Supreme Court To Rule On Constitutionality Of Arizona Immigration Law

In the Spring of 2010, Arizona passed an immigration bill, that among other things, gave police in the state the duty to check on the immigration status of anyone suspected of being in the United States illegally. The bill sparked controversy nationwide, as well as a negative reaction from the Hispanic groups, and even Republican politicians like Marco Rubio. Immediately after the law went into effect, the Justice Department filed suit alleging that the law was an unconstitutional intrusion into an area that is already regulated by Congress, an thus trumped by the Supremacy Clause. The Federal Government won its arguments at the District Court and Court of Appeals level, and now the case has become yet another politically charged case that the Supreme Court will hear this year:

WASHINGTON — The Supreme Court on Monday agreed to decide whether Arizona may impose tough anti-immigration measures. Among them, in a law enacted last year, is a requirement that the police there question people they stop about their immigration status.

The Obama administration challenged parts of the law in court, saying that it could not be reconciled with federal immigration laws and policies. The United States Court of Appeals for the Ninth Circuit, in San Francisco, blocked enforcement of parts of the law in April.

The administration challenged four provisions. The most prominent was a requirement that state law enforcement officials determine the immigration status of anyone they stop or arrest if officials have reason to believe that the individual might be an illegal immigrant. The provision also requires that the immigration status of people who are arrested be determined before they are released.

The law also makes it a crime under state law for aliens to fail to register under a federal one. In a brief urging the Supreme Court not to hear the case, Donald B. Verrilli Jr., the United States solicitor general, said this provision created a state “crime of being unlawfully present in the United States.”

The third challenged provision makes it a crime for illegal immigrants to work or try find work. Federal law subjects businesses that hire illegal workers to criminal punishment but imposes only civil penalties on the workers themselves.

The Arizona law also allows the police to arrest people without warrants if they have probable cause to believe that suspects have done things that would make them deportable under federal law.

The Ninth Circuit blocked all four provisions.

The Constitution gives Congress the power “to establish an uniform rule of naturalization.”

Mr. Verrilli told the justices that the Arizona law upsets a delicate balance that includes “law enforcement priorities, foreign-relations considerations and humanitarian concerns.”

In urging the court to hear the case, Arizona v. United States, No. 11-182, Paul D. Clement, representing Arizona, said the state law did not conflict with but, rather, complemented federal policies. The Ninth Circuit’s decision, Mr. Clement told the justices, had “completely foreclosed Arizona’s effort to address the disproportionate impact of unlawful immigration in a state with a 370-mile border with Mexico.”

Interestingly, it was announced this morning Justice Kagan took no part in consideration of the appeal, and will not rule on the merits of the case. Presumably, this would be because she was involved in consideration of the matter, and strategy discussions for litigation, when the law was first challenged by the Department of Justice.

Given the fact that the Arizona law served as the blueprint for similar laws in Georgia, Alabama, and other jurisdictions, all of which are presently the subject of similar Federal Court challenges, this case is likely to be watched closely by all sides. Interestingly, as with the Court’s consideration of the challenges to the Affordable Care Act, this case will also likely result in a decision being released in late June just before the Presidential campaign starts hearing up.

FILED UNDER: Borders and Immigration, Law and the Courts, Policing, US Politics, , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. ponce says:

    Any predictions on how this will be decided?

  2. Unless the Court is inclined to overturn several important precedents on the Supremacy Clause, I’ve got to think the District Court and Court of Appeals decisions will be upheld

  3. legion says:

    IANAL, but it seems pretty straightforward, technically… States flatly don’t have this authority. Period. They can reference federal agencies, etc, when running IDs for other reasons, but they can no more take over enforcement of immigration laws than they can negotiate their own treaties with other nations.

  4. ponce says:

    So passing this law was just political theater?

  5. Tsar Nicholas says:

    There is a difference between normal federal preemption and “occupying the field” federal preemption. Arizona is not endeavoring to enact its own naturalization process. So you could make a creditable argument that this law is not preempted. At least it’s debatable.

    That said, however, putting aside the legal technicalities, it’s a bad idea. We don’t need a crazy quilt of disparate laws regarding immigration status and related items. There’s also the impact of the law of unintended consequences, which consumers in places like Alabama and Georgia are learning the hard way, through inflation for local goods and services.

  6. The provision also requires that the immigration status of people who are arrested be determined before they are released.

    This particular provision seems to violate the fourth ammendment. Normally to arrest me for violating some crime, the burden is on the police to show they have probable cause to believe I commited it, not on me to prove that I did not. However, under this law, If someone is originally detained on suspicion of crime A, but later cleared, they can still be held for crime B even if there was not sufficient cause to detain them for B to begin with.

  7. PD Shaw says:

    @Tsar Nicholas: I agree, the Congress can preclude state action here, but the statute in question is either too vague or contemplates some sort of federal/state cooperation. If the states are interfering with the feds doing their job, then Congress should and can act.

    That said, as I recall, there was one provision that went too far in contemplating state citizenship, which Alabama or some other state smartly avoided including.

  8. GD Kelly says:

    I see a state flooded with “ILLEGAL” immigrant issues that is trying to enforce a law that the federal government is failing to uphold… either the federal government needs to do their job – or thank those other states that are willing to do it for them… NOTE – these are people who are here ILLEGALLY … by being here ILLEGALLY they are already breaking the law… Aren’t states required to uphold the law of the land or do we expect our government to patrol our whole country?