The Federal Government’s broad, unquestionable power over immi gration and alien status rests on its constitutional power to “establish a uniform Rule of Naturalization,” and includes, among other things, specifying categories of aliens who are ineligible to be admitted to the United States, requires aliens to register with the Federal Govern ment and to carry proof of status, imposes sanc tions on employers who hire unauthorized workers, and spec ifies which aliens may be removed and the procedures for doing so. Removing, more commonly known as deportation, is a discretionary civil matter exercised by immigration officials. The Department of Homeland Security, through its Immigration and Customs Enforcement (ICE) agency, is responsible for identifying, apprehending, and removing (deporting) illegal aliens as well as providing immigration status information to federal, state, and local officials. 

Recently, Arizona legislators found that it is in the State’s interest to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. In 2010 Arizona enacted a statute called the “Support Our Law Enforcement and Safe Neighborhoods Act” (S. B. 1070) to address this issue. With Arizona’s controversial legislative approach now spreading to several other states including Georgia, the United States sought to enjoin the law as preempted by the “Supremacy Clause” of the U.S. Constitution which gives Congress the power to preempt state law. 

The lower Court issued a preliminary injunction preventing four of its provisions from taking effect: 

• Section 3 which makes failure to comply with federal alien-registration requirements a state misdemeanor; 
• Section 5(C) which makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; 
• Section 6 which authorizes state and local officers to arrest without a warrant a person “the officer has probable cause to believe … has committed any public offense that makes the person remova ble from the United States”; and, 
• Section 2(B) which requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person’s immigration status with the Federal Government. The Ninth Circuit affirmed, agreeing that the United States had es tablished a likelihood of success on its preemption claims. 

On June 25, 2012 the U.S. Supreme Court held that Sections 3, 5(C), and 6 of the Arizona immigration law are preempted by federal law. 

• Relying on precedent, the Court stated that Section 3’s registration provision intrudes on a “complete” federal registration plan to be a “single integrated and all-embracing system” prohibiting even complementary state regulation. 
• Section 5(C)’s criminal penalty of aliens is unconstitutional because Congress decided it would be inappropriate to impose criminal penalties on unauthorized em ployees and therefore a state law to the contrary is an obstruction to the regulatory system Congress chose. 
• Section 6 fails because it attempts to provide state officers with even greater arrest authority than that granted federal officers by Congress in limited circumstances, which state officers could exercise without in struction from the Federal Government. 

However, the Judges did permit to stand (rather that the injunction was imporper) Section 2(B)’s provisions requiring state officers to verify the person’s immigration status with the Federal Government with the limitation that: 

(1) a detainee is pre sumed not to be an illegal alien if he or she provides a valid Arizona driver’s license or similar identification; 

(2) officers may not consider race, color, or national origin “except to the extent permitted by the United States [and] Arizona Constitution[s]”; and 

(3) be “im plemented in a manner consistent with federal law regulating immi gration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” 

The Court found that the mandatory nature of the immigration status checks does not inter fere with Congress’ immigration scheme as consultation between fed eral and state officials is an important feature of the immigration system including encouraging the sharing of information about possible immigration violations.

Nevertheless, the Court did leave open a potential challenge to Section 2(B)’s constitutionality. If the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the law would likely survive further challenge on preemption. The Court’s concern is that it is unknown whether in carrying out Arizona’s law state officers would delay the release of detainees for no reason other than to verify their immigration status, which raises potential 4th Amendment (prevention of unreasonable search and seizure) issues and would potentially put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.

The Court’s decision in the case highlights many of the same pitfalls similar states will soon find themselves, but at the same time provides states guidance on a narrow approach to immigration enforcement that would work on the state level. Only time and most likely several more trips to the Court will tell.