In 2010, Arizona enacted a S.B. 1070, creating a new misdemeanor that penalized immigrants who were caught without alien registration documents, which is a federal crime (meaning that there was a new state penalty for a federal crime). The United States sued Arizona arguing that the state law intrudes on immigration law, which is an area of the law fully occupied by federal law. Arizona argues that it has interest in regulating the presence of immigrants in its borders.
Preemption requires that state laws are evaluated to determine whether there is federal law in the same subject area. If there is, the state law could be preempted.
In 2010, Arizona enacted a S.B. 1070, creating a new misdemeanor that penalized immigrants who were caught without alien registration documents, which is a federal crime (meaning that there was a new state penalty for a federal crime). There are four sections particularly at issue:
Section 3: makes failure to comply with federal alien-registration rules a state misdemeanor.
Section 5: makes it a misdemeanor for undocumented immigrants to seek work in the state.
Section6: authorizes officers to arrest anyone who they believe with probable cause that they have committed an offense that makes them removable, without a warrant.
Section 2(B): requires officers who make a stop, detention, or arrest in some circumstances to verify the person’s immigration status.
The United States sued Arizona arguing that the state law intrudes on immigration law, arguing that this is an area of the law fully occupied by federal law. Arizona argues that it has interest in regulating the presence of immigrants in its borders.
Does federal law preempt four provisions of this state law?
Three of the sections at issue are preempted, and one is not.
States are sovereign, and this injunction violates that sovereignty. The existence of federal laws in the immigration area does not automatically mean full preemption, so the inquiry should be more about conflict between the Arizona law and federal law. Each section does not actually conflict with federal immigration law.
The U.S. has broad power over immigration through the Constitution. It is important for foreign countries to be able to look to one authority for immigration issues.
Section 3: Hines v. Davidowitz (1941) concluded that the federal government has occupied the field of alien registration. The federal immigration statutes fully cover the field, including punishment for noncompliance. Where the federal government has fully occupied the field, states cannot issue even complementary statutes. Thus, Section 3 is preempted.
Section 5: There is no federal statute creating a punishment for undocumented immigrants applying for work. Congress was intentional about not including a punishment, and therefore this state law conflicts with the federal policy objectives. Thus, Section 5 is also preempted.
Section 6: This section gives state officers greater authority to arrest immigrants on the basis of possible removability than federal law does. This conflicts with federal law, and thus, Section 6 is preempted.
Section 2(B): This section requires officers to in some circumstances to check peoples’ immigration statuses, which is held with Immigrations and Customs Enforcement (ICE). This is essentially requiring more communication between state and federal officials, which is desirable. The U.S. argues that it could be executed discriminatorily, but it is too early to determine whether this is the case. Therefore it is not preempted at this time.