Furor over Arizona’s passage of “SB 1070”

Arizona v. United States (2012) 132 S. Ct. 2492; 183 L. Ed. 2d 351; 2012 U.S. LEXIS 4872
There was much furor over Arizona’s passage of “SB 1070”, which was heard and
decided by the US Supreme Court in 2012. The following is a synopsis of the case, which we did
not have me to discuss in lecture.
The Arizona legislature passed S.B. 1070 in 2010, and Governor Jan Brewer signed the
bill into law on April 23rd
of that year. The federal government filed an acon in July seeking to
enjoin (legally halt) the enforcement of that law. The statute would have done the following: 1)
created an Arizona state-law crime of being unlawfully present in the United States; 2) created
a state-law crime for working or seeking work when not authorized by one’s immigraon status
to do so; 3) require state and local officers to verify the cizenship or alien status of anyone
who was lawfully arrested or detained, and 4) authorized warrantless arrests of aliens believed
to be removable from the United States.
The District Court (trial court) and the U.S. Court of Appeals for the Ninth Circuit
enjoined the state from enforcing the statute, finding that it was likely, in all respects, to be
preempted by federal law. The U.S. Supreme Court affirmed in part and reversed in part. It
held that provision 1 conflicted with the federal alien registraon requirements and
enforcement provisions in place in federal statutes. The court found that provision 2 is
preempted because its method of enforcement interferes with the careful balance Congress
struck with federal laws regarding unauthorized employment of aliens. Provision 4 was
preempted because it usurps the federal government’s authority to use discreon in the
removal process, which creates an obstacle to carrying out the purposes and objecves of
federal immigraon laws.
The Supreme Court upheld provision 3 as constuonal on its face (the statute was not
yet implemented). The court held that this provision merely allows state law enforcement
officials to communicate with ICE officials regarding persons otherwise lawfully arrested. The
statute, on its face, contains three limitaons that protect individual rights. First, one detained
by law enforcement is presumed not to be an illegal alien if the person has a valid Arizona
Driver’s License. Second, an officer may not consider race, color, or naonal origin during an
ICE check. Third, the check must be implemented in a manner consistent with federal law. The
court leaves open the opportunity to challenge the validity of the law on an “as applied” basis.
One could argue that the statute does nothing more than allow what is authorized
under pre-exisng law. In fact, the law may be more restricve in a sense, since Brignoni-Ponce
allows “Mexican appearance” to be a factor in a detenon circumstance. The court, in this
case, reaffirms the Plenary Powers Doctrine, and applies the preempon principle to vacate the
major parts of the Arizona statute, much as you have seen in other cases we have studied. The
court broke no new ground, and reaffirmed principles you have been exposed to in your case
and trease readings.