Editor’s Note: Mark Alvarez, a Salt Lake City attorney and one of Utah’s best go-to sources for information about immigration issues, offers a clear, concise, and dispassionate analysis of the U.S. Supreme Court’s decision this week in Arizona v. United States regarding SB1070. Contrary to the media’s irresponsible predilection for covering this like a sporting contest and statements by public officials not only in Arizona but also in Utah, the decision is a good example of judicial temperance.

Furthermore, the words and details in the decision prove the utter irresponsibility of Utah’s elected officials in pursuing and enacting unconstitutional laws based on incompetent readings of data and precedent, bad politics that was more about rhetorical posing and grandstanding than about genuine interest in reform, and irrational fears and illogical demonization of innocent people. The result is that the state’s taxpayer interests have been undermined by unnecessary costs and uses of resources for litigation that will eventually be decided against the state’s favor. And, more importantly, the process has placed onerous burdens upon well-intentioned, hardworking immigrants who already have contributed significantly to the state’s economic well-being and deserve equal respect and rights that are accorded to all residents in this nation.

For the Court’s decision, see here and for the transcripts of the Court’s April 25 hearing of the case see here.

Mark Alvarez:

In Arizona v. United States, the Supreme Court of the United States clarified immigration law, and stated: “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process [of the Nation addressing immigration challenges] continues, but the State may not pursue policies that undermine federal law.”

Emphasizing the federal authority over immigration, the Court struck down three provisions of Arizona’s SB1070 as preempted by or contrary to federal law. The Court upheld a fourth provision that could allow a notification role for states. However, it also noted important limitations and possibly anticipated future cases: “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

Arizona v. United States involved facial challenges to SB1070. Facial challenges are considered most difficult to win because “the challenger must establish that no set of circumstances exists under which the Act would be valid.” (U.S. v. Salerno). In short, the provisions of SB1070 had to be interpreted in the way most favorable to upholding them.

As the Court noted, more facial challenges are possible, indeed expected. It also indicated the inevitability of applied challenges.

Words and details matter. They establish constitutional contexts for legislation and policy. Legislative restraint is important, and prudent lawmakers will hew to the limits set by the Court.

The four provisions of SB1070 in question were:

§3 that made “failure to comply with federal alien registration requirements a state misdemeanor”;

§5(C) that made “it a misdemeanor for an unauthorized alien to seek or engage in work in the State”;

§6 that authorized “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 removable from the U.S.’” and

§2(B) that required “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 breakdown by the justices on the provisions was: §3, 6-2 to strike down; §5(C), 5-3 to strike down; §6, 5-3 to strike down; and §2(B), 8-0 to uphold.

Comments and questions from the justices during the oral argument on April 25, 2012 signaled the result. Concerning §3 that criminalized at the state level failure to comply with federal registration requirements, Justice Ginsburg cited precedent and said, “We want the [federal alien] registration scheme to be wholly federal.” The 6-2 opinion striking down §3 read, “the Court now concludes that, with respect to the subject of alien registration, Congress intended to preclude States from complementing the federal law, or enforcing additional or auxiliary regulations.”

Concerning §5(C) that made it criminal for an unauthorized alien to look for work in Arizona, Chief Justice Roberts suggested, “that does seem to expand beyond the Federal government’s determination about the types of sanctions that should govern the employment relationship […] Arizona, in this case, is imposing some significantly greater sanctions.” The 5-3 opinion striking down §5(C) read, “[T]he history of [the applicable immigration law] is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek to engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose.”

Concerning §6 that set up a state scheme for warrantless arrests of potentially removable aliens, several justices expressed concern about the complexity of ascertaining removability and the time that might require. Jurisdictional questions also arose. The 5-3 opinion striking down §6 read, “The federal structure instructs when it is appropriate to arrest an alien during the removal process.” The court mentioned federal prosecutorial discretion and cautioned, “§6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers […] This would allow the State to achieve its own immigration policy.” That was not acceptable to the Court.

Concerning §2(B) that required state officers, in some circumstances after a stop, detention or arrest to ask for a federal immigration check, Chief Justice Roberts said, “All [this state scheme] does is notify the Federal government, here’s someone who is here illegally, here’s someone who is removable. The discretion to prosecute for Federal immigration offenses rests entirely with the Attorney General.” The 8-0 opinion upholding §2(B) reads, “The federal scheme thus leaves room for a policy requiring state officials to contact Immigration and Customs Enforcement as a routine matter.” The Court suggested limitations: “Detaining individuals solely to verify their immigration status would raise constitutional concerns.” The Court also expressed some concern about how long an individual might be detained.

Important to remember is that this case avoided some issues that could arise in future cases. On April 25, 2012, Chief Justice Roberts asked Solicitor General Verrilli, “No part of your argument has to do with racial or ethnic profiling, does it?” The response was, “that’s correct.”

In possible anticipation of future cases regarding §2(B) of SB1070, the Court stated, “There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.”

As stated above, the Court seemed to expect future cases, “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

The Utah Attorney General says the result of this case will be further litigation costs. Utah has already spent more than $100,000 in legal costs and perhaps millions of dollars in legislative resources to develop and pass laws of questionable constitutionality. Wisdom calls for the legislature to reexamine those laws in the new context provided by Arizona v. United States. Expensive, ineffectual laws should be repealed.

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