Federal Immigration Authority Affirmed

Guest post by Professor Angela Banks

The Supreme Court’s decision in United States v. Arizona affirms the federal government’s supremacy to regulate immigration.  Yet the Court’s opinion left two key legal issues to be decided by lower courts.  First, whether states have the independent authority to detain individuals for immigration crimes and second, whether racial profiling is used to identify unauthorized migrants and whether such profiling is unconstitutional.  Debates about the substance of immigration regulation and what the country’s immigration enforcement priorities should be will continue, but the Court’s opinion makes clear that the authority to establish such substance and priorities rests with the federal government.

The Holding

The Court held that federal law preempted three of the four challenged provisions of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070), and that it was too early to determine if the fourth provision was preempted by federal law.

The three provisions held preempted by federal law were:

• Section 3, which made failure to comply with federal alien registration laws a state misdemeanor;
• Section 5, which made seeking or engaging in work by an unauthorized migrant a state misdemeanor;
• Section 6, which authorized police officers to arrest a person without a warrant if the officer had probable cause to believe that the person committed a public offense that made the person deportable.

Section 2(B) is the one provision that the Court concluded was not preempted.  This is the provision that is best known from S.B. 1070.  Section 2(B) requires police officers to ascertain the immigration status of an individual that the officer stops, detains, or arrests in certain circumstances.  The Court concluded that whether federal law preempted this provision depends on how the provision is actually applied in practice.

Future Litigation: As-Applied Challenges

The application of section 2(B) could conflict with federal law if it causes prolonged detentions for non-immigration offenses or detention for unlawful presence without federal direction or supervision.  The Court stated that “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns.”

Anecdotal evidence from jurisdictions with similar provisions suggests that detention times for non-immigration offenses are routinely prolonged while immigration status is checked.  In minor criminal offense cases when an individual would normally be eligible for bail and released after posting bond, some jurisdictions refuse to set bail for immigrant inmates, prevent them from posting bond, or hold them despite posting bond until Immigration & Customs Enforcement (ICE) has decided whether or not to detain the individual.  During this time period, the individual is not being held subject to an ICE detainer or any other direction from federal officials.

This suggests that the kind of prolonged detention that the Court identified as potentially constitutionally problematic is likely to occur once section 2(B) is implemented.  Yet concluding that such prolonged detention is constitutionally problematic depends on whether state law enforcement officials have the authority to investigate illegal entry and other immigration crimes.  If they have such authority, prolonging detention to investigate the immigration crime may not be constitutionally problematic.  The Court left this question unanswered and it is one that will be litigated in the lower courts.

The implementation of section 2(B) will also raise other constitutional issues like equal protection violations based on racial profiling.  This issue was not before the Court, but it is the issue that has been prominent in public discussions of this case.  Fourteenth Amendment equal protection challenges will be difficult due to the Supreme Court’s decision in United States v. Brignoni-Ponce.  In that case, the Court held that “Mexican appearance” can be one of several factors used to establish reasonable suspicion of unlawful presence.  Racial profiling by Arizona law enforcement officials is currently the subject of federal investigation and we are likely to see additional lawsuits raising this issue.

Debating Immigration Enforcement Priorities

While the Court’s opinion left a number of questions unanswered, one question it resolved was whether states have the authority to establish immigration enforcement priorities.  Throughout the opinion the Court reaffirmed the federal government’s broad authority to regulate immigration, and therefore to set enforcement priorities.  Current debates about unauthorized migration reflect disagreements about how to enforce immigration law and what the enforcement priorities should be.  The Court suggested that resolution of these political issues should be based on a political will that is “informed by searching, thoughtful, rational civic discourse.”  As immigration issues are litigated in courts, debated in legislatures, and discussed in various public forums, it is my hope that our discourse will in fact be searching, thoughtful, and rational.

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Angela M. Banks is an associate professor at William & Mary School of Law.  Her research interests include immigration, international law, and human rights. 

A video explaining the legal issues before the Court in United States v Arizona is available here. Banks’ scholarship is available here.

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Scalia Uses Dissent to Deliver Policy and Political Lecture from the Bench

If you think that the Supreme Court is supposed to leave policy and political concerns to the policy-makers and politicians, then your name probably isn’t Antonin Scalia.

