Federal authority over immigration is extensive, the U.S. Supreme Court ruled Monday, leaving little room for states to pass laws on the subject.
The decision struck down three provisions of Arizona’s immigration law and raised questions about the constitutionality of a fourth.
Alabama’s 2011 law includes requirements similar to each of the four provisions considered by the court.
The decision was a defeat for those seeking to expand state authority to keep out undocumented immigrants, Justice Antonin Scalia said in his dissent. Scalia criticized the majority decision for “approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law” and depriving states of their sovereignty.
The majority opinion revolved around the concept of “preemption.” Under the Supremacy Clause of the U.S. Constitution, states may not enact legislation on topics that are covered by federal laws or regulations. The Supreme Court began its analysis by concluding that the federal government “has broad, undoubted power over the subject of immigration and the status of aliens.”
The Supreme Court decision does not address Alabama’s law, but it will affect it. The 11th Circuit Court of Appeals, after preliminarily blocking enforcement of several portions of the Alabama law, said it would await the Supreme Court’s decision on the Arizona law to make a final determination.
The Supreme Court upheld a portion of the Arizona law that required law-enforcement officers to verify the citizenship status of those they suspect to be undocumented. Like the Alabama law, Arizona’s statute only permitted documentation checks of those who were stopped for non-immigration offenses.
In upholding the requirement, Kennedy wrote that it was “inappropriate to assume (the section) will be construed in a way that creates a conflict with federal law.”
Kennedy wrote “the provision likely would survive preemption” if the status checks involved no detention of a suspect beyond that required to process the non-immigration offense.
The ruling, he wrote, could change depending on how Arizona applies the law.
“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” Kennedy wrote.
The other provisions of the Arizona law were unconstitutional on their face, Kennedy wrote, because there was no way state authorities could enforce them in a way that was consistent with federal law.
The court struck down a provision in the Arizona law — also included in the Alabama law — that made it a misdemeanor for immigrants to fail to comply with federal registration requirements. Because Congress has passed extensive laws relating to the obligation of immigrants to register, the states have no authority to pass laws on the topic, Kennedy wrote.
Arizona officials, like Alabama officials, argued that the state requirement that immigrants obtain and carry registration documents was identical to the federal requirement and an appropriate exercise of state power.
The court majority disagreed.
“Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible,” Kennedy wrote.
The court also struck down a provision that makes it a misdemeanor for an unauthorized alien to seek or engage in work in the state. A similar provision is included in the Alabama law. Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees, the court ruled, and the U.S. Constitution prevents states from passing laws that conflict with federal law.
In his dissent, Scalia wrote that the mere fact that Congress did not enact penalties on employees was not the same as a decision that the states should not impose such penalties. The lack of a federal penalty, he wrote, gave the states authority to impose one.
Also ruled unconstitutional was an Arizona provision that allowed police to arrest, without a warrant, a person “the officer has probable cause to believe … has committed any public offense that makes the person removable from the United States.” The Alabama law includes a similar provision.
“As a general rule, it is not a crime for a removable alien to remain present in the United States,” Kennedy wrote.
The court ruled that state officials cannot act as immigration agents without permission from federal authorities. Because the Arizona law did not require such permission, it violated federal law.
While the majority opinion focused on the conflicts between state and federal law, much of Scalia’s dissent questioned the authority of the executive branch to dictate immigration policy. Scalia referenced June