Today, The United States Supreme Court issued a decision in Arizona v. U.S., upholding the most controversial provision of Arizona’s S.B. 1070 immigration law, which requires local law enforcement to make a reasonable attempt to determine the immigration status of a person during a stop, detention, or arrest if there is reasonable suspicion the person is an alien and unlawfully present in the United States. Justice Kennedy’s 5 — 3 opinion (Justice Kagan abstaining) affirmed a lower court decision finding three other provisions of the law unconstitutional. The decision is a setback to civil libertarians who fear the provision will result in racial profiling. The matter will undoubtedly be revisited by the Supreme Court, which held that it was too soon to enjoin the provision without further construction by state courts and a showing of conflict with federal law. The case concerns a challenge by the Federal government of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (commonly referred to as “S.B. 1070â€). A lower court ruling enjoined four provisions of the law. The most controversial of those provisions was Section 2(B), which requires state officers to make a “reasonable attempt . . . to determine the immigration status†of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.†The law is subject to three limitations: 1) a presumption that a detainee is not unlawful if she presents a valid Arizona driver’s license or similar identification; 2) a prohibition on the use of “race, color or national origin . . . except to the extent permitted by†law; and 3) 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. The Court reversed the lower court decision and found the provision did not conflict with federal immigration framework. To the contrary, the Court found the provisions supported by federal immigration law. The Court noted Section 287(g) of the Immigration and Nationality Act provides for local law enforcement to communicate with the Federal government regarding the immigration status of any person. The Court noted Congress obligates the Federal government to respond to any request made by local law enforcement for verification of a person’s citizenship or immigration status. The Court cited ICE’s Law Enforcement Support Center as an example of the framework. The Center operates “24 hours a day, seven days a week, 365 days a year†and provides “immigration status, identity information and real-time assistance to local, state and federal law enforcement agencies.†The Court also upheld a challenge to another part of Section 2(B) which requires the immigration status of any person arrested to be determined before release. The Court found that under current findings the law does not impermissibly result in the prolonged detention of persons. The Court expressly held open future challenges to the provision. It stated, the “opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.†The Court noted the Federal government brought the challenge before the law went into effect. The Court provided it would be improper to enjoin the section before a state court has the opportunity to construe the law in a way that would conflict with federal law. The Court affirmed a lower court’s decision to enjoin and find unconstitutional three other sections of S.B. 1070. The Court found that Section 3 of the law, which makes it an Arizona state misdemeanor to fail to comply with the federal alien-registration requirement, was an impermissible intrusion on the field alien registration and preempted by federal law. Similarly, Section 5(C), which makes it an Arizona state misdemeanor for an unauthorized alien to seek or engage in work in the State, was preempted as an obstacle to the federal immigration system. Section 6, which allows local officers to make warrantless arrests of aliens suspected as being removable, was also found preempted as an obstacle to the federal immigration system. The Court importantly recognized the Federal government’s authority to exercise discretion in the enforcement of removal laws against aliens, noting the government’s possible choice to prioritize the removal of a smuggler or criminal alien above unauthorized workers trying to support their families. The Court did not address the possibility that Section 2(B) would result in racial profiling. The decision represents a setback to civil libertarians who fear the provisions will result in racial profiling by local law enforcement officials against those who are stereotyped as being foreign, such as Hispanics and others who may not be of European ancestry. Related Links Arizona v. U.S., No. 11–182, slip op. (Jun. 25, 2012).
