Arizona Immigration Case Hits Supreme Court, But Racial Profiling Not Up for Debate


The broad, overarching issue as portrayed in the briefs on both sides in Arizona v. United States is whether a state has an “inherent authority” to enforce the nation’s federal immigration laws or whether such a state’s “experimentation” is preempted under the Supremacy Clause.  

Of course, the answer to this broad question need not be the same with respect to each of the four challenged provisions of SB 1070. In particular, I find the proposed creation of new state crimes penalizing and enforcing already on-the-books federal immigration criminal provisions especially problematic. For example, there are several criminal provisions already in existence, “willful failure to register” and failing to carry a “registration” or “receipt card” provided one has already been issued. 

The United States’ merits brief does a good job arguing that it is impermissible for the states to criminalize behavior which would solely be a violation of federal and not state law. I also found persuasive the arguments that the states may not impose additional penalties for violations of federal law.  For example, the failure to register (“unlawful presence”) provisions of SB 1070, in section 3, importantly provide that someone convicted of this new state violation would not be permitted to obtain probation or a suspended sentence, something which is would still be allowed for under federal law. So, a harsher penalty scheme is imposed under the new state rule.  

In addition, along the same lines, the provision in section 5 of the Arizona law, making seeking to work or working while not authorized to do so by the federal immigration authorities a state law violation. As the brief filed by the United States pointed out, this is problematic as merely “working without authorization” is not even a criminal offense, without more, such as a document fraud or deception. 

In addition, the new state law offense would criminalize “seeking to work” which has never been criminalized thus far. The legislative history of IRCA shows that employers were meant to receive civil and ultimately criminal sanctions for employing unauthorized alien workers, but that sanctions for employees were to be civil in nature, such as the institution of civil removal proceedings. 

With respect to the other two provisions concerning stop and arrest with reasonable suspicion (Section 2) and the authorization of warrantless arrests of aliens upon probable cause (Section 6), I was disappointed that the issue of racial profiling did not even arise, and in fact was ignored in the briefing, although it was addressed by the amici.