Quick Review of SB 1070 Decision Day!

Yesterday was an exciting day! The Supreme Court decided Arizona v. United States, after granting a review of a writ of certiorari. You can read the full slip opinion here. The Outcome of the Provisions in SB1070 The Supreme Court was asked to review four primary provisions of S.B. 1070. Section 2(B) was upheld to be constitutional while three other sections (3, 5(C) and 6) were struck down as having been preempted by the Supremacy Clause.

Section 2(B): “Show Me Your Papers” provision that required state law enforcement officials to check a detained person’s immigration status during a stop, if there is reasonable suspicion that person is an undocumented alien. This provision was upheld by the Court on these conditions:

First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification.”

Second, officers “may not consider race, color or national origin … except to the extent permitted by the United States [and] Arizona Constitution[s].”

Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”

Section 3: made it a state misdemeanor offense for failing to register with the state as an unlawful alien. This provision was held to have been preempted by federal law based on exclusive jurisdiction by the federal government.

Section 5(C): made it a state criminal misdemeanor for an unlawful alien to seek or engage in work. This provision was held to have been preempted by federal law for its interference with federal immigration statutes.

Section 6: “authorize[d] 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.’” This provision was held to have been preempted by federal law because it interfered with the federal government’s authority to determine which aliens to place into removal proceedings.

The Takeaways for Immigration Practitioners and Global Employers Having heard the oral arguments earlier in the year, I wasn’t so sure the federal government was succeeding in convincing the Justices one way or the other (though I realize that most of the persuasion occurs via the appellate briefs). However, the Court has taken much of the bite out of the law, leaving a very contentious provision intact, Section 2(B). Most of the dicta I read in the decision was quite interesting as it appears the Court leaned heavily on the side of preemption in favor of the federal government:

• “Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae 24–30.”

• “Removal is a civil, not criminal, matter.”

• “As a general rule, it is not a crime for a removable alien to remain present in the United States.See INS v. Lopez.”

Although the issue of what kind of disparate impact Section 2(B) would have on certain minority groups in Arizona was not specifically at issue in this decision, it’s fairly obvious that groups on either side of the aisle will be watching closely to see how the law will be implemented and administered. Read the Takeaways for U.S. Employers here on our sister blog. What do you think the fallout will be with how Section 2(B) will be practically implemented? How quickly will lawsuits be filed once the law goes into effect? Send me your comments and queries.