The Supreme Court of the United States in Arizona v. United States, 587 U.S. 387 (2012), declared unconstitutional most provisions of Arizona’s controversial S.B. 1070, the Support Our Law Enforcement and Safe Neighbors Act of 2010. A combination of frustrations at federal failures to pass comprehensive immigration reform, anti-illegal immigrant sentiments and, in some cases, anti-immigrant prejudice led Arizonians to take immigration law into their hands. S.B. 1070 punished persons who failed to comply with federal alien registration requirements and prohibited illegal aliens from being employed in the state. The law permitted police officers to make warrantless arrests of any persons they believed were illegally in the United States and required officers who had such suspicions to determine a person’s immigration status. The state sponsors of the law claimed that states had a right to assist federal immigration efforts and to prevent illegal aliens from residing in their jurisdictions. Opponents insisted questions of illegal immigration were for the federal government to resolve and that several provisions in S.B. 1070 would promote racial profiling. Shortly after the law was passed, the United States successfully asked the local federal district court to issue an injunction preventing state officials from implementing S.B. 1070. When that decision was sustained by the Court of Appeals for the Ninth Circuit, Arizona appealed to the Supreme Court of the United States.
A five justice majority composed of Chief Justice John Roberts, Justice Anthony Kennedy, Justice Ruth Bader Ginsburg, Justice Stephen Breyer and Justice Sonia Sotomajor declared the registration, employment and warrantless arrest provisions of S.B. 1070 unconstitutional (Justice Kagan did not participate because she had participated in the litigation effort when a member of the Obama administration). Justice Kennedy’s majority opinion ruled that these provisions of state law were preempted by federal immigration law. States could not provide additional penalties for illegal immigrants who violated federal registration laws, Kennedy concluded, because “(w)hen Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.” His opinion maintained that Congress had made a deliberate decision when regulating illegal aliens not to punish illegal aliens for seeking work. Kennedy stated, Congress made “a considered judgment that making criminals out of aliens engaged in unauthorized work—aliens who already face the possibility of employer exploitation because of their removable status—would be inconsistent with federal policy and objectives.” Finally, the majority determined that state officials could not make warrantless arrests of persons suspected of being illegal aliens because whether an illegal alien should be deported is a decision that should be made by the federal government. States, Kennedy maintained, may not “achieve [their] own immigration policy.” The majority did, however, declare that state police officers could check to see whether a detained person was legally in the United States, provided the police office had other constitutional reasons for detaining the person in question.
Justice Antonin Scalia issued a strong dissent. In his view, the issue was the “defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.” The federal government, in his view, had no power to dictate to states what they should do with people federal law declared had no right to be in the United States. Justice Clarence Thomas agreed with Scalia’s conclusions but solely because he believed S.B. 1070 was consistent with federal law. Justice Samuel Alito maintained the registration and employment provisions of S.B. 1070 were preempted, but not the other provisions.
Arizona v. United States highlights how illegal immigration policy and immigration policy more generally crosscuts the Republican Party. While the Democratic appointees on the court were united in striking down major provisions of the law, the Republican appointees were divided. The more moderate Republicans on (and off) the Court insisted that illegal immigration is a problem for the national government, not the states. The more conservative justices clearly supported immediate state action. While Arizona v. United States is presently the law of the land, the Scalia dissent suggests that the decision may not survive a Trump presidency or a Trump Court.