminal – penalties against undocumented immigrants who seek or perform work. Unlike Section 5(c), violation of federal law does not carry jail time although the undocumented worker could face deportation.
Rather, federal law “makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers” and requires employers to verify the legal status of employees, and employers could face criminal and civil penalties for violating federal law.
The Supreme Court pointed out that Congress “made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” In drafting the Immigration Reform and Control Act [IRCA] of 1986, Congress rejected proposals to “make unauthorized work a criminal offense” because it concluded that “making criminals out of aliens engaged in unauthorized work—aliens who already face the possibility of employer exploitation because of their removable status—would be inconsistent with federal policy and objectives.”
“Under Section 5(c) of S.B. 1070, Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens. Although Section 5(c) attempts to achieve one of the same goals as federal law – the deterrence of unlawful employment – it involves a conflict in the method of enforcement,” wrote Justice Kennedy.
Section 6 of S.B. 1070 would allow Arizona police to “without a warrant, may arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.”
The Supreme Court noted that it is not technically a crime for a “removable alien” to remain in the United States. As such, federal law requires a warrant to arrest an alien who is ordered to be deported. The U.S. Attorney General is granted discretion on how to exercise the authority to issue deportation arrest warrants.
Arizona’s law would actually give state law enforcement “even greater authority” to arrest suspected illegal immigrants “than Congress has given to trained federal immigration officers.” This interferes with the federal government’s enforcement of immigration laws.
Section 6 “would allow the state to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed,” the Supreme Court stated.
- SupremeCourt.gov: Arizona v. United States opinion issued on June 25, 2012 (PDF)
- WhatTheFolly.com: Supreme Court invalidates bulk of Arizona’s immigration law
- WhatTheFolly.com: Justice Department sues Maricopa County Sheriff for discriminating against Latinos
- WhatTheFolly.com: Transcript: Supreme Court oral argument of Solicitor General Donald Verrilli on Arizona’s immigration law
- WhatTheFolly.com: Transcript: Supreme Court oral argument of Paul Clement on Arizona’s immigration law