In a blistering dissent from the Supreme Court’s decision rejecting much of Arizona’s controversial immigration law, Scalia spends an inordinate amount of time railing against President Obama’s enforcement policies and Congress’ budget, legislative, and appropriation decisions, as well as the politics of immigration enforcement and reform.

Scalia not only characterizes current federal polices as “questionable” or “unwise,” he rails against the way in which laws – even laws not currently at issue in this case! – are enforced:

“The Government complains that state officials might not heed ‘federal priorities.’ Indeed they might not, particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona.”

He also asks:

“Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement – or, even worse, to the Executive’s unwise targeting of that funding?”

Very few of those things are traditionally considered the domain of the Supreme Court.

Here are some additional points from Scalia’s dissent.

“The Court opinion’s looming specter of inutterable horror – ‘[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,’ ante, at 10 – seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the  Nation’s immigration laws?”

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“What I do fear – and what Arizona and the States that support it fear – is that “federal policies” of nonenforcement will leave the States helpless before [the] evil effects of illegal immigration[.]”

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“The President said at a news conference that the new [DREAM Act] program is ‘the right thing to do’ in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.”

If you think some of Scalia’s arguments sound more like policy or political points than analysis of a state law and whether it’s preempted by the Constitution, you’re not alone.

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One Year Later: The Consequences of Chamber of Commerce v. Whiting

In the two years since Arizona Governor Jan Brewer signed into law SB 1070, the state’s far-reaching and controversial immigration bill, numerous states have produced copycat versions of the legislation. While many of these bills have stalled or failed, others have become law and later been challenged in court by the Department of Justice, immigrant rights groups, and representatives of the affected communities. The DOJ’s challenge to SB 1070, in Arizona v. United States, was the first of these cases to reach the Supreme Court, with oral arguments held in April and a decision expected in June.

Arizona may have been the inspiration for this spate of draconian state immigration laws, but it does not bear sole responsibility for the trend. Rather, the Supreme Court played a role in opening this ugly can of worms. In U.S. Chamber of Commerce v. Whiting, a decision issued one year ago this week, the Supreme Court’s conservative majority effectively endorsed the possibility that states could create their own immigration policies.


The story of Whiting begins in 2007, long before SB 1070 was on the horizon, when Governor Brewer signed the Legal Arizona Workers Act (LAWA) into law. LAWA, which allows Arizona to revoke the business licenses of employers that fail to verify the immigration status of each of their employees, was challenged in federal court by the Chamber of Commerce and immigrant rights groups. That unlikely team of plaintiffs argued that LAWA was preempted by federal immigration laws, and should therefore be blocked. Immigration is an area in which the federal government has long asserted close to exclusive jurisdiction, and rightly so; allowing states to create their own immigration laws or arbitrarily assume some of the roles assigned to federal officers would disrupt what traditionally has been a balanced and uniform approach to immigration.

When the Whiting case reached the Supreme Court, the conservative majority upheld LAWA, finding that it was not preempted by federal law since it pertained to licensing. The court relied on the “plain language” of the federal statutory provision on hiring undocumented immigrants, which expressly preempts state sanctions of employers except through “licensing or similar laws.”

Justice Breyer argued in his dissent that upholding the Arizona law would disrupt a careful balance between the penalties for hiring undocumented workers and the penalties for unlawful racial discrimination. In other words, Justice Breyer warned that this law would make racial discrimination a lesser evil than employing an undocumented immigrant in Arizona.

Whiting sent a powerful message to states like Arizona that wish to enforce their own harsh immigration laws. And there is no question that the laws are intended to be harsh. When debating Alabama’s parallel legislation, HR 56, legislators praised the bill by saying it “attacks every aspect of an illegal immigrant’s life” and hoping that the law would “make it difficult for them to live here so they will deport themselves.” South Carolina and Georgia have also passed their own versions of SB 1070, and numerous other states are considering similar legislation.

Yet in the year since Whiting came down, the lower courts have generally construed the decision narrowly. For example, the Fifth Circuit recently struck down a city ordinance that required all apartment renters in the city to prove their lawful immigration status in order to obtain an “occupancy license.” The court construed Whiting as applying only to business licenses and to the employment of undocumented workers.

