Arizona’s attempt to make criminals out of those who work or seek employment while unlawfully in the United States suffered a fatal blow in the U.S. Supreme Court today. The 5-3 decision, written by Justice Anthony Kennedy, held that Congress already has “decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment.” Thus, Section 5 of the 2010 Support Our Law Enforcement and Safe Neighborhoods Act (more commonly known as SB 1070), the only provision dealing directly with the employment of undocumented aliens, will never go into effect.
Only one of SB 1070’s four provisions survived Supreme Court scrutiny, and that provision remains in considerable jeopardy, depending on how it is applied and interpreted by Arizona courts.
The one provision the Court will allow to go into effect is Section 2(B), which requires state officers to make “a reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis “if reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.”
It was premature for the federal district court in Phoenix to bar that provision before it ever took effect because Arizona’s “state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.” The Supreme Court was unanimous on this point, with all eight participating justices voting to overturn the lower courts’ ruling on Section 2(B).
The Supreme Court compared the requirement to check the immigration status of a detainee to the requirement to use the federal E-verify system to check the work status of job applicants adopted by the Legal Arizona Workers Act, the state’s 2008 immigration law, which the Court upheld last term. Because federal law itself establishes such a verification system under the auspices of the Immigration and Customs Enforcement (ICE) agency, “the federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter.”
However, Justice Kennedy issued this clear warning to the state: “Detaining individuals solely to verify their immigration status would raise constitutional concerns.”
In addition to striking down the employment provision of SB 1070, the Supreme Court affirmed the lower courts’ decisions preventing enforcement of Section 3, which made it a state crime to fail to obtain and carry alien registration documents, and Section 6, which permitted state officers to arrest without a warrant an alien based on probable cause to believe she is removable from the United States.
Today’s ruling effectively renders SB 1070 mostly inconsequential in dealing with the real problems, explicitly acknowledged by the Court, that illegal immigration creates for Arizona. “Arizona bears many of the consequences of unlawful immigration,” Justice Kennedy wrote, stating further that the problems for the state “must not be underestimated.”
Today’s ruling may come as a surprise, given the near unanimous predictions of pundits, court watchers, and state officials after the April 25, 2012, oral argument that Arizona would win the case. It shouldn’t be a surprise to readers of Arizona Employment Law Letter, however — at least in regards to Section 5.
In the newsletter’s June 2012 article reporting on the oral argument, we predicted this outcome on the employment provision, including predicting exactly the five justices who voted to strike it down. Justice Kennedy was joined by Chief Justice John Roberts as well as the three justices in the Court’s liberal wing, Stephen Breyer, Ruth Bader Ginsberg, and Sonia Sotomayor. Justice Samuel Alito joined the majority with respect to Section 3 as well as Section 2(B). Justice Elena Kagan didn’t participate because she had worked on the case while she was solicitor general.
We will provide a full report on the decision in Arizona v. United States as well as the reaction to it in the August 2012 issue of the newsletter. If you have comments or questions you would like to see addressed in that report, call me or send me an e-mail.
Dinita L. James, the partner in charge of the Phoenix office of Ford & Harrison LLP, is the editor of Arizona Employment Law Letter. You can reach her at (602) 627-3520.