Arizona v. United States: What happened? (Part 3)

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By Inger Eberhart

Inger's political columns and essays have appeared in the Atlanta Journal-Constitution, Marietta Daily Journal, The Social Contract Journal and other publications. Inger has appeared on My Fox Atlanta, 11 Alive, WSB-TV and has addressed state legislative committees, municipalities and Tea Party groups to educate Americans on the adverse effects of sustained mass immigration. Find her on Twitter @Hunter7Taylor.

The writer's views are her own.

July 4, 2012

In the decision handed down from the Supreme Court, five Justices concurred in the decision in full while three Justices concurred in part and dissented in part of the decision.  As stated in an earlier blog, the core of the Majority Opinion’s conclusions rest on the idea that responsibilities solely within the purview of Congress are both express and implied.  Any state law that crosses the threshold of Congress’s responsibility is a conflict and federal law will prevail.  In addition, the underlying unsaid assumption is those who are in the US illegally are protected by the same guarantees as those here legally.

Section 2(B) is the one provision where each Justice concurred.  The section states that for any lawful contact made by a law enforcement official, the official has the authority to determine the person’s immigration status. The reason this section was allowed to stand is because it is impossible to conclude or hypothetically surmise that this state provision conflicts with federal law because the state courts have not had an opportunity to enforce it.  As Scalia notes, without the benefit of definitive interpretation, the Courts cannot assume section 2B will conflict with federal law.  This is a clear victory for pro-enforcement advocates.  Sections 3, 5(C) and 6 did not meet with the same fate.

Section 3 of Arizona’s SB 1070 forbids the “willful failure to complete or carry alien registration documentation…”

Majority rationale

The Majority Opinion found that federal law already requires the alien to carry proof that they have registered with the federal government to be in the US legally.  According to the Majority, Arizona intruded on the alien registration responsibility that is solely within the purview of Congress.  “Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.” Congress intended to preclude the States from complementing the federal law or enforcing additional or auxiliary regulations.

Dissent rationale

The state can make national purposes its own when protecting the integrity of its borders and state concerns.  The Arizona law does not add an additional or complementary registration requirement.  It merely mirrors the federal law and makes the federal law a violation of state law.

“[T]he State is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.”  Much more is that so when, as here, the State is protecting its own interest, the integrity of its borders.

Section 5(C) imposed penalties upon illegal aliens who applied for work, solicited to perform work as an employee or an independent contractor.

Majority rationale

Historically, the penalties are incumbent upon the employer for hiring illegal aliens not on the illegal alien individually.  The Court found that the Arizona law enacted a state prohibition where a federal prohibition does not exist.  “When there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own laws on the subject.”  However, the passage of the 1986 amnesty saw Congress enacted a comprehensive framework to combat the employment of illegal aliens.  This framework penalized the employer not the illegal alien.  As a matter of fact, the 1986 amnesty is silent on the matter of penalizing the illegal alien.  The Majority concludes that this is an implied responsibility that remains with the federal government although the amnesty legislation does not address it.  The Arizona law sought to penalize the illegal alien although there is no framework in federal law for this to occur.

Dissent rationale

Although Congress has imposed penalties on the employer for hiring illegal aliens, it does not mean that the State cannot lay penalties on the illegal alien employee.  Alito stated, Congress’s “decision not to adopt a regulation” is not “the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.”

Section 6 allowed for warrantless arrests of illegal aliens.  It stated “without a warrant, may arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.”

Majority rationale

“As a general rule, it is not a crime for a removable alien to remain present in the United States.”  There is a process to follow whereby the illegal alien is notified that s/he must appear before a court in order to have a removal hearing.  If an alien is to be removed then a warrant will be issued.  However, the Court contends that Arizona law gave officials the authority to remove the alien on the basis of some “public offense” without input from the federal government.  The removal process was not

Dissent rationale

The simple detainment of an alien by the state to allow the federal government to determine if an alien is removable is not the commencement of removal proceedings.  Scalia argues that “…unless and until these aliens have been given the right to remain, Arizona is entitled to arrest them and  at least bring them to federal officials’ attention, which is all that §6 necessarily entails.”  Simply because it is not a federal crime for a removable alien to remain in the US does not mean it cannot be a state crime for the alien to remain in Arizona.  The limitations placed on the federal government do not flow to the state government in its need to protect the integrity of its borders.

Three sections of the Arizona law were struck down for varying reasons.  Other states relied on the Arizona law as a guideline for crafting their immigration legislation.  Where does this leave the states and what can pro-enforcement advocates do?


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