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The constitutionality of S.B. 1070

The following is an essay for our symposium on Arizona v. United States by Richard Samp, Chief Counsel of the Washington Legal Foundation.  WLF is a public interest law firm, located in Washington, DC.  Mr. Samp has served as counsel of record for WLF in several federal court briefs filed by WLF in support of Arizona’s S.B. 1070, legislation adopted by the State to assist the federal government in enforcing the immigration laws.

Among the numerous state and local laws adopted to assist the federal government in enforcing the immigration laws, none has had a higher profile than Arizona’s S.B. 1070.  Those filing legal challenges to S.B. 1070 included the federal government itself, which argued that various provisions of S.B. 1070 conflict with (and thus are impliedly preempted by) federal immigration law.  The U.S. Court of Appeals for the Ninth Circuit agreed and in April upheld a preliminary injunction against enforcement of four principal provisions of the law.

Since then, the legal landscape was changed considerably by the Supreme Court’s May decision in Chamber of Commerce v. Whiting, which rejected a preemption challenge to an Arizona law that strictly regulates the employment of illegal aliens within the state.  That decision significantly increases the likelihood that the Supreme Court will agree to review the Ninth Circuit’s decision and will ultimately uphold major portions of S.B. 1070.

Although Whiting focused to a considerable extent on an express preemption statute that is inapplicable outside the context of employment issues, it also ruled that the Arizona employment statute was not impliedly preempted by federal immigration law.  The Court’s rationale for rejecting the implied preemption challenge undercuts arguments being raised by many of S.B. 1070’s opponents.


For example, opponents of the Arizona employment statute argued (as do opponents of S.B. 1070) that federal immigration law represents an effort by Congress to balance the need for law enforcement against the rights of those who would be the target of enforcement efforts.  They argued that the Arizona employment statute was impliedly preempted because it upset Congress’s carefully crafted balance.  Whiting rejected that argument, finding it inapplicable outside of “uniquely federal areas of regulation” and that the regulation of employment practices was not such an area.  Thus, to the extent that Arizona can legitimately claim an interest in the areas regulated by S.B. 1070, Whiting suggests that opponents of S.B. 1070 will not succeed on their upset-the-balance arguments.

Similarly, Whiting found it significant that Congress had explicitly authorized states to regulate employers through the states’ “licensing” powers.  The Court reasoned that in light of that authorization, “it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that power,” and thus that Congress should not be deemed to have barred states from imposing restrictions on the employment of illegal aliens.  That reasoning applies to S.B. 1070 as well.  Given that Congress has adopted numerous statutes encouraging states to assist with immigration law enforcement, Whiting undercuts the position of S.B. 1070 opponents that all state and local efforts to enforce the immigration laws are impliedly preempted.

So is S.B. 1070 likely to survive Supreme Court scrutiny?  That question requires separate examination of each of S.B. 1070’s major provisions.  If the Supreme Court agrees to hear the case, at least some of S.B. 1070 will likely survive a preemption challenge.  Other provisions present a much closer question.

The Ninth Circuit struck down four provisions of S.B. 1070.  Of those four, Section 5(C) is the most likely to survive.  Section 2(B) presents a closer question, but it too is likely to survive in light of Whiting.  Section 3 is by far the most problematic and could well be deemed preempted.  The meaning of the fourth provision to be struck down, Section 6, has been disputed by the parties.  Moreover, all agree that the scope of Section 6 is exceedingly narrow.  It would not be surprising, therefore, if the Court found a way to avoid deciding whether Section 6 is impliedly preempted.


Section 5(C)

Section 5(C) makes it a crime for illegal aliens to seek or perform employment within Arizona.  The Immigration Reform and Control Act of 1986 (IRCA) provides for sanctions against employers who hire an illegal alien without taking adequate steps to ensure that he is authorized to work, but IRCA is silent regarding whether an unauthorized employee can be sanctioned.  Based on that silence, the Ninth Circuit concluded that Section 5(C) is impliedly preempted because it upsets the balance struck by IRCA between enforcing the immigration laws and respecting the rights of illegal alien workers.  According to the appeals court, Congress determined that while illegal aliens are subject to deportation, they may not be sanctioned for attempting to work while in this country.

In light of Whiting, the Ninth Circuit’s analysis is no longer tenable.  Whiting explicitly rejected claims that in adopting IRCA, Congress intended to limit employment-related immigration enforcement to those measures explicitly provided for in IRCA.  If don’t-upset-the-balance arguments did not succeed in Whiting, it is difficult to see why they would fare any better in the context of S.B. 1070.  The Supreme Court has construed IRCA as demonstrating congressional intent to make “combating the employment of illegal aliens central to the policy of immigration law.”  An Arizona law imposing sanctions on illegal aliens who seek or perform employment cannot be deemed to conflict with that congressional policy.