Whiting has likewise posed little obstacle to the lower courts that have enjoined various provisions of SB 1070 and copycat legislation in Alabama, South Carolina, and Georgia, finding broad action on immigration by the states to be preempted by federal law or to constitute violations of the Fourth and Fourteenth Amendments.

• In Alabama, a federal court recently struck down provisions of HR 56, holding that the state could not restrict housing options for undocumented immigrants. 
• In South Carolina, a federal district court blocked state law provisions criminalizing the transportation of undocumented immigrants and the failure to carry registration papers, and a provision requiring local law enforcement to verify the immigration status of persons that can be reasonably suspected of being in the country illegally. 
• In Alabama, a district court blocked a far-reaching provision that would allow for the state prosecution of immigration law violations, as well as blocking state restrictions on noncitizens looking for work and state penalties on employers that hire undocumented workers. 
• In Georgia, a federal court blocked a state law provision requiring law enforcement officers to verify the immigration status of people they reasonably suspect to be undocumented upon stop, detention, or arrest.

Thus far, the trend among the lower courts suggests that these inhumane state laws will not withstand judicial scrutiny, but that could change when the Supreme Court issues its decision in Arizona v. United States.

Based on the tenor of oral arguments, the Court may be willing to uphold provisions of SB 1070 that many previously considered to be clearly preempted by federal law. Nevertheless, prevailing expert opinion suggests that the Supreme Court will strike down at least those provisions in SB 1070 that criminalize the failure to carry proper documentation and provide penalties for seeking employment as preempted by federal law. Any other result would be contrary to long-standing Supreme Court precedent and widespread consensus among the circuits on this issue. However, the Roberts Court has surprised legal experts before by bending over backwards to find preemption where there is none and vice versa; few would be surprised if the conservative majority did so again.

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A Look Ahead: The Last Decisions of the Supreme Court's Term

Last week the Supreme Court heard the final oral argument of the term in Arizona v. United States. With little more than two months left until the term officially ends, let’s take a brief look at the cases on the Corporate Court docket in which decisions remain outstanding.

In Christopher v. SmithKline Beecham Corp., the Court will decide whether courts should defer to the Secretary of Labor’s interpretation of “outside salesman” under the Fair Labor Standards Act (“FLSA”), and whether the FLSA’s “outside sales” exemption applies to pharmaceutical sales representatives. During the oral argument on April 16, the justices seemed somewhat more inclined to side with the drug companies by holding that the sales reps fall within the “outside sales” exemption, which would mean they are not entitled to overtime pay. If the Supreme Court ultimately decides in the companies’ favor, it will not only constitute an earthquake in administrative law, it will also deny overtime to roughly 90,000 drug company employees.

In Knox v. SEIU, which was argued on January 10, the Court is considering whether unions must send a notice to workers every time they impose temporary fee increases to cover the costs of additional advocacy activities, rather than report those increases in annual notices as they already do. The Court could decide that the case is moot, as several months ago the SEIU sent all members of the class a $1 bill and a promise to pay one hundred percent of the charged fee increase. If the Court decides the case on the merits, however, and rules against the SEIU, it will erode the power of unions to fight back against new political attacks by making it harder to raise additional funds to respond.

The Court has not yet released its opinions in either of this term’s two cases arising under the Real Estate Settlement Procedures Act of 1974 (“RESPA”). Enacted to protect consumers from overpriced insurance due to abusive practices like kickbacks, RESPA outlaws payment for business referrals.

In First American Financial Corp. v. Edwards, which was argued on November 28,  the Court is considering whether RESPA allows individual plaintiffs to recover charges for title insurance when the selling corporation has violated a provision of the Act, regardless of whether the plaintiff was overcharged. If the Court sides with First American Financial, it will weaken RESPA regulations and put consumers seeking title insurance at an economic and informational disadvantage.

In Freeman v. Quicken Loans, which was argued on February 21, the Court is considering whether RESPA prohibits unearned fees, regardless of whether a third party was involved in the improper fee arrangement. In this case, petitioners were charged loan-discount fees on their mortgages but did not receive the corresponding reduced interest rates. If the Court sides with Quicken, it will allow mortgage lenders to take hundreds or thousands of dollars from homebuyers without giving them anything in return.

