Tomorrow the Supreme Court will hear arguments in US v. Arizona, the battle over the the state’s radical anti-immigrant law.
Both sides agree that the outcome of the case depends upon whether the contested provisions of SB 1070 are “preempted” by federal law. The parties disagree, however, over two important preliminary issues involving which side should bear the burden of proof. In addition, the parties offer competing interpretations of the federal immigration laws alleged to preempt the four contested provisions.
Here’s a preview of the arguments.
The first of the “threshold” issues the court must decide, even before deciding whether the enjoined provisions of SB 1070 are “preempted,” is which party bears the burden of proof. If the Court applies a presumption against preemption, the United States bears the burden of demonstrating that Congress has specifically prohibited states from enforcing each of the four contested provisions. But if the Court applies a presumption for preemption, Arizona must show that Congress affirmatively permitted states to enforce such laws.
Arizona argues that the Court to apply a presumption against preemption, as courts typically do in preemption cases. They state that there is “no immigration exception to the general rules of preemption.” By contrast, the United States argues that because immigration is an area of law traditionally reserved for the federal government, the Court should presume the enjoined provisions of SB 1070 are preempted.
2. “Inherent authority” to arrest violators of federal immigration law
The second threshold issue the Court will take on is whether states have “inherent authority” to arrest persons solely on suspicion that they have violated federal immigration laws. Arizona argues that state officers have “inherent authority” to arrest persons suspected of violating all federal laws, including civil immigration laws, unless Congress directly forbids them from doing so.
In contrast the United States argues that because immigration has historically been an area of exclusive federal responsibility, state law enforcement officers may not make immigration arrests unless specifically authorized by Congress or in cooperation with federal officials.
3. Section 2(B) “reasonable suspicion” and investigation of immigration status
Now onto the substantive challenges to the law. Arizona argues that, far from preempting Section 2(B), federal law encourages state and local police to investigate the status of suspected unauthorized immigrants. As evidence, the state points to federal statutes which allow states to “cooperate” with the federal government in the identification of unlawfully present noncitizens which require the federal government to respond to state requests to verify or ascertain the immigration status of individuals they encounter and which say that states cannot prohibit their own employees from exchanging information with federal immigration authorities. In light of these federal provisions, Arizona argues that Section 2(B) is consistent with the intent of Congress, ant that is to encourage state and local law enforcement officers to investigate the status of suspected unauthorized immigrants they encounter.
The United States sees it differently. The Department of Justice argues that by permitting local law enforcement agents to “cooperate” with the federal government, Congress authorized them to enforce federal immigration law, but only to a point. Local law enforcement may “cooperate” only so long as they follow the instructions and priorities of federal immigration officials. The government argues that by requiring local officers to initiate immigration investigations of all suspected unauthorized immigrants they stop or arrest, SB 1070 will disrupt the federal government’s focus on noncitizens convicted of criminal offenses, forcing the government to expend resources on cases that have not been designated as a priority. The United States also argues that Section 2(B) will result in the unnecessary detention of immigrants with permission to be in the United States, which could in turn create significant foreign policy consequences.
In an amicus brief, the ACLU and other immigrants’ rights organizations disagree with both Arizona and the United States. The organizations argue that local officers may enforce federal immigration laws only in limited situations specifically authorized by Congress, such as under a formal “287(g) agreement” entered with the Department of Homeland Security. Outside of these situations, the organizations argue that local officers may not enforce federal immigration law even when their actions are consistent with federal priorities.
4. Section 3 criminalizing failure to obtain or carry “registration” papers
Arizona argues that states possess general authority to prohibit the same conduct that is forbidden by Congress, so long as the state statute “mirrors” federal law. Arizona maintains that Section 3 applies to the same conduct forbidden by Congress and should not be preempted because it “tracks federal law in all material respects.”15 The state notes that SB 1070’s maximum penalty for violations of Section 3 do not exceed those of the federal provisions it attempts to mirror.
The United States argues that the registration of immigrants in the United States is an area in which Congress left no room for state legislation whatsoever. The government further argues that Section 3 effectively makes unlawful presence in the United States a criminal offense, whereas federal law imposes only civil penalties (i.e. deportation) for residing in the country without authorization. The United States also notes that unlike federal law, which permits violators to receive probation or a suspended sentence, SB 1070 requires convicted immigrants to receive jail time.
5. Section 5(C) criminalizing working and solicitation of work
Arizona argues that unlike immigration‐related matters, states have long had the
authority to regulate issues regarding employers and employees. Arizona also argues that whereas Congress restricted the type of sanctions that states may levy against employers of unauthorized workers, Congress has not said anything about the type of penalties that states may impose on unauthorized workers themselves.
Finally, Arizona argues that subjecting unauthorized workers to state criminal punishment will further lawmakers’ goal of reducing unauthorized employment.
The United States argues that Congress deliberately rejected proposals to impose criminal penalties on unauthorized workers, deciding instead to impose only civil penalties (i.e. deportation). Under federal law, the United States notes that unauthorized workers may face criminal penalties only for engaging in document fraud or other deceptive practices. The United States also argues that unauthorized workers may be penalized under federal law only for accepting employment, not soliciting employment.
6. Section 6 authorizing warrantless arrest for commission of “removable” offenses
As previously noted, Arizona argues that state and local police officers have “inherent authority” to arrest people solely on suspicion that they are present in violation of federal immigration law. Arizona also argues that Congress has explicitly authorized states to “cooperate” with the federal government in the apprehension of unlawfully present noncitizens.
Finally, Arizona argues that because Section 6 does not require state and local officers to make arrests, a determination of whether the provision is preempted by federal law cannot be made until law enforcement officers actually exercise such authority.
The United States argues that Section 6—like Section 2(B)—permits local officers to take action against suspected immigration violators without having to “cooperate” with the federal government. The United States also argues that Section 6 authorizes local officers to arrest immigrants with permission to stay in the country, such as those who are subject to removal but whose life or freedom would be threatened in the country of deportation. The United States also notes that local officers could have great difficulty determining whether a prior criminal conviction is grounds for deportation, because most removable offenses under federal immigration law fall under broadly defined categories like “crimes involving moral turpitude.”
Check back for ongoing updates of the arguments and analysis of the potential outcomes in yet another landmark case in this term of the Roberts Court.
Photo from Mark Fischer via flickr.
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