Arizona SB 1070: Immigration Law and Federal Authority

Introduction

On January 13, 2010, Senator Russell Pearce, representative of District 18 in Mesa, introduced Senate Bill 1070, which stated as its intent to make attrition through enforcement the public policy of the state of Arizona. In support of this goal, the state would seek to enforce all federal immigration laws in an effort to deter "the unlawful entry and presence of illegal aliens and economic activity by illegal aliens in the United States" ("Support Our Law Enforcement"). Just over three months later, on April 23, Arizona Governor Jan Brewer signed the bill into law, which immediately provoked four lawsuits challenging its constitutionality. These lawsuits were filed in federal court, outside the jurisdiction of any state court. In response to criticisms, Governor Brewer then signed Senate Bill 2162, which modified the newly enacted immigration law. But this did not quiet opponents, who filed more lawsuits and were joined by the United States Department of Justice. The Department of Justice's lawsuit, filed on July 6, claimed that the Arizona immigration law was unconstitutional because it interfered with federal immigration regulation — the prerogative of the federal government, not any individual state.

The first official response came when District Judge Susan Bolton ruled that the Justice Department's suit was valid and granted a temporary injunction blocking several key features of the law from being implemented. Undeterred, the very day after Judge Bolton's ruling, Arizona put into effect any portions of the law that her ruling did not specifically block. This remained the situation from the end of July until November 1, when the Ninth Circuit Court of Appeals heard the appeal filed by the state of Arizona. The Court of Appeals upheld Judge Bolton's ruling, setting the stage for the case to be brought before the Supreme Court of the United States.

Just a little over a year after Governor Brewer signed SB 1070 into law, the case was being heard by the highest court in the land. Oral arguments took place on April 25, 2011, and two months later, on June 25, the Court released its decision. The Court struck down several key features of the law — primarily the authority Arizona had granted itself to enforce federal law — but did uphold the provision allowing police to check the immigration status of individuals under certain circumstances. In effect, the Court held that Arizona had overreached its authority and interfered with immigration policy, which is the exclusive authority of the federal government.

Key Provisions of SB 1070

Arizona Senate Bill 1070 stated in its text that the purpose of the legislation was to declare attrition through enforcement to be the official policy of the state. This meant that Arizona was, in effect, declaring war on illegal immigration and waging it through the enforcement of applicable laws. Among the stipulations in the law was a restriction on local police agencies from adopting sanctuary-type policies that would limit or restrict the enforcement of federal immigration laws. The law also permitted law enforcement officers, during lawful stops, to determine the immigration status of individuals whom they reasonably suspected of being undocumented. This authority extended to all individuals when an arrest was made. For any undocumented alien who was arrested, the law provided for transfer to federal custody, as well as prohibiting bans or restrictions on the sharing of information with other governmental agencies. This meant that local agencies could not adopt policies preventing information about undocumented individuals from being sent to government agencies dealing with public benefits, verification of residence, identity confirmation, or immigration authorities. If Arizona citizens believed their local authorities were not in compliance with the law, they were granted the right to sue any government agency that refused to comply. One of the most controversial aspects of the law was a provision that "mirrors federal alien registration laws…which require aliens to register and carry their documents with them at all times" ("Support Our Law Enforcement"). Those who did not comply could, under SB 1070, be subject to arrest under the Arizona criminal code rather than federal law.

The law also affected those who hired undocumented workers, making it a crime to transport, harbor, encourage, or hire undocumented aliens, and even went so far as to make it illegal to block traffic when picking up day laborers. Employers were also required to verify an employee's legal status through the E-Verify system. Finally, the law contained several particularly broad provisions, including the authority to arrest — without a warrant — anyone whom police believed had committed an offense that would make them eligible for removal from the United States, as well as the authority to seize and impound vehicles used in the hiring or transportation of undocumented aliens, or driven by undocumented aliens.

Arguments in Favor of SB 1070

It was on April 25, 2012, that the Supreme Court of the United States heard oral argument concerning Arizona's immigration law, SB 1070. Attorneys for the state of Arizona argued first that, as a state within the union, Arizona had an inherent right under the Constitution to enforce immigration law. Their next argument relied on Supreme Court precedent holding that the "overriding factor in determining whether a state law is preemptive is Congressional intent; not the policies of the Executive Branch" ("Arizona Offers"). In other words, a state has the authority to pass a law that is consistent with the intent of an act passed by the United States Congress. Arizona further asserted that Congress had encouraged cooperation and assistance between state and local authorities and their federal counterparts in the enforcement of immigration laws, something demonstrated through a variety of existing federal statutes.

Supporters of SB 1070 also directed arguments against the Obama administration's insistence that the law "interferes with its own priorities and strategies" ("Arizona Offers"). The attorneys for Arizona suggested that the Executive Branch was opposing the law partly due to pressure from foreign governments, a point intended not only to undermine the Justice Department's legal standing but also to appeal to the patriotism of the Justices. Furthermore, by claiming that SB 1070 was consistent with the intent of Congress when it passed federal immigration legislation, Arizona implied that the administration's opposition — grounded in its own enforcement priorities rather than statutory text — was itself inconsistent with Congressional intent. In other words, the President was choosing not to enforce immigration laws duly passed by Congress; and since the consequences of that inaction were felt most acutely at the local level, Arizona argued it was both justified and necessary in stepping in to fill the void.

Conclusion

Citing frustration over what they considered to be the federal government's refusal to enforce federal immigration laws, the state of Arizona passed SB 1070, granting itself the authority to enforce existing federal immigration statutes. Its purpose was plainly stated in the bill itself: to wage a war of attrition against illegal immigration. To pursue that goal, the state empowered state and local law enforcement to stop and demand documentation from anyone they suspected of being in the United States unlawfully. Since the federal government would not act, Arizona asserted, it would. However, as Justice Kennedy stated in the opinion of the Court, "the federal power to determine immigration policy is well settled" (Arizona v. United States, 2012, p. 3). Arizona did not have the constitutional authority to grant itself the power to enforce federal immigration laws.