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CCH® PAYROLL — 7/03/12

U.S. Sup. Ct. invalidates much of Arizona immigration law

Arizona’s S.B. 1070, enacted in 2010 to stem a growing tide of undocumented immigration into the state, is largely preempted by federal law, a divided U.S. Supreme Court held (Arizona v United States, Dkt No. 11-182, June 25, 2012, Kennedy, A). Among the state law’s provisions struck down by the High Court today was Sec. 5(C), which makes it a criminal misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in the state.

The Court refused to invalidate one of the law’s most controversial provisions, however: a directive that state and local law enforcement must, in some circumstances, verify an individual’s immigration status with the federal government when conducting a detention or arrest. The Court found it was improper to enjoin this part of the law, Sec. 2(B), before state courts had an opportunity to construe it and without some showing that the measure as enforced did in fact conflict with federal immigration law and its objectives. On this issue, the High Court was unanimous. (Justice Kagan did not participate in the decision.)

Comprehensive framework

Section 5(C) of the Arizona immigration law imposes a criminal prohibition where no federal counterpart exists, making it a misdemeanor under state law for an undocumented immigrant to seek or perform work in the state. The majority held this provision was preempted by the federal Immigration Reform and Control Act (IRCA). When there was no comprehensive federal program regulating the employment of unauthorized aliens, states had authority to pass their own laws on the subject. But when IRCA was enacted in 1986, Congress implemented a “comprehensive framework for ‘combating the employment of illegal aliens.’”

IRCA does not impose federal criminal sanctions on the employee side (i.e., on undocumented immigrants who seek or engage in unauthorized work). Under federal law, civil penalties are imposed instead. The legislative history of the statute underscores that Congress made a deliberate choice not to impose criminal penalties on undocumented immigrants who seek or engage in unauthorized employment, according to the majority. “IRCA’s framework reflects 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.” S.B. 1070 serves as an obstacle to the federal plan of immigration regulation and control as embodied in IRCA.

Although IRCA’s express preemption provision is silent about whether additional penalties may be imposed against employees themselves for violations of immigration law, the ordinary working of conflict preemption principles nonetheless apply to bar Sec. 5(C) because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” While this state law measure seeks to achieve one of the same goals as federal law—the deterrence of unlawful employment—“it involves a conflict in the method of enforcement,” the majority explained, and thus was preempted by federal law.

Justices Scalia, Thomas, and Alito dissented on this issue in separately authored opinions.

Impact

Arizona Governor Jan Brewer signed S.B. 1070 into law in April 2010, and the U.S. Justice Department filed a lawsuit challenging the statute. In July 2010, a federal court allowed key provisions of the law to be enacted but granted the Obama administration an injunction on other provisions until the court could determine whether they were constitutional. In April 2011, the Ninth Circuit affirmed the district court's preliminary injunction. Brewer filed an appeal with the Supreme Court, asking it to overturn the Ninth Circuit ruling. The U.S. Supreme Court granted certiorari in December 2011.

S.B. 1070 has been a source of contention since enacted. Although the federal government had moved quickly to enjoin the statute, it served as the model for several other states that enacted similar measures, including Alabama, Georgia, and South Carolina. The Justice Department has already filed suit against those three states, and the fate of those statutes may turn on today’s ruling. A number of state attorneys general filed amicus briefs with the High Court in support of Arizona; on the other hand, nearly a dozen states lined up on the federal government’s side.

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