And last, but certainly not least, the Court is likely to release its decisions in the remaining blockbuster cases of the term – the healthcare cases, argued on March 26-28, and Arizona v. United States, argued on April 25 -- around the end of June. More details on what is at stake in these two cases can be found at earlier guest blog posts by Professor Tim Jost (on healthcare) and Professor Angela Banks (on Arizona v. United States).

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The Supreme Court Gets Political in Arizona v. United States

When the Supreme Court heard oral argument in the healthcare cases last month, the overtly political tone of several justices’ questioning caused widespread consternation about whether the Court would be deciding the case based on the law or based on their own ideological preferences and policy judgments.

This week, the Supreme Court heard oral argument in the federal government’s challenge to Arizona’s draconian immigration law. Court observers were surprised by certain justices’ willingness once again to lay bare their partisan beliefs, which, of course, should be quite irrelevant to the outcome of the case.

In the Washington Post, Dana Milbank described Justice Scalia’s questioning as “verg[ing] on outright heckling,” noting that “[w]hile other justices at least attempted a veneer of fair and impartial questioning in the highly charged case, Scalia left no doubt from the start that he was a champion of the Arizona crackdown and that he would verbally lacerate anybody who felt otherwise.”

Other commentators thought Scalia was not the only justice guilty of puncturing the veneer of impartiality. Michael McGough commented in the L.A. Times that Chief Justice Roberts provided a useful sound bite to immigration opponents when he pointedly remarked, “It seems to me that the federal government just doesn’t want to know who is here illegally or not.” It is startling that Chief Justice Roberts would engage in this sort of baseless speculation, which has nothing to do with the legal question of whether or not the four challenged provisions of the Arizona law are preempted by federal immigration law.

Writing in The Atlantic, Andrew Cohen noted, “Indeed, reading through the transcript of Wednesday’s oral argument is like sifting through the debris of an ambush. The Court’s majority clearly isn’t feeling deferential toward the federal government's immigration policies. Some of the justices’ disdain for executive branch priorities practically dripped from their words.”

When justices seem to treat Supreme Court proceedings as nothing more than an extension of a political battle, it is no wonder that half of Americans think the justices will make their decisions in the healthcare case based on partisan politics rather than the Constitution or the text of the law.

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What’s at Stake in Arizona v. United States

Guest post by Professor Angela Banks

Arizona’s SB 1070 jeopardizes the existence of nationally uniform immigration laws and policies.  The Supreme Court has the opportunity to prevent the balkanization of immigration law and policy in the United States by holding that federal law preempts SB 1070.

The Supremacy Clause of the United States Constitution states that the Constitution and federal law made pursuant to the Constitution are the supreme law of the land.  If there is a conflict between federal law and state law, the federal law controls because it is supreme and the state law is invalidated.  To determine if federal law preempts state law courts determine whether or not the state law interferes with or is contrary to the federal law.

In 1889, the Supreme Court held that the power to regulate immigration is a federal power.  The Court’s decision was based on the idea that regulating immigration is related to foreign affairs.  In immigration, as in foreign affairs, it is important that the United States speak with one voice.  SB 1070 introduces an additional voice by creating enforcement priorities that differ from those created by federal immigration authorities, and by tolerating enforcement strategies disavowed by federal immigration authorities.  These enforcement priorities and strategies interfere with or conflict with federal immigration law and policy.

Enforcement Priorities

The purpose of SB 1070 is “to discourage and deter the entry, presence, and economic activity of noncitizens who are unlawfully present.”  This creates an enforcement priority that differs from federal immigration enforcement priorities.  Immigration and Customs Enforcement (“ICE”) Director John Morton has stated that ICE only has the resources to deport approximately 400,000 noncitizens a year.  ICE has prioritized unlawfully present noncitizens who have been convicted of serious crimes.  Arizona’s broader enforcement priority creates new burdens on federal immigration resources and redirects federal agency resources away from federally created enforcement priorities.

Enforcement Strategies

SB 1070 empowers sheriffs and police to check the immigration status of individuals in certain contexts when the officer has a reasonable suspicion the individual is a noncitizen and is unlawfully present.  Despite a provision stating that officers “may not consider race, color, or national origin . . . except to the extent permitted by the United States or Arizona Constitution,” race and ethnicity will likely play a role in formulating reasonable suspicion.  First, in U.S. v. Brignoni-Ponce (1975), the Supreme Court held that “Mexican appearance” can be one of several factors used to establish reasonable suspicion of unlawful presence.  Second, racial profiling has been a feature of immigration enforcement in Arizona.  The Department of Justice recently concluded that the Maricopa County Sheriff’s Office (“MCSO”) engaged in pervasive and systematic racial profiling.  Latino drivers were four to nine times more likely to be subject to a traffic stop than similarly situated non-Latino drivers.  This enforcement strategy impacts citizens, green card holders, and unlawfully present non-citizens alike.

