Patchwork Immigration Laws and Federal Enforcement Priorities

3 Pages Posted: 27 Jun 2012 Last revised: 18 Jul 2012

See all articles by Lauren Gilbert

Lauren Gilbert

St. Thomas University College of Law

Date Written: June 26, 2012

Abstract

Despite predictions that the Supreme Court would uphold some if not all of the challenged provisions of Arizona’s S.B. 1070, on June 25, 2012, the Court struck down three out of four of the provisions challenged by the U.S. government, while indicating that the fourth, § 2(B), the “show me your papers” provision, while not facially unconstitutional, could be subject to an as applied challenge. Despite Arizona’s arguments that the challenged provisions were not preempted because they mirrored federal immigration law, the majority appears to have rejected this theory as well as the notion that Arizona was cooperating in enforcement. Heading off Justice Scalia’s dissent that individual states have the sovereign authority to control their own borders, the Court writes, “It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States be able to confer and communicate on this subject with one national government, not the 50 separate states.” The majority took an almost textbook approach to preemption analysis. In striking down § 3, which made it a state crime to fail to register or carry an alien registration document in violation of federal law, the Court found that the federal government had “occupied the field” of alien registration, thus leaving no room for the states to regulate. In striking down §§ 5(C) and 6, which respectively, made it a state crime to seek or engage in unauthorized employment, and allowed for warrantless arrests of removable aliens, it found that both provisions stood as “obstacle[s] to the accomplishment and execution of the full purposes and objectives of Congress.” While the Court upheld § 2(B) on its face, it indicated that it would raise constitutional difficulties if § 2(B) were utilized to detain individuals solely for the purposes of verifying their immigration status. This updated version provides a chart for thinking about the relationship between Arizona's legislative intent to discourage and deter 1.) unlawful entry, 2.) unlawful presence and 3.) economic activity of undocumented immigrants, and the specific means chosen. The Court’s decision showed surprising deference to the federal government in its making of immigration policy and its enforcement of the immigration laws. It was consistent with the direction in which the federal government has been moving on these issues, including its prosecutorial discretion policy and its decision to grant deferred action to certain undocumented immigrant youth. While the majority recognized Arizona’s frustrations with federal enforcement, it underscored that Arizona may not pursue policies that undermine federal law.

Keywords: immigration, S.B. 1070, preemption, prosecutorial discretion, copycat laws

Suggested Citation

Gilbert, Lauren, Patchwork Immigration Laws and Federal Enforcement Priorities (June 26, 2012). Available at SSRN: https://ssrn.com/abstract=2093486 or http://dx.doi.org/10.2139/ssrn.2093486

Lauren Gilbert (Contact Author)

St. Thomas University College of Law ( email )

16401 NW 37th Ave.
Miami Gardens, FL 33054
United States
305-623-2386 (Phone)

HOME PAGE: http://www.stu.edu/law/faculty-staff/faculty/lauren-gilbert.html

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
121
Abstract Views
795
Rank
417,019
PlumX Metrics