Arizona v. United States

| January 4, 2018 | 0 Comments

It’s impossible to really keep diving into sanctuary cities without an understanding of the 2012 case Arizona v. United States. Law is a wide and tangled field where precedent is of utmost importance. It’s an interesting concept in and of itself: a previous court ruling that serves as a sort of general rule for any rulings that come after. Precedent can act either as a source of wide freedom or of strict restraint.

Arizona v. United States debated the constitutionality of a 2010 Arizona state law called the Support Our Law Enforcement and Safe Neighborhoods Act, or S. B. 1070. There were four key components of the law that the Supreme Court ended up dealing with, which I’m going to break down below and pair with their respective SCOTUS rulings.

With Supreme Court cases, there are always a variety of opinions up for the reading. I base my writing on the majority opinion, in this case written by Justice Kennedy. However, if you are interested in further reading, there are opinions written by Justices Scalia, Thomas, and Alito that add an interesting variety of perspectives to the case.

As always, a disclaimer:  I have no official legal training of any sort. All I do is read, interpret, and describe. I welcome any and all criticism, disagreement, and challenging concerning all of my writing – disagreement is the foundation of discourse, and discourse is what builds common ground.


And now, the four contentious clauses of S.B. 1070 and their respective Supreme Court findings:

  1. Section 3, which makes a person guilty of “trespassing” if they are an alien with no documentation papers on their person and they are “present on any public or private land in this state”.

The documentation papers part refers to clauses in the Immigration and Nationality Act, a fundamental piece of US immigration law, that already requires having proper registration on one’s person. Those clauses stipulate that it is a federal misdemeanor to be found without such papers. The trespassing part is an extra state-level layer added on by Arizona.

This was found to be unconstitutional. The principle underlying this decision is that of preemption, an idea that comes right out of the “Supremacy Clause” of the Constitution (Article VI, section 2). The clause directly states that federal laws are “supreme”, and that all state judges are bound to them over any state laws. The direct implication, and the one that this case hinges on, is that state laws cannot exist when they directly contradict or undermine federal laws. Federal laws preempt opposing state laws, and federal judges get to strike state laws down.

It’s interesting, because it seems as though this trespassing law doesn’t violate federal law in a direct way. However, Kennedy contends that the complete and well-detailed system of alien registration in place on the federal level – the immensely complex immigration system detailed in pages upon pages of complicated text – cannot reasonably leave room for states to add on without interference. “Where Congress occupies an entire field,” Kennedy says, “as it has in the field of alien registration, even complementary state regulation is impermissible.”


  1. Section 5(C), which makes it unlawful for an undocumented immigrant to “apply for work, solicit work in a public place, or perform work”.

This is actively different from the federal law that already existed. Federal law, namely Sec. 274A of the Immigration and Nationality Act, makes it illegal to hire or recruit any unauthorized aliens as employees. However, federal law doesn’t criminally punish the undocumented for getting a job. There are some civil penalties; for example, those found to have been employed illegally are unable to ever adjust their status to legal, and are at risk of deportation.

Arizona’s addition was found to be unconstitutional. Kennedy suggests that the civil penalties in place at the federal level show that “Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” The fact that Congress has decided not to make employment a criminal offense effectively, then, prevents states from overriding that decision. Congress set up a specific plan that did not allow for criminal charges; state laws undercutting that plan are preempted.

There is an important element of foreign policy that Kennedy brings up as well. In immigration law in particular, the principle of preemption is not the only interest that keeps states from getting too creative. The idea of immigration law by definition involves foreign nationals – undocumented immigrants in the United States are documented citizens somewhere. Immigration and deportation are international efforts, and communication between the United States government and other governments is critical to the entire process. The idea of state-level legislation being able to establish substantively different immigration law would add 50 new layers to the entire process, one for each state: a policy nightmare that could not be allowed to occur.


  1. Section 6, which states that law enforcement officers can arrest individuals without a warrant if they believe that the person has “committed any public offense that makes the person removable from the United States”.

The debate about this clause produced one of the most important lines in immigration law precedent: “as a general rule, it is not a crime for a removable alien to remain in the United States.”

The existing federal process for immigration law violations doesn’t even involve an initial arrest. It simply is not treated as a crime. This is another case of preemption justified by how completely Congress has outlined usual process. Kennedy describes the usual procedure in the process of striking down this clause: the Attorney General can issue an arrest warrant that can only be executed by only “trained federal immigration officers”, but even this arrest process is an exception to the rule. The usual process is almost like a traffic ticket, but obviously with a great deal more gravity – a “Notice to Appear” is the first document issued to the suspected person, not an arrest warrant. It’s effectively a court date.

Federal law gives detailed instructions for “when it is appropriate to arrest an alien during the removal process”, in Kennedy’s words. Section 6, again, is an example of a state-level layer that oversteps the process on the federal level. Giving state (or local!) level police officials the power to arrest people on the basis of maybe-being-undocumented endows those officials with almost as much power as the Attorney General. Section 6 was found to be unconstitutional.


  1. Section 2(B), which states that law enforcement officials are required to check the immigration status of anyone upon “reasonable suspicion” that they are undocumented.

This section leaves a lot more wiggle room. The phrase “reasonable suspicion” is pretty broad and flexible, and there are other similar phrases throughout the clause. The law requires officers to make “a reasonable attempt” at checking, only “when practicable”, and only under “reasonable suspicion”.

There are two reasons why this could potentially be unconstitutional. The first is that the law does use mandatory language – officers are required to check under certain circumstances – and that removes some of the discretionary nature of immigration law (the whole idea that officials can choose either to enforce or not enforce certain things). Secondly, and somewhat similarly to the Sec. 6 logic, the checking process could potentially result in a longer detention period than the original infraction would require. Picture someone already being held in jail on suspicion for a low-level crime when a question about their immigration status arises. The 48-hour legal detention period – if you’ve seen that show on A&E, you know what I’m talking about – could be almost up when that comes under question. Officers would, in that situation, be legally pressured to hold that individual for longer, depriving them of a constitutional right to liberty.

However, the Supreme Court did not buy this argument. The fuzzy language of the law gives officers freedom in terms of when and how to enforce Sec. 2(B). All the “reasonable”-type phrases provide a sort of discretion in and of themselves, in Kennedy’s view. Additionally, the law does not in any way require that police departments detain people while checks are taking place. This part of the law was left in place, and is still a contentious topic in immigration law.


Arizona v. United States is a landmark immigration case in recent history. It provides scaffolding for a variety of important arguments that have come since, including the Massachusetts Supreme Judicial Court’s ruling in Commonwealth v. Lunn (which I’ll get into next time). Court decisions are informed and governed by the precedent set before them.

The judicial system is an arena that attempts to curb history repeating itself. Court decisions are slow and complex, but they are a fundamental part of keeping unfair impulses in check. Gotta love em.


Next time: Commonwealth v. Lunn!


Text of Kennedy’s Ruling:

S.B. 1070:


featured photo credit: funcrunch funcrunch-20170905-8476 via photopin (license)

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Category: featured, Politics, Social Activism

Lolo Serrano

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