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The Supreme Court today invalidated three of the four provisions of Arizona’s SB 1070 law before the court. In a 5-3 opinion in Arizona, et. al. v. United States, the Justices upheld, for now, Section 2(B) of the law which requires police, after a lawful stop, to check the immigration status of a suspected illegal alien. The Court found preempted sections that: make failure to comply with federal alien-registration requirements a state misdemeanor (Section 3); establish a misdemeanor for an illegal alien to seek or engage in work in the State {Section 5(C)}; and authorize state and local officers to arrest without a warrant a person an officer has probable cause to believe has committed a public offense that makes the person removable from the United States (Section 6).

NumbersUSA is pleased that the Supreme Court has upheld states' inherent authority to assist the Federal government in enforcing immigration laws. The most important state immigration-enforcement tool -- mandatory E-Verify to keep illegal aliens from obtaining jobs -- was upheld by the court a year ago. Under the Court rulings, all states have room to aggressively pursue attrition-through-enforcement measures even if the President of the United States chooses to ignore or violate congressionally passed immigration laws. We are particularly heartened by Justice Scalia's opinion that specifically questions the Obama Administration's unilateral decision not to enforce the law against 1.4 million illegal aliens under the age of 30.

-- NumbersUSA President Roy Beck

The opinion determined that it was improper for a lower court to enjoin the status check provision before the court had an opportunity to see it in action. Without some showing that its enforcement in fact conflicts with federal immigration law and its objectives, it was wrong for the lower court to prevent its implementation. The status check provision will take effect in Arizona if the 9th Circuit Court of Appeals does not delay it further, but opponents will likely try to build a case that the law violates federal law in practice.

The Court determined that the mandatory nature of the status checks does not interfere with the federal immigration scheme. They said that consultation between federal and state officials is an important feature of the immigration system. In fact, Congress has encouraged the sharing of information about possible immigration violations. However, the opinion said that it is not clear at this stage that Section 2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns, the opinion said.

The opinion said that Section 3 of the Arizona law intrudes on the field of federal alien registration. Therefore, it is not permissible for a state to establish a misdemeanor for failure to carry federal alien-registration documents.  

Section 5(C)’s criminal penalty for seeking employment interferes with the federal regulatory system, the Court found. The Justices interpreted the Immigration Reform and Control Act of 1986 (IRCA) to mean that  Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees, so it follows that a state law to the contrary is an obstacle to the regulatory system Congress chose.  

The opinion said that warrantless arrests of certain aliens suspected of being removable also creates an obstacle to federal law. Section 6, the Justices said, provides state officers with even greater arrest authority than federal officials.

The Justices affirmed, in part, the 9th Circuit Court of Appeals ruling on Sections 3, 5(C), and 6 and reversed, in part, the ruling on Section 2(B). That section is now remanded to the 9th Circuit for further consideration.

The opinion can be read here.

Interior Enforcement
Attrition through Enforcement
state policies