Today at the Supreme Court: Can a State Create Its Own Immigration System?

Supreme Court

Earlier today the United States Supreme Court heard arguments regarding the constitutionality of Arizona’s notorious state-level immigration enforcement law, S.B. 1070, in Arizona v. United States.  Yesterday we described the socially toxic and economically self-defeating outcomes that have resulted from Arizona-style laws. Today, we will outline the legal arguments of the case, in which the U.S. government is challenging a state’s ability to enact its own immigration enforcement system instead of following federal regulations.

What is this case about?

Immigration policy has historically been a federal responsibility – and with good reason: a confusing patchwork of 50 different immigration systems is not in the country’s best interests. Legally, the arguments underlying this case rely on the constitutional doctrine of preemption.  This principle is rooted in the Supremacy Clause, located in Article VI, clause 2 of the Constitution, which provides that the “Constitution, and the Laws of the United States which . . . shall be the supreme Law of the Land . . . ” In essence, this means that there are some areas of law that are controlled by the federal government because they have national implications. In those areas, states cannot pass laws that conflict with federal law or interfere with policies that have national considerations.

What provisions of Arizona’s law will the Supreme Court examine?

The four provisions at issue are:

  • Section 2: the “Show me your papers” provision. This section requires local police officers to check the immigration status of every person stopped or arrested if there is “reasonable suspicion” that the person is “unlawfully present in the United States.”
  • Section 3: criminalizes the failure to carry immigration documents.
  • Section 5: criminalizes “unauthorized” work when an undocumented person either searches for or actually works in the state.
  • Section 6: permits warrantless arrests if a police officer has “probable cause” to infer that an individual is deportable under federal law.


The state of Arizona argues that S.B. 1070 complements federal law and encourages “cooperative enforcement of federal immigration laws” consistent with federal enforcement priorities.

Conversely, the U.S. government asserts that the Constitution vests the federal government with exclusive authority to handle matters related to immigration and that the Supreme Court has repeatedly recognized this authority because of the importance of having a coherent and unified national immigration policy.

The government contends that instead of being a model of cooperation, SB 1070 goes beyond this and impermissibly conflicts with federal immigration law and federal enforcement priorities in several ways. Where Congress has prioritized enforcement resources to deport those who have been convicted of serious crimes, Arizona’s law would require Homeland Security to respond to every Arizona police call to verify the immigration status of any person who is stopped – even for something as simple as jaywalking.  Furthermore, Arizona’s law creates new criminal penalties (for mere work or presence) that exceed and confuse the federal scheme, and Arizona’s “show me your papers provision” would effectively require everyone – including citizens – to carry documents proving their immigration status. As a result, the four provisions of Arizona’s law displace the federal government’s exclusive authority over immigration, making it more difficult for the government to carry out a coherent immigration policy.

The absence of federal direction and control over immigration would result in a perplexing patchwork of 50 different state immigration laws – with problematic outcomes for us all.  We hope the Supreme Court recognizes, as it has done in the past, that the United States must speak with one voice when it comes to regulating immigration law and policy.

The Supreme Court is expected to issue a decision before the end of June. Note that this case does not address all legal challenges to the Arizona law and other similar laws. Other cases related to the law’s discriminatory effect and other issues are still pending in lower courts.

For more about how Arizona’s law is unconstitutional, please read these excellent reports from the National Immigration Law Center and the Center for American Progress.  If you would like to read any of the briefs and documents associated with this case, SCOTUSblog is an excellent resource.

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