Supreme Court to Determine Legality of State-based Immigration Laws

On December 12, the U.S. Supreme Court decided that it would rule on Arizona’s controversial immigration law, SB 1070. The legislation, which gives police the power to enforce immigration laws and requires non-citizens to carry immigration documents, inspired other states to pass similar legislation. The U.S. Justice Department currently has lawsuits against Alabama, Arizona, South Carolina, and Utah. The outcome of the Supreme Court ruling, which will likely be issued in June 2012, could set a precedent for those other state-based immigration laws.

What will the Court decide on when it comes to the Arizona law? Passed in April 2010, Arizona’s SB 1070 seeks a strict, state-based approach to immigration law enforcement. The Justice Department sued to prevent parts of the law from taking effect, and an April 2010 federal appeals court decision blocked those four sections of the law. The first section, 2B, allows police officers to investigate a person’s immigration status if they have “reasonable suspicion” that the person is an undocumented immigrant. Section 3 requires non-citizens to carry immigration documents at all times, and criminalizes the act of failing to apply for registration papers. Section 5 makes it a crime for immigrants without work authorization to “knowingly apply for work, solicit work in a public or private place, or perform work.” Section 6 allows police with probable cause to arrest non-citizens believed to have committed a crime that would lead to deportation. The Supreme Court will rule on these four parts of the law, and could potentially uphold some, all, or none of the measures. But the court will not rule on other contested parts of the law, such as the criminalization of transporting or harboring undocumented immigrants, and allowing state officials and agencies to determine eligibility for public benefits, services, and licenses based on immigration status.

Based on a recent decision, the court could uphold those parts of the law. In May, the Supreme Court upheld the 2007 Legal Arizona Workers Act, which penalizes Arizona businesses that hire undocumented immigrants and revokes state business licenses from offending companies. The judges decided that the 1952 Immigration and Nationality Act allows states to regulate employment verification with licenses. But in the most recent federal appeals court decision on SB 1070, judges firmly opposed the law. Judge Richard Paez accused Arizona of “hijacking” a role delegated to the executive branch, and Judge John T. Noonan said the law was a “challenge and a chilling foretaste of what other states might attempt.”

The test of SB 1070 in the Supreme Court will question state sovereignty over both law and immigration enforcement. Arizona cited in its case petition that blocking SB 1070 “casts constitutional doubt on dozens of statutes enacted by other states.” According to SCOTUS blog, the Obama administration “is treating the case as a test of whether states may adopt their own immigration policies that frustrate specific goals of federal policy.” At stake is the legality of states creating measures to help enforce federal laws, and whether those measures are considered complimentary or overstepping bounds. Arizona Governor Jan Brewer commented on the case, saying, “[It’s] not just about Arizona. It's about every state grappling with the costs of illegal immigration. And it's about the fundamental principle of federalism, under which these states have a right to defend their people.” The decision will not only impact current state legislation, but could also impact bills under consideration; U.S. state legislators introduced 1,607 immigration and refugee-related bills this year, a 15 percent increase from last year.

Alabama would be one of the states impacted by the Court’s decision, since it passed an even more stringent immigration law, HB 56, in June 2011. Like in Arizona, the law allows police to investigate a person’s immigration status, criminalizes the transportation and harboring of undocumented immigrants, and obliges all non-citizens to carry registration documents. But the law goes further. It prohibits undocumented immigrants from receiving local or state benefits and from attending public universities. It requires public school officials to check the immigration status of students in primary and secondary schools. Under the law, landlords cannot rent to undocumented immigrants, and employers cannot hire anyone without work authorization. All businesses, regardless of size, must validate workers’ employment status. Undocumented immigrants are forbidden from applying for jobs, and the law considers it a “discriminatory practice” to refuse to hire or fire a legal resident when an undocumented immigrant is already employed. It requires voters to show proof of citizenship when they register. It even makes it a felony for undocumented immigrants to “enter a business transaction” with the state. The law was blocked by a district court decision in August, but the same court allowed parts of the law to go into effect in September, including police immigration enforcement powers. An October Circuit Court of Appeals decision blocked two parts of the law, including the sections requiring public school students to show immigration documents and criminalizing a lack of immigration papers.

Utah and South Carolina passed similar pieces of legislation in March. In Utah, HB 497 put into place similar law enforcement powers as in Arizona: police can arrest without warrants if they believe a person is an undocumented immigrant, and police must verify the immigration status of suspects arrested for misdemeanors and felonies. It also criminalizes harboring and transporting undocumented immigrants. The law has not yet been implemented, due to a class action suit filed in May and a Justice Department lawsuit in November. The Justice Department also sued to block parts of South Carolina’s SB 20 in October. Furthermore, the law gives police the ability to investigate a suspect’s immigration status and requires all businesses to use the federal government’s E-Verify system in order to employ only legal immigrants. In the South Carolina Justice Department lawsuit, Attorney General Eric Holder argued that “a patchwork of state laws is not the solution and will only create problems.”

In May, Georgia and Indiana followed suit. Georgia passed HB 87, which allows police to arrest suspected undocumented immigrants and criminalizes the transportation and harboring of undocumented immigrants. Businesses with more than 10 employees must adopt the E-Verify system to check new hires’ immigration status. It raises penalties for those who use fake identification to get a job, and requires those applying for public benefits to use a state or federally issued form of identification. The following month, civil rights groups filed a class action suit and a judge subsequently blocked key parts of the law. Indiana passed SEA 590, which allows police to arrest non-citizens without warrants, and makes it illegal for non-citizens to use foreign government-issued ID for identification purposes. It also requires businesses in the state to use E-Verify. A class action suit was filed the same month the law was passed, and a judge suspended parts of the law in June.

Learn More:

• Read an AS/COA Report on the economic impact of local immigration laws.
• See the Legal Action Center’s Guide to lawsuits against state immigration laws .
• Access SCOTUS blog coverage of Arizona v. United States.
• Follow Immigration Impact’s news feed on state and local immigration laws.
• Search the database from the American Civil Liberties Union of civil rights lawsuits against state and local immigration laws.