Criminal Law Library Blog
CRS Report Number 41221, July 12, 2010, Posted July 23, 2010.
AUTHORS: Michael John Garcia, Kate M. Manuel, Larry M. Eig
SUMMARY (From Official Report)
On April 23, 2010, Arizona enacted S.B. 1070, which is designed to discourage and deter the entry or presence of aliens who lack lawful status under federal immigration law. Potentially sweeping in effect, the measure requires state and local law enforcement officials to facilitate the detection of unauthorized aliens in their daily enforcement activities. The measure also establishes criminal penalties under state law, in addition to those already imposed under federal law, for alien smuggling offenses and failure to carry or complete alien registration documents.Further, it makes it a crime under Arizona law for an unauthorized alien to apply for or perform work in the state, either as an employee or an independent contractor.
The enactment of S.B. 1070 has sparked significant legal and policy debate. Supporters argue that federal enforcement of immigration law has not adequately deterred the migration of unauthorized aliens into Arizona, and that state action is both necessary and appropriate to combat the negative effects of unauthorized immigration. Opponents argue, among other things,
that S.B. 1070 will be expensive and disruptive, will be susceptible to uneven application, and can undermine community policing by discouraging cooperation with state and local law enforcement. In part to respond to these concerns, the Arizona State Legislature modified S.B. 1070 on April 30, 2010, through the approval of H.B. 2162.
Whenever states enact laws or adopt policies to affect the entry or stay of noncitizens, including aliens present in the United States without legal authorization, questions can arise whether Congress has preempted their implementation. For instance, Congress may pass a law to preempt state law expressly. Further, especially in areas of strong federal interest, as evidenced by broad congressional regulation and direct federal enforcement, state law may be found to be preempted implicitly. Analyzing implicit preemption issues can often be difficult in the abstract. Prior to actual implementation, it might be hard to assess whether state law impermissibly frustrates federal regulation. Nevertheless, authority under S.B. 1070, as originally adopted, for law enforcement personnel to investigate the immigration status of any individual with whom they have “lawful contact,” upon reasonable suspicion of unlawful presence, could plausibly have been interpreted to call for an unprecedented level of state immigration enforcement as part of routine policing. H.B. 2162, however, has limited this investigative authority.
Provisions in S.B. 1070 criminalizing certain immigration-related conduct also may be subject to preemption challenges. The legal vulnerability of these provisions may depend on their relationship to traditional state police powers and potential frustration of uniform national immigration policies, among other factors. In addition to preemption issues, S.B. 1070 arguably might raise other constitutional considerations, including issues associated with racial profiling.
Assessing these potential legal issues may be difficult before there is evidence of how S.B. 1070, as modified, is implemented and applied in practice.
As amended, S.B. 1070 is scheduled to go into effect on July 29, 2010. Several lawsuits have been filed challenging the constitutionality of S.B. 1070 and seeking to preliminarily enjoin its enforcement. The U.S. Department of Justice (DOJ) is among those challenging S.B. 1070,
alleging that its provisions, both separately and in concert, are preempted because they exceed states’ roles with respect to aliens, interfere with the federal government’s enforcement of immigration laws, and undermine U.S. foreign policy objectives.
CONCLUSION (From Official Report):
In recent decades, Congress has increasingly focused federal immigration policy on the daily incidents of alien residency. Concomitantly, Congress has enlarged the opportunities for states to become involved in enforcing immigration law. S.B. 1070 is in the vanguard of testing the legal limits of these increased opportunities, though H.B. 2162 modified some of its more legally ambitious efforts. To a large extent, the legal fate of Arizona’s attempts to supplement federal immigration enforcement efforts may depend on how its individual provisions are implemented.
Until then, it may be difficult to determine whether Arizona’s assertion of concurrent authority to affect unauthorized immigration is regarded as complementing federal efforts or as being counterproductive to them. At least some other states and localities that see themselves as heavily impacted by unauthorized immigration likely will join Arizona on any new ground that S.B. 1070 establishes. And this potential for diverse and possibly fragmented immigration enforcement doubtless will be among the many issues considered by the courts as legal challenges to S.B 1070 proceed. Several such challenges have been filed, including one by the DOJ, which seeks to preliminarily enjoin enforcement of S.B. 1070. Among other things, the federal government asserts that S.B. 1070’s provisions, both separately and in concert, “exceed[] a state’s role with respect to aliens, interfere[] with the federal government’s balanced administration of the immigration laws, and critically undermine[] U.S. foreign policy objectives.”137 Attorney General Eric Holder has also reportedly announced that the government could challenge the Arizona law on other grounds if its implementation results in racial profiling.138.
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