Federal Law Preempts Only Two Provisions of Arizona Immigration Law

JURIST Guest Columnist Steven Fazzi, University of the Pacific McGeorge School of Law, is a Legislative and Comment Editor for the McGeorge Law Review. Here he argues that the Supreme Court should find federal law preempts only two provisions of Arizona's Support Our Law Enforcement and Safe Neighborhoods Act...



Immigration law and its enforcement are hot topics in American discourse and little wonder: according to a Pew report, there were 11.2 million undocumented noncitizens living in the US as of March 2010. Further, according to a Department of Homeland Security report [PDF], another 12.6 million legal permanent residents lived in the US as of January 2010. Laws affecting immigrants, albeit not properly considered immigration laws, as they do not consider who is permitted to remain within our borders, are equally newsworthy. For example, laws limiting immigrants' access to US jobs are popular political fodder even though immigrants' prevalence in the US workforce is frequently overstated. Likewise, laws affecting immigrants' access to healthcare and to financial aid for postsecondary education are popular topics.

In the American discourse on immigration law and on other laws affecting immigrants, one state has distinguished itself as more visible than the rest: Arizona. Last term, in Chamber of Commerce v. Whiting, the Supreme Court considered the constitutionality of (1) the provision of the Legal Arizona Workers Act punishing state employers who knowingly or intentionally employ undocumented immigrants against an express preemption challenge and (2) Arizona's mandate that employers use the federal E-Verify system to confirm employment eligibility against an implied preemption challenge. By a 5-3 vote, the Supreme Court upheld the former against an express preemption challenge and the latter against an implied preemption challenge. Before the current term concludes, the Court will decide whether to uphold the preliminary injunction issued against Arizona's Support Our Law Enforcement and Safe Neighborhoods Act, a bill enacted as SB 1070 in April 2010.

The US challenged six of the SB 1070's provisions in the US District Court of Arizona, in United States v. Arizona. That court concluded that Congress' Immigration and Nationality Act (INA) likely preempts SB 1070 §§ 2(B), 3, 5(C) and 6. The US Court of Appeals for the Ninth Circuit affirmed 2-1, and the Supreme Court granted certiorari. The Court should conclude, as Ninth Circuit Judge Carlos T. Bea did in his partial concurrence and partial dissent, that federal law preempts only §§ 3 and 5(C).

SB 1070 § 3 makes "a person ... guilty of willful failure to complete or carry an alien registration document if the person" violates certain federal immigration registration rules, namely, failing to carry registration documentation at all times or willfully failing to register. Persons in violation of SB 1070 § 3 may be fined up to $100, jailed for up to 20 days for a first offense and jailed for up to 30 days for each subsequent offense. The text of the INA does not contemplate that state officers would enforce the registration rules punished by SB 1070 § 3. Congress could have authorized the states to enforce these rules, but it has not expressly done so. Therefore, the Supreme Court should find that the INA preempts SB 1070 § 3.

SB 1070 § 5(C) makes it a misdemeanor for "a person who is unlawfully present in the US 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 in this state." It is clear that states can regulate undocumented immigrants' employment. Whether a state may criminalize undocumented immigrants who have already obtained work is an altogether different matter. Congress has enacted 8 USC § 1324a, which penalizes employers who knowingly or negligently hire undocumented immigrants, and 8 USC § 1324a(b), which requires employers to verify work authorization. Congress has also enacted 8 USC § 1324a(g)(1)-(2), which safeguards undocumented immigrants from financial penalties for obtaining work. In sum, under the INA, Congress' intended method of curtailing unauthorized immigrant employment is to penalize employers rather than to criminalize undocumented immigrants who gain work. The Court should find that federal law preempts SB 1070 § 5(C).

SB 1070 § 2(B) directs each officer who has reasonable suspicion that a person lawfully arrested is an undocumented immigrant to make "a reasonable attempt ... when practicable, to determine the [person's] immigration status." It also instructs Arizona officers to determine each arrestee's immigration status prior to release and to verify that status with the federal government. SB 1070 § 2(B) seems to satisfy Congress' intent—as expressed in 8 USC § 1373(c)—that state officials aid federal officers to check persons' immigration status. True, pursuant to 8 USC § 1357(g)(1), Congress envisioned that the Attorney General would authorize state officers' enforcement of federal immigration laws by written agreement, and SB 1070 § 2(B) does not explicitly contemplate any such agreements.

However, Congress did not mandate a written agreement for every manner of local-federal immigration law enforcement cooperation. In fact, 8 USC § 1357(g)(10) explicitly contemplates that state officers may communicate a person's immigration status to the Attorney General—or identify, apprehend or detain undocumented immigrants—without written agreement. Moreover, SB 1070 § 2(B)'s scope seems to be narrow: the provision pointedly does not direct Arizona's law enforcement officers to perform removal or other federal immigration law functions. On the whole, SB 1070 § 2(B) seems to be in lockstep with the INA's provisions, and the Supreme Court should decide that it is not preempted by federal law.

SB 1070 § 6 authorizes each Arizona peace officer to, without warrant, arrest any person where "the officer has probable cause to believe ... [t]he person ... has committed any public offense that makes the person removable from the United States." 8 USC § 1252(c) provides that state and local officers may arrest and detain individuals illegally present in the US provided that those individuals have "previously been convicted of a felony in the United States and deported or left the United States after such conviction" and that "the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual."

SB 1070 § 6 makes no mention of the felony conviction and the Immigration and Naturalization Service confirmation requirements contained in the federal regulatory scheme. This could be problematic from an enforcement standpoint: it charges Arizona's peace officers with the unenviable task of determining whether a particular offense makes an immigrant removable and some lawfully admitted noncitizens could be inconvenienced with warrantless arrests. However, the Court should not invalidate SB 1070 § 6 based on this possibility or on the fact that the bill effectively grants Arizona peace officers greater authority to make warrantless arrests than federal immigration officials enjoy. Under 8 USC § 1357(a) a federal officer may effect warrantless arrests of undocumented immigrants only when (1) the federal officer views an immigration violation or (2) it is likely that an undocumented immigrant will escape before a warrant will issue. Instead, the Court should find that SB 1070 § 6's authorization of warrantless arrests is contemplated under the aforementioned 8 USC § 1357(g)(10) and thus not preempted. Whatever the Court decides in Arizona v. US, its decision is sure to only stoke the ongoing American discourse on immigration laws and on other laws affecting immigrants.

Steven Fazzi received his Bachelor of Arts and Master's of Arts degrees in Communication Studies from California State University, where he also worked as a graduate assistant. At McGeorge School of Law, Fazzi has studied abroad in Antigua, Guatemala and Salzburg, Austria.

Suggested citation: Steven Fazzi, Federal Law Preempts Only Two Provisions of Arizona Immigration Law, JURIST - Dateline, Apr. 25, 2012, http://jurist.org/dateline/2012/04/steven-fazzi-immigration-arizona.php.



This article was prepared for publication by Elizabeth Imbarlina, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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