The Supreme Court has issued its long awaited decision on the constitutionality of the Arizona Immigration law known as SB 1070. The case came before the Court following a decision by the lower courts to grant a preliminary injunction enjoining the application of four provisions of the Arizona law. The Ninth Circuit determined that it was likely the United States would prevail on its challenge that the provisions of the Arizona law were preempted by Federal law and were therefore unconstitutional. The Supreme Court held that three of the four provisions were unconstitutional, and it was premature to determine if the fourth provision was unconstitutional until the Arizona courts could interpret and apply it to specific facts.

Justice Kennedy, writing for the majority, held that the provisions of the Immigration Reform and Control Act were carefully drafted to provide a balance between enforcement and humanitarian concerns. Congress debated, and specifically rejected, provisions that would have made it a Federal misdemeanor to engage in unauthorized employment. Instead, Congress opted for a scheme of enforcement that places the onus of employment verification on the employer. While there are consequences to the individual for engaging in unauthorized employment, including being subject to deportation or the prohibition for certain future benefits, there are complex statutory schemes to strike a balance between enforcement and humanitarian concerns.

The following three provisions were held unconstitutional because they conflict with the Federal Government’s right to make laws regarding immigration and to conduct foreign policy:

  • The Arizona provision made it a crime under state law for immigrants to fail to register as required under a federal law.
  • For the first time, Arizona made it a crime for unauthorized immigrants to work or to try to find work, and
  • Local and state police were granted authority to arrest people without warrants if they have probable cause to believe that they have done things that would make them deportable under federal law.

The fourth provision challenged by the Department of Justice, known as the "show me your papers" provision, requires the police to make a reasonable attempt to determine the immigration status of every person detained by the police if there is a "reasonable suspicion" that the individual is not authorized to be present in the United States. Justice Kennedy, while determining that this provision was not clearly unconstitutional, did note that there were limits to how this provision should be interpreted. He stated that "Detaining individuals solely to verify their immigration status would raise constitutional concerns." The majority opinion specifically avoided a determination that it would be lawful to detain an individual solely because he lacked valid immigration status and held that this determination would have to be made after the Arizona courts interpreted and applied the statute to actual facts. Instead, Justice Kennedy merely determined that it was not unconstitutional to require the state officials to communicate with Federal officers regarding the status of any particular individual. Whether this provision will ultimately be found to be constitutional will depend upon the manner in which the Arizona officials apply the law. The Supreme Court’s decision, however, makes it clear that there are limits to Arizona’s enforcement of Federal immigration laws.