Arizona v. United States

The issue before the Supreme Court is whether federal immigration laws preempt Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”), the provisions of which order state law enforcement officers to work with federal officers in enforcing federal immigration laws and institute state penalties for any failure to comply with federal immigration laws. The Ninth Circuit affirmed the district court’s issuance of a preliminary injunction to prevent Arizona from enforcing four key provisions of S.B. 1070. A preliminary injunction is granted if the plaintiff can prove that it is likely to succeed on the merits of the underlying claim, that the plaintiff will suffer irreparable harm if the injunction is not granted, and that the balance of equities and the public interest are in favor of granting the injunction. Here, the Ninth Circuit found that the United States was likely to succeed on the merits of its claim that federal law preempted S.B. 1070 and affirmed the injunction.

Petitioners State of Arizona and Janice K. Brewer, in her official capacity as Governor of Arizona, argue that since S.B. 1070 simply seeks to enforce federal law in cooperation with federal officers rather than enforce Arizona’s own state standards, federal law cannot preempt the statute. However, the United States contends that the federal government holds exclusive power to regulate immigration, that immigration is closely related to foreign affairs, and that Arizona cannot adopt its own immigration policies because it frustrates objectives.

Infringement upon Federal Government’s Discretionary Right to Set Immigration Policies

The United States argues that the power to regulate immigration is exclusively federal. The United States maintains that exclusively federal regulation of immigration is necessary because nation’s relations with aliens residing in its territory are intertwined with the United States’ relationships with other nations, and that it is crucial that the country presents a single policy on immigration. The United States contends that the Immigration and Nationality Act (“INA”), which thoroughly regulates the status of aliens, gave the Executive Branch the ability to exercise its full discretion. The United States cites the Executive Branch’s ability to abandon removal proceedings without its decisions being subject to judicial review, its ability to free aliens on bond or conditional parole, and its ability to grant aliens relief from removal as examples of its discretion. The United States argues that the federal government’s right to use discretion is necessary because of the need to wisely allocate enforcement resources and because of the Executive branch’s needs to handle any repercussions stemming from decisions regarding aliens. The United States contends that Arizona, through its statute, would inevitably infringe upon the Executive Branch’s discretion by being able to enforce federal immigration law without taking into account federal immigration policies.

Arizona argues that Congress intended cooperation between state and federal law enforcement officers in enforcing immigration laws. Arizona maintains that through 8 U.S.C. § 1357, Congress has made clear that state officers may enforce federal law and that federal officers should be responsive to inquiries of state officers. For instance, Arizona argues that the provision of S.B. 1070 that allows state officers to make warrantless arrests as long as there is probable cause, is constitutional because state officers have concurrent authority to arrest unlawful aliens based on federal law. Arizona contends that its officers have authority to make arrests for civil and criminal violations of immigration law, and that state officers will make such arrests in a manner that does not deviate from federal law. Arizona argues that the Ninth Circuit incorrectly found that Congress intended to allow state officers to enforce immigration policies concurrent with federal officers only either based on an agreement with the Attorney General. Arizona states that S.B. 1070 will not increase interference with federal immigration enforcement because state and local law enforcement officers already often verify immigration statuses when they conduct stops or book aliens into jail. Arizona emphasizes that states generally have the right to enforce federal laws provided there is not an explicit Congressional statement to the contrary.

States’ Ability to Punish Conduct Regulated by the Federal Government

The United States argues that provisions of S.B. 1070 give Arizona the ability to independently create state offenses and impose penalties for violations of federal law. Therefore, the United States maintains that this is not cooperative law enforcement as Arizona claims. The United States argues that requirements imposed on aliens, such as alien registration, are under the exclusive authority of the Executive Branch, and states cannot impose penalties for violations in an area where the conduct is comprehensively regulated by the federal government. The United States contends that the relationship between aliens and the government is federal in nature, as it is created and regulated by federal law, and the failure to comply with any federal requirements should not result in any state penalties. The United States argues that a violation of federal immigration law should not result in state penalties because alien registration does not implicate any state police powers. The United States contends that in similar areas of law that are also under the exclusive authority of the federal government, the Supreme Court has found that states did not have a right to impose independent penalties, and the United States argues that the Supreme Court should make a similar finding here.

The United States argues that the punishments that the Arizona statute sets forth are especially problematic because they conflict with the purposes of federal immigration law. The United States asserts that under S.B. 1070, Arizona would only punish aliens who have not obtained authorization to stay in the United States, but maintains that the federal scheme does not view unlawful presence as a crime and affords relief in at its discretion. Furthermore, the United States argues that while the INA provides that employers check an employee’s employment eligibility after he or she is hired, S.B. 1070 imposes criminal penalties for merely soliciting or applying for work. In this way, the United States contends, the statute conflicts with the federal immigration laws and their flexibility.

Arizona, on the other hand, argues that the statute is constitutional because the Supreme Court has previously found that as long as Congress has not declared that federal law preempts an entire area of law, states were free to prohibit conduct that is also prohibited under federal law. It contends that states are free to aid the federal government with national issues. Arizona asserts that because the registration provision of S.B. 1070 prohibits exactly what federal immigration law prohibits and imposes nearly identical penalties for failure to comply with registration requirements, the provision is valid. Moreover, Arizona contends that prohibiting employers from hiring unauthorized aliens is consistent with federal law’s objective of curtailing employment of unauthorized aliens, making the provisions regarding employment valid as well. Arizona argues that it has the right to regulate that particular area of immigration law because the regulation of employment falls under traditional state police powers and protecting its workers is a legitimate interest.

In asserting that federal law does not preempt the penalties imposed by S.B. 1070, Arizona emphasizes that the Supreme Court has, in previous cases, rejected the argument that the federal government’s decision not to adopt a regulation automatically prohibits states from adopting it. Arizona asserts that it should not be any different for immigration law and thus, states should be able to create regulations in areas of traditional state authority such as employment even if it affects immigration, where Congress has purposely refrained from doing so.