Arizona v. U.S.–A Victory for Immigrant Workers

From the National Immigration Law Center:

MANY OF US HAVE HEARD that the U.S. Supreme Court’s recent decision on Arizona’s SB 1070 law invalidated three of out of SB 1070’s four provisions. But did you realize that the decision contained a victory for immigrant workers?  Read on to find out more.

In the case that started out as U.S. v. Arizona (and then became Arizona v. U.S. when Arizona appealed the lower courts’ decisions to the Supreme Court), the U.S. government claimed that certain portions of SB 1070 were preempted by federal law. In three of the four provisions, the Supreme Court agreed and held that the provisions were unconstitutional.

Struck Down: Provisions Deemed Unconstitutional

•  Requirement for immigrants to carry documents (Section 3). Section 3 of SB 1070 created a state misdemeanor for the “willful failure to complete or carry an alien registration document.” The Court upheld the injunction of this provision based on its finding that Congress has enacted a comprehensive framework for immigration registration and thereby has occupied the field.  Where Congress “occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.” Slip Opinion, 10. Thus, immigrant workers no longer face potential criminal charges for failing to carry their immigration papers.  (Similar provisions were included in anti-immigrant state laws in Alabama and South Carolina.)

•  Criminalized work (Section 5(c)). Section 5(c) made it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” In striking down this provision, the Court first noted that the Immigration Reform and Control Act of 1986 (IRCA) provided a “comprehensive framework” for the regulation of unauthorized employment. The Court then reviewed the legislative history of IRCA and found that, in passing the statute, Congress had deliberately chosen not to criminalize immigrants who worked without authorization. Section 5(c) was preempted because it would conflict with IRCA. Thus, immigrant workers are spared possible criminal charges simply for trying to earn a living. (A similar provision was included in Alabama’s anti-immigrant law.)

•  Warrantless Arrest (Section 6). Section 6 allowed local law enforcement to make a warrantless arrest of a person if the officer making the arrest had probable cause to believe that he had committed an offense that would make him removable from the U.S. The Court found that the removal process involves discretionary decisions entrusted exclusively to the federal government that would be undermined by the unilateral state action authorized by section 6. The Court therefore found the section to be preempted. Thus, immigrant workers are no longer subject, under Arizona law, to warrantless arrest by local police acting unilaterally on their suspicion that the worker had engaged in past deportable activity. (Similar provisions were included in anti-immigrant state laws in Utah and Indiana.)

Fortunately, these provisions were struck down. Before they were invalidated, they had threatened immigrant workers’ safety, security, and ability to enforce their rights, both on and off the job. Because the Court struck down these provisions, unscrupulous employers cannot use them to make immigrant workers more vulnerable.

Narrowed, but Upheld for Now

The decision certainly was not all good news. Unfortunately, the Court refused to uphold the injunction of SB 1070’s section 2B, which requires local police to check the immigration status of any person stopped or detained if they have a “reasonable suspicion” that the person is undocumented. Since the provision has not yet gone into effect, the Court reasoned, it is too soon to determine whether it will be interpreted by the state in a way that conflicts with federal law.

The Court noted that the state’s interpretation of this provision could raise constitutional concerns, particularly if it were interpreted to permit the detention of a person solely to check immigration status, or immigration checks resulting in prolonged detention, or discrimination.  Significantly, though, the Court warned Arizona that “[t]his opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” Slip Opinion, 24.

NILC and other legal allies, including the ACLU and MALDEF, are engaged in a lawsuit, Friendly House v. Whiting, that challenges SB 1070 on legal grounds that were not before the Court in the federal government’s case. Unlike the federal government’s case, Friendly House challenges the discriminatory motivation behind the law and the inevitable racial profiling that will result from the implementation of section 2B. In that litigation we will continue to seek to enjoin section 2B and other harmful provisions of SB 1070.

Although the Court explicitly directed that its ruling permitting implementation of section 2B will not take effect until the judgment is sent back to the Ninth Circuit Court of Appeal for further proceedings, we have received disturbing reports that some local police officers and officials believe they can implement section 2B now. Local advocates have set up a hotline to track abuses by law enforcement. If you know anyone who has been the victim of racial profiling or other abusive practices in Arizona, please share this hotline number with them: 1-800-RESPETO (1-800-737-7386).

Despite some victories, the ongoing battle against the law continues. NILC will continue our legal fight until SB 1070 is struck down in its entirety.

More information about NILC’s litigation against SB 1070 and copycat laws passed in five other states is available from www.nilc.org/litigationie.html. If you have questions, contact Josh Stehlik, NILC’s workers’ rights attorney, at 213-674-2817 or stehlik@nilc.org.

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