rior to the passage of SB 1070, Arizona was the subject of an entirely different legal challenge involving illegal immigration, namely the legitimacy of the Legal Arizona Workers Act
(LAWA). The law took effect in January 2008 and imposed sanctions on employers that utilized undocumented immigrants as part of their workforce. The novelty of the controversy is that the case, Chamber of Commerce v. Whiting
, implicated similar issues of preemption doctrine when it was argued
before the US Supreme Court in April 2011. Although LAWA was ultimately upheld
as excluded from federal preemption because it was a licensing statute pursuant to the Immigration Control and Reform Act of 1986
, the result in the current controversy is much more complex and uncertain.
The Supremacy Clause
The legal debate over SB 1070 concerned the ability of Arizona to create strict immigration reforms, despite the federal government traditionally holding sole constitutional power to set immigration law. The key constitutional language at issue was the Supremacy Clause, Article VI, Clause 2, which states that in all cases where there is a contradiction between federal and state law, the courts must enforce the federal law:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
SB 1070 contains several provisions which implicate the potential application of this preemption doctrine. The key provisions contested gave state law enforcement permission to determine the immigration status of any individual who arouses "reasonable suspicion," criminalized the hiring of undocumented immigrants for day labor, and allowed citizens to sue local governments if they believed the policy was not being enforced properly. The federal government argued that these provisions were unenforceable because federal law preempts them, whereas proponents of SB 1070 and Arizona officials countered that the provisions amounted to concurrent enforcement of federal laws already in place.
This argument of concurrent enforcement has been touted by Brewer as the primary motivation behind the law's adoption. On February 6, 2012, Brewer filed a brief with the US Supreme Court asking that the Ninth Circuit's injunction be lifted as soon as possible, arguing that there is an urgent need for such state law enforcement capacities:
The result [of lax federal enforcement] has been the funneling of an increasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the nation's illegal border crossings occurred in Arizona. ... This flood of unlawful cross-border traffic, and the accompanying influx of illegal drugs, dangerous criminals and highly vulnerable persons, have resulted in massive problems for Arizona's citizens and government, leaving them to bear a seriously disproportionate share of the burden of an already urgent national problem.
Some have claimed that Supreme Court precedent under De Canas v. Bica
support this interpretation. However, legal challenges to SB 1070 maintained that the issue of preemption should have led the Supreme Court to strike the entire law down as unconstitutional a view clearly stated by the DOJ lawsuit filed in July 2010: "The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country."
Legal scholars have also spoken out against the bill due to its potential for inflicting unnecessary costs on municipalities. JURIST Guest Columnist Marjorie Cohn argues that, in addition to running afoul of preemption doctrine, the costs of enforcing SB 1070 will quickly eclipse its potential benefits:
By establishing a separate state crime for anyone who violates federal immigration law, the new Arizona law contravenes the Supremacy Clause of the Constitution, which grants the federal government exclusive power to regulate U.S. borders ... SB 1070 creates a cause of action for any person to sue a city, town or county if he or she feels the police are not stopping enough undocumented immigrants. Even if a municipality is innocent, it will still be forced to rack up exorbitant legal fees to defend itself against frivolous lawsuits.
The First Amendment
SB 1070 has also implicated the First Amendment through legal challenges specifically seeking to strike down portions of SB 1070 that target day laborers and employers. Filed in January 2011, the petition alleged that the provisions of SB 1070 which prevent employers from soliciting day laborers should be struck down for infringing on constitutional protections for commercial speech. Following the law's passage, Brewer contended that the portions of the legislation related to day laborers was a "necessary traffic safety measure" meant to address the compelling government interest of traffic safety. However, the plaintiffs of the lawsuit claimed that the law's effect was directed at limiting speech, not promoting safety on the roads:
The First Amendment guarantees all members of society the right to free expression. Solicitation speech is expression entitled to full protection under the First Amendment. Sections 13-2928 (A) and (B) of the Arizona Revised Statutes are content-based speech restrictions because they impose statewide criminal liability on motorists and individuals based on individuals' employment solicitation speech.
In March 2012, the US District Court for the District of Arizona issued
a preliminary injunction preventing the enforcement of the provisions of SB 1070 dealing with day laborers, citing a potential violation of the First Amendment:
The Court finds that [Arizona has] not shown that [the] content-based restrictions of speech are drawn to achieve the substantial governmental interest in traffic safety. As an initial matter, because the regulation is content-based and applies only to solicitation of employment, not other types of solicitation, it appears to be structured to target particular speech rather than a broader traffic problem. The adoption of a content-based ban on speech indicates that the legislature did not draft these provisions after careful evaluation of the burden on free speech.
The US Court of Appeals for the Ninth Circuit issued an opinion [PDF] affirming the preliminary injunction preventing enforcement of the day laborer provision in March 2013.
Corollary to these arguments is the prevalent concern that SB 1070 will lead to racial discrimination by law enforcement. A brief filed by the Mexican American Legal Defense and Education Fund (MALDEF) and the National Coalition of Latino Christian Clergy contends that the bill opens up the possibility of racial discrimination by creating a set of immigration laws separate from the federal government:
One significant measure of SB 1070's patent illegality is that it seeks to implement Arizona's own scheme of immigration regulation separate and in conflict with federal government policy when our Constitution envisions a unified nation under one federal set of immigration regulations to be adopted by Congress and implemented by the President. By rejecting that constitutional plan, Arizona's enactment of SB 1070 is tantamount to a declaration of secession. In response, the federal government must act to preserve our united nation by clearly stating that it will not cooperate in any way with the implementation of SB 1070 that it will not adjust or alter its immigration enforcement priorities to the detriment of other states simply to accommodate Arizona's most recent exercise in racial demagoguery.
However, scholars have expressed the fear that SB 1070's discriminatory effect has already been felt. JURIST Forum Guest Columnist David Harris
has argued that SB 1070 operates as a thinly veiled attempt to legislate racial discrimination:
The Supreme Court will answer whether the federal law on immigration "preempts" a state from regulating immigration. But in reality, the case is about something else: whether state law in the US can be used to force police to act on the basis of racial or ethnic appearance. ... We should begin with a clear understanding of the goal of the Arizona law, which is not to assure compliance with the federal immigration law. Rather, it is to intimidate and cause fear among Latino people. The idea is to use this fear to terrify and to disturb the Latino population enough that they leave Arizona. This is what the leading Republican candidate for president this year euphemistically called "self-deportation." The drafters of the law were much more blunt. What they wanted was stated in the law itself: "attrition through enforcement." In other words, by enforcing, or threatening to enforce, the provision of the Arizona law, they hoped to push out people they do not want.