One potential consequence of racial profiling is creating a hostile context of reception for noncitizens.  Social science research indicates that immigrants’ social, political, and economic environment plays a role in shaping their decision to naturalize.  Immigrants who find their environment welcoming are more likely to naturalize than immigrants who find their environment hostile.  The creation of a hostile environment undermines federal immigration policy to encourage eligible immigrants to naturalize and become citizens.

A tension exists between SB 1070’s enforcement priorities and strategies and those of the federal government.  This tension prevents the United States from having nationally uniform immigration laws and policies.  This situation can be rectified if the Court reasserts federal supremacy in immigration enforcement and concludes that federal law preempts SB 1070. 

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Angela M. Banks is an associate professor at William & Mary School of Law.  Her research interests include immigration, international law, and human rights. 

A video explaining the legal issues before the Court in United States v Arizona is available here. Banks’ scholarship is available here.

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Supreme Court Grants Cert in Case Challenging Arizona Immigration Law

Yesterday the Supreme Court agreed to hear the case of Arizona v. United States, in which the validity of Arizona’s draconian immigration law is at issue.

Last year, Arizona passed S.B. 1070, a law designed to make it all but impossible for illegal immigrants to live or work in the state. A number of states have since passed copycat laws, in response to what they view as the federal government’s inadequate efforts to control illegal immigration. Most notoriously, Alabama has passed a law with such far-reaching consequences that even the state attorney general has called for revisions.

In this suit, the United States has sought to enjoin enforcement of Arizona’s law as preempted under the Supremacy Clause of the Constitution. In particular, the U.S. has challenged four provisions of the law as incompatible with federal immigration laws and policies. The challenged provisions (1) require that state police ascertain the immigration status of any individual they stop or arrest if they have reasonable suspicion to believe that the person is here illegally (additionally, the person, once arrested, cannot be released until the federal government verifies his or her legal status); (2) make it a violation of law for a person to fail to obtain and carry legal immigrant papers; (3) make it a misdemeanor for unlawful aliens to work or to try to work; and (4) authorize warrantless arrests for individuals who the state police have probable cause to believe has committed any act anywhere that would make them deportable under federal law.

While Arizona maintains that its law falls under the “cooperative” state and local efforts authorized by the Immigration and Naturalization Act (“INA”), the U.S. argues that the Arizona law is clearly meant to supplant federal law and policy, not cooperate with it. Indeed, in Arizona Governor Jan Brewer’s signing statement, she specifically noted the federal government’s “misguided policy” on immigration enforcement.

The district court granted an injunction blocking the enforcement of all four provisions of Arizona’s law, and the Court of Appeals for the Ninth Circuit affirmed. Arizona has now appealed to the Supreme Court.

The U.S. urged the Court to reject the case for review as premature until other courts of appeal have had an opportunity to consider other similar state laws. For example, legal challenges have been raised to provisions of Alabama’s parallel law. Yesterday, a federal district court enjoined enforcement of a provision of that law, known as H.B. 56, which criminalizes “business transactions” between state officials and people who cannot prove lawful immigration status. As in Arizona v. United States, the district court’s ruling in that case was based on the plaintiffs’ likelihood of success on their claims of preemption. Undoubtedly, Alabama will appeal that injunction to the Court of Appeals for the Eleventh Circuit, but because the Alabama and Arizona state laws differ in their specifics, the Supreme Court’s ruling in the Arizona case is likely not to resolve the issues in the Alabama case. Nonetheless, the Supreme Court has chosen to weigh in on yet another controversial and political topic in an election year.

If the Supreme Court sides with Arizona, not only will it disrupt the federal government’s ability to maintain a uniform and effective federal immigration policy, but potentially millions of hard-working, law-abiding immigrant families with American children will be forced to live in the shadows, or be driven from the states where they have made valuable contributions to the community and the economy.

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