SCOTUS Ruling on Arizona S.B. 1070 Affirms States Have a Role to Play on Immigration


The federal government estimates that Arizona has one of the fastest growing illegal immigrant populations in the country, increasing from 330,000 in 2000 to 560,000 by 2008. In an effort to alleviate some of the problems associated with illegal immigration, Arizona passed S.B. 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act,” which is designed to “discourage and deter” illegal immigration. The Obama administration filed suit against Arizona, arguing that federal priorities preempt Arizona from enforcing the law. While the Supreme Court did not uphold S.B. 1070 in its entirety, most of the law’s provisions remain in effect, making the effort a success for Arizona.

Only four provisions of S.B. 1070 went before the Supreme Court, and one section, Section 2(B) was upheld. Section 2(B) was the key component of S.B. 1070 and it requires Arizona law enforcement to make a reasonable attempt, when practicable, to determine a person’s immigration status during a “lawful stop, detention, or arrest” if there is a reasonable suspicion “that the person is an alien and is unlawfully present in the United States.”

The other three sections were found to be preempted by federal law, Sections 3, 5(C), and 6. These provisions would have made it a state crime for an alien to fail “to complete or carry an alien registration document;” made it a misdemeanor for “a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor;” and would have authorized state and local officers to make arrests without warrant where there is probable cause to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States.”

As a result of Section 2(B), Arizona will now likely alert federal authorities about a greater number of illegal immigrants, though it seems unlikely that the change will have any effect on the Obama administration’s deportation agenda. The White House has already announced that it will not remove any illegal immigrants reported by Arizona unless the individuals have committed a violent crime. Furthermore, the White House has inexplicably rescinded the state’s 287(g) agreements, ending a program that allows local authorities to effectively investigate drug smuggling, human trafficking, cartel activity, and other cross-border crimes. Nevertheless, there will be an extensive record of Arizona’s communications and it will become a public relations nightmare for the White House if an alien that ICE refuses to pick up goes on to commit a horrible crime after being released back out onto the streets.

It is important to remember that other provisions of S.B. 1070 have not been struck down by the courts. For example, one provision allows Arizona residents to sue jurisdictions in the state that are acting like sanctuaries for illegal aliens. Another provision prohibits jurisdictions from refusing to provide information on immigration status for the purposes of determining eligibility for drivers licenses and other public benefits. Another provision requires law enforcement to alert federal immigration authorities when an illegal alien convicted of a state crime is released from jail. Other provisions make it a crime for a person to “transport or move an alien in Arizona in a means of transportation” or “conceal, harbor or shield an alien from detection in any place in Arizona to induce an illegal alien to reside in Arizona.” Another makes it a crime to stop one’s vehicle in such a way that impedes traffic so that one can “attempt to hire or hire and pick up passengers for work at a different location;” the provision also makes it a crime for the person being solicited to enter the vehicle. Because these and other provisions remain in effect, it is likely that supporters of illegal immigration will continue to file lawsuits against Arizona.

With over 11 million illegal immigrants in the country and only a limited number of ICE agents tasked with carrying out immigration enforcement, some support from the states is necessary. For those inclined to support the rule of law, better cooperation between the states and the federal government is welcomed. Those who seek continued lax enforcement of immigration laws are generally hostile to state involvement. The Obama administration is made up of people who clearly identify with the low-enforcement mindset which explains the administration’s opposition to states like Arizona. Clearly the administration has not filed any lawsuit against sanctuary cities which actively seek to undermine immigration law enforcement.

As a result of rulings from the Supreme Court and lower courts, the message is clear that even though a line must be drawn somewhere, states do have a role to play when it comes to immigration. It is likely that many states will follow Arizona’s lead and continue to serve as the laboratories of democracy as Americans call for increased enforcement of immigration laws.