Siskind Susser’s Guide to Arizona et al. v. United States
By a 5 to 3 majority, with Justice Kagan’s recusal, the U.S. Supreme Court overturned three
of the four disputed provisions of the Arizona immigration enforcement law, commonly
known as S.B. 1070.
The Court reasserted the federal government's broad powers over the immigration laws,
based on the constitutional power to establish a uniform rule of Naturalization and its
inherent power as sovereign to control and conduct relations with foreign nations. The
Court also reasserted the United States system of federalism, as well as the principle of
federal preemption of state law, based upon the Supremacy Clause.
How did we get here? (Procedural Posture)
In 2010, Arizona enacted a statute called the Support Our Law Enforcement and Safe
Neighborhoods Act (i.e. S.B. 1070).
The United States brought suit against Arizona, seeking to enjoin S.B. 1070 as preempted.
The following four provisions of the law were at issue in this case: Section 3, Section 5(C),
Section 6, and Section 2(B).
The United States District Court for the District of Arizona issued a preliminary injunction
preventing the four provisions at issue from taking effect. The Court of Appeals for the
Ninth Circuit affirmed. The United States Supreme Court granted certiorari.
What was the Court addressing? (Issue)
The issue in this case was "whether federal law preempts and renders invalid four separate
provisions of the state law." The issue is also similarly stated as "whether, under
preemption principles, federal law permits Arizona to implement the state-law provisions in
dispute." The Supreme Court addressed in turn each of the disputed provisions of S.B.
1070 to determine whether federal law preempts the provisions.
What did the Court say? (Analysis)
Section 3 makes failure to comply with federal alien-registration requirements a state
misdemeanor. Specifically, it provides that "a person is guilty of willful failure to complete
or carry an alien registration document if the person is in violation of 8 United States Code
Section 1304(e) or 1306(a)." This section does not apply to a person who is authorized by
the federal government to remain in the U.S.
The Court concluded that Section 3 is preempted by federal law and addressed the principle
of field preemption in reaching this conclusion. Field preemption is one means by which
federal law can be found to preempt state law, and it provides that "States may not enter,
in any respect, an area the Federal Government has reserved for itself." Such intent to
preempt can be inferred from a framework of federal regulation so pervasive that Congress
has left no room for state supplementation.
The Court cited Hines v. Davidowitz, 312 U.S. 52, a 1941 U.S. Supreme Court case, which
held that Pennsylvania could not enforce its own alien-registration program. The 1940s
marked the origins of the current federal alien registration requirements. In the Hines case,
the Court found the federal registration plan to be a "single integrated and all-embracing
system," which did not allow state intervention. While the current federal alien registration
system has changed somewhat since the 1940s, the Court determined that it is still a
"harmonious whole" governing registration and even providing penalties for noncompliance.
Apart from field preemption, the Court noted that the specific conflicts between federal and
state penalties for noncompliance "simply underscore the reason for field preemption."
Section 5(C) makes it a misdemeanor for an unauthorized alien to seek or engage in work in
the state. Specifically, "[i]t is unlawful for a person who is unlawfully present in the United
States 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."
The Court concluded that Section 5(C) is preempted, because it conflicts with federal law by
"stand[ing] as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress." Whereas, under De Canas v. Bica, 424 U.S. 351 (1976), states
previously had the authority to pass their own laws regulating the employment of
unauthorized aliens, this all changed with the implementation by Congress of the
Immigration Reform and Control Act of 1986 (IRCA). IRCA was presented as a
comprehensive framework to combat the employment of illegal aliens, and the law was
focused on penalizing the employer, rather than the employee.
The Court determined that "Congress made a deliberate choice not to impose criminal
penalties on aliens who seek, or engage in, unauthorized employment." IRCA struck this
balance due to concerns that criminalizing aliens engaged in unauthorized work would be
inconsistent with federal policy due to the possibility of employer exploitation that aliens
already face. The Court concluded that this careful balance would be disrupted by state law
implementing criminal penalties on aliens.
Section 6 authorizes state officers to arrest without a warrant a person "the officer has
probable cause to believe . . . has committed any public offense that makes the person
removable from the United States."
The Court concluded that Section 6 is preempted, because it conflicts with federal law by
"stand[ing] as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress." Congress set up a federal statutory structure to inform when it is
appropriate to arrest an alien during the removal process. Where no federal warrant has
been issued, the federal immigration officers have more limited authority. The Court noted
that "Section 6 attempts to provide state officers even greater authority to arrest aliens on
the basis of possible removability than Congress has given to trained federal immigration
Federal law does allow for limited circumstances in which state officers may perform the
functions of an immigration officer. This includes the 287(g) program, whereby the federal
government may grant said authority to specific officers in a formal agreement with state or
local government. However, these limited circumstances provide for the federal
government's supervision and discretion. Thus, the Court propounded, "Congress has put in
place a system in which state officers may not make warrantless arrests of aliens based on
possible removability except in specific, limited circumstances." In noting that Section 6
nonetheless authorizes state officers to operate outside these limited circumstances and the
federal government's supervision, the Court also found that Section 6 goes beyond the
general statute at 8 U.S.C. 1357(g)(10)(B) allowing state officers to cooperate with the
federal government in immigration enforcement activities.
Section 2(B) provides that for any lawful stop, detention, or arrest made by a state officer,
"where reasonable suspicion exists that the person is an alien and is unlawfully present in
the United States, a reasonable attempt shall be made, when practicable, to determine the
immigration status of the person."
The Court concluded that it is too soon to enjoin Section 2(B) as preempted by federal law.
As determined by the Court, since Section 2(B) may fairly be construed in such a way as to
avoid doubtful constitutional questions, this section has not yet gone into effect, there is a
basic uncertainty as to the meaning of this section and the means of enforcement, and it is
"inappropriate to assume [Section 2(B)] will be construed in a way that creates a conflict
with federal law."
The Court was not persuaded by the federal government's argument that the mandatory
nature of the status checks and the possibility of prolonged detention during status
verification posed obstacles to Congress's immigration framework. First, under 8 U.S.C.
1357(g)(10)(A), communication between federal and state officials regarding immigration
status is encouraged even in the absence of any formal agreement. Further, Congress has
obligated Immigration and Customs Enforcement (ICE) to respond to any immigration
status requests made by state officials. Congress has placed no limits upon this
communication even where a state requires its officers to make contact or where state
officers make contact without considering federal enforcement priorities. Thus, the Court
found that Congress "leaves room for a policy requiring state officials to contact ICE as a
Second, while the Court acknowledged the constitutional concerns raised by detaining
individuals solely to verify their immigration status, it noted that Section 2(B) can be read to
avoid this concern based on the "reasonable attempt" language. The Court acknowledged
that if Section 2(B) only requires state officers to check immigration status during the
course of a lawful detention or after release, "the provision likely would survive preemption-
-at least absent some showing that it has other consequences that are adverse to federal
law and its objectives."
Finally, the Court did state that it was not foreclosing other preemption and constitutional
challenges to Section 2(B) as interpreted and applied after it goes into effect.
What did the Court decide? (Conclusion)
The Court found that the federal government had established that Sections 3, 5(C), and 6 of
S.B. 1070 are preempted. Section 2(B), however, is still a valid provision due to the fact
that state courts have not yet had an opportunity to construe the provision, and there is no
showing of conflict between that section and federal law. The judgment of the Court of
Appeals for the Ninth Circuit was affirmed in part and reversed in part. The case was
remanded for further proceedings consistent with the opinion of the Court.
(What about the three justices who disagreed?) Joint concurrences and dissents
Justice Scalia provided a dissenting opinion of the Court’s decision, upholding most of the
provisions of the Arizona law. He stated that since the United States is “an indivisible union
of sovereign states,” the Ninth Circuit’s injunction deprives Arizona of what he considered a
“defining characteristic of sovereignty: the right to exclude people from a sovereign territory
who have no right to be there.” Justice Scalia asserted that this right is a “natural” right,
included in the sovereignty of states before the adoption of the Constitution and after, as
the Constitution did not strip states’ authority but enabled them to prevent the intrusion of
certain individuals. While the establishment of a uniform rule of naturalization solved the
issue of varying state citizenship, Justice Scalia argued that the states’ sovereign interest in
protecting its borders was still recognized.
In response to the constitutionality of Section 2(B), Justice Scalia suggested that it is
impossible to determine, in this case, whether the state’s laws stand as an obstacle to
federal law without a factual record detailing the manner in which Arizona implements its
provisions. Judge Scalia stated that “the Court therefore properly rejects the Government’s
challenge, recognizing without definitive interpretation from state courts, it would be
inappropriate to assume that 2(B) will be construed in a way that creates conflict with the
Justice Thomas and Justice Alito concurred with Justice Scalia by stating that there was no
conflict in interpretation between federal and Arizona state law. Justice Alito wrote, “the
provision does not authorize or require Arizona law enforcement officers to do anything they
are not already allowed to do under existing federal law.”
In response to the overturned sections, the Justices varied in opinion. While Justice Scalia
and Justice Thomas agreed that Sections 3, 6, and 5(C) were not preempted by federal law,
Justice Alito disagreed. Judge Alito agreed with the Court in that Section 3 is preempted by
virtue of Hines v. Davidowitz, asserting that the court’s decision in that case enacted an “all
embracing system of immigrant registration” and that the State could not enforce additional
regulations. On the other hand, Justice Thomas asserted that the fact Congress created a
“full set of standards governing alien registration” indicates that they intended for the policy
to work on its own and not as a means of excluding States from enforcing those standards.
Justices Thomas, Alito and Scalia agreed on the remaining provisions. Justice Alito stated
that the Court’s holding of 5(C) was inconsistent with De Canas v. Bica (1976) which upheld
that employment regulation, even of illegal immigrants, is a state concern. Justice Thomas
added that nothing in federal immigration laws prohibit states from their own criminal
penalties; however, federal law expressly blocks states from “imposing civil or criminal
sanctions” on those who employ unauthorized immigrants. Yet, it leaves states free to
impose criminal sanctions on employees themselves.