Section 2(B)


Section 2(B) is an effort by Arizona to ascertain the immigration status of those who come into contact with the state’s legal system.  It requires law enforcement personnel to check with the federal government to determine the immigration status of anyone taken into the custody of the state, if they have a “reasonable suspicion” that the person in custody is an illegal alien.  The Ninth Circuit recognized that Congress has established programs designed to encourage local law enforcement personnel to work alongside federal officials in identifying and deporting illegal aliens.  But, the appeals court said, Congress intended to permit local officials to be involved in immigration enforcement only when working under the Attorney General’s close supervision.  It held that Section 2(B) was impliedly preempted by federal immigration law because it permitted local officials to engage in free-lance enforcement.

There is serious question whether the Ninth Circuit has accurately characterized Section 2(B).  It does not authorize Arizona officials to make any independent judgment regarding whether a detainee is an illegal alien.  Rather, if they have a “reasonable suspicion” regarding immigration status, and the detainee cannot produce documentation (such as a valid driver’s license) suggesting authorized status, then they are required to turn to the federal government for assistance – and to abide by whatever the federal government tells them.  Moreover, even if the federal government tells them that the detainee is an illegal alien, they can do no more than offer to surrender custody to the federal government.  If it declines to take custody, then local officials may not continue to hold the individual based on immigration status.  It is difficult to comprehend how such a system could be deemed to conflict with federal immigration law, particularly because Congress has explicitly authorized states to inquire about the immigration status of those in their custody, and has required immigration officials to provide a response.


The only plausible basis for implied preemption is the federal government’s assertion that the federal immigration system would be quickly overwhelmed if a large number of states began submitting a massive number of verification requests to federal officials.  It is reasonable to assume that Congress did not intend to permit states to use verification procedures to such an extent that it interfered with the ability of federal officials to carry out their own enforcement responsibilities.  But the federal government submitted remarkably little evidence to that effect in support of its preliminary injunction motion.  Under those circumstances, the Supreme Court is unlikely to conclude that the U.S. is likely to succeed on the merits of its preemption claim with respect to Section 2(B).

Section 3

Federal law makes it a crime for any alien within the U.S. to fail to carry a federal alien registration card with him at all times.  The law provides relatively mild sanctions for non-compliance, and it has virtually never been enforced in recent decades.

S.B. 1070 creates the potential for additional sanctions on those who fail to comply with the federal requirement.  Section 3 provides that those who violate the federal law are also in violation of Arizona criminal law, and it authorizes fines and imprisonment for noncompliance.  The obvious target of the Arizona statute is illegal aliens, who are not authorized to register with federal authorities and thus cannot legitimately obtain an alien registration card.  Arizona argues that Section 3 cannot be deemed to conflict with federal law because it does no more than ensure compliance with existing federal law.

Section 3 is vulnerable to an implied preemption challenge, however, because there is no indication that Congress has ever encouraged state assistance with its alien registration program.  Moreover, after decades of federal non-enforcement of the program, it is at least plausible to argue that Congress has acquiesced to current policy and does not really intend immigration officials to begin strict enforcement against authorized aliens and illegal aliens alike.  Under those circumstances, the Supreme Court might well conclude that Congress intended to “occupy the field” with respect to the alien registration program and did not intend to permit states to establish a parallel enforcement regime.


Section 6

Section 6 amends the Arizona statute that outlines the circumstances under which a law enforcement officer is permitted to arrest a person without an arrest warrant.  The prior version of the statute listed four broadly worded circumstances under which warrantless arrests were permissible.  Section 6 of S.B. 1070 adds a fifth: “The person to be arrested has committed any public offense that makes the person removable from the United States.”

The Ninth Circuit held that Section 6 was impliedly preempted because it supposedly permits warrantless arrests based on nothing more than a determination by Arizona officials that an individual is subject to deportation.  But that appears to be a serious misreading of the statute.  Section 6 authorizes warrantless arrests only of those who have committed a “public offense” – i.e., an act that would constitute a crime in Arizona or some other state.  Since Arizona law already authorizes warrantless arrests of those believed to have violated the Arizona criminal code, Section 6 appears at most to apply to offenses that violate the criminal code of some state other than Arizona.  In other words, Section 6 appears to apply in an exceedingly small number of cases.  There nonetheless appears to be considerable confusion among lawyers on both sides of the case regarding what Section 6 actually means.  Under those circumstances it seems unlikely that the Supreme Court would wish to venture an opinion regarding whether the statute is impliedly preempted by federal law.

Recommended Citation: Richard Samp, The constitutionality of S.B. 1070, SCOTUSblog (Jul. 11, 2011, 9:28 AM),