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Ninth Circuit Affirms Lower Court Decision Striking Down Key Portions of S.B. 1070, Arizona Immigration Law

by Professor Will Huhn on April 17, 2011

in Constitutional Law,Immigration Law,Wilson Huhn

On Monday April 11 in the case of United States v. Arizona the Ninth Circuit Court of Appeals affirmed the decision of a federal district court that had declared four provisions of S.B. 1070, the Arizona immigration statute, unconstitutional.

This decision of the Court of Appeals should not have come as a surprise.  Any statute that is popularly referred to as a "state immigration law" is in trouble.  Several provisions of the Constitution withdraw power from the states over anything having to do with foreign countries.  The Constitution gives the federal government exclusive power to enter into treaties, receive ambassadors, and wage war.  Article I, Section 3 grants Congress the power to "regulate commerce with foreign nations," and Article I, Section 4 grants Congress the power to "establish an uniform law of naturalization."  Nevertheless, Arizona adopted this law and defended it in this legislation. 

Nine months ago federal district court Judge Susan Bolton issued a ruling striking down four important provisions of the Arizona law for being in conflict with federal law.  Her decision is described in Key Portions of Arizona Immigration Law Struck Down by Federal Court that I posted July 30.  Earlier this week the Ninth Circuit upheld her decision on all counts.  The 83-page decision by the Court of Appeals may be found here.

The four provisions of the Arizona statute under consideration in this case were Sections 2(B), 3, 5(C) and 6 of S.B. 1070.  Normally there is a presumption in favor of the constitutionality of state laws and against federal preemption.  However, in determining the constitutionality of these laws the Court of Appeals noted that immigration law is not a âfield which the States have traditionally occupied."   Accordingly, ruled the court, there would be no presumption against preemption in this case.

The first provision considered by the Court is Section 2(B) of S.B. 1070 that required state law enforcement officers to determine the citizenship of every person whom they arrest, and which stated that such a person would be presumed to be a United States citizen if in possession of a valid Arizona drivers license or Arizona identification card.  The Court of Appeals concluded that the state law conflicted with provisions of federal law regulating the conditions under which state law enforcement officials could be required to enforce federal immigration law.  Specifically, the Court found:

Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney Generalâto whom Congress granted discretion in determining the precise conditions and direction of each state officerâs assistance. … Through Section 2(B), Arizona has enacted a mandatory and systematic scheme that conflicts with Congressâ explicit requirement that in the â[p]erformance of immigration officer functions by State officers and employees,â such officers âshall be subject to the direction and supervision of the Attorney General.â

In addition, by specifying precisely how state and local police were to enforce federal immigration law, the State of Arizona was infringing on the power of federal officials to determine how the law should be enforced.  The Court stated:

Furthermore, the mandatory nature of Section 2(B)âs immigration status checks is inconsistent with the discretion Congress vested in the Attorney General to supervise and direct State officers in their immigration work according to federally-determined priorities. 

Accordingly, the Court of Appeals ruled that Section 2(B) of the Arizona statute "stands as an obstacle" to the intent of Congress, and was therefore preempted.

The Court of Appeals also struck down Section 3 of the Arizona statute that "essentially makes it a state crime for unauthorized immigrants to violate federal registration laws."  The Court of Appeals quoted the Supreme Court in stating that where Congress has enacted a comprehensive federal plan of regulation, the states may not supplement it with additional regulations:

where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, consistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.â

The Court found that Section 3 of the Arizona law unconstitutionally interferes with the federal law.

Section 5(C) of the Arizona law made it a criminal offense punishable by six months in jail for an undocumented alien to apply for work or to work within the state either as an employee or independently.   Federal law does not punish undocumented aliens for working – it punishes employers  who hire them.  Federal law is intended to prevent the exploitation of undocumented workers – not punish them.  The Court of Appeals stated that both the text and legislative history of the federal law:

demonstrates Congressâ intent to protect unauthorized immigrant workers from financial exploitationâa burden less severe than incarceration.

The Court added:

In the context of unauthorized immigrant employment, Congress has deliberately crafted a very particular calibration of force which does not include the criminalization of work.

Section 6 of the Arizona law authorizes state and local police to make warrantless arrests of undocumented aliens.  The state statute provides:

â[a] peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States.â

Under federal law, however, state and local police may make a warrantless arrest of undocumented aliens only after they have committed a felony and only after checking with the federal government to make sure that the person is unlawfully within the United States.  In fact, the Arizona law authorizes Arizona police to make warrantless arrests of undocumented aliens in more circumstances than federal law authorizes federal agents to act.  The Court of Appeals held:

Section 6 interferes with the carefully calibrated scheme of immigration enforcement that Congress has adopted ….

Finally, the Court of Appeals also found that the foregoing provisions of S.B. 1070 have "had a deleterious effect on the United Statesâ foreign relations."  The Court noted that the Supreme Court had previously ruled that state laws that "threaten" to have "incidental effects" that are inconsistent with the foreign policy of the United States may be struck down – and the Court found that S.B. 1070 goes much further:

The record before this court demonstrates that … Arizonaâs law has created actual foreign policy problems of a magnitude far greater than incidental.  Thus far, the following foreign leaders and bodies have publicly criticized Arizonaâs law: The Presidents of Mexico, Bolivia, Ecuador, El Salvador, and Guatemala; the governments of Brazil, Colombia, Honduras, and Nicaragua; the national assemblies in Ecuador and Nicaragua and the Central American Parliament; six human rights experts at the United Nations; the Secretary General and many permanent representatives of the Organization of American States; the Inter-American Commission on Human Rights; and the Union of South American Nations.

The message is clear.  However threatened the State of Arizona may feel by the presence of undocumented aliens within its borders, under the Constitution the state does not have the power to establish the foreign policy or immigration policy of the United States. 

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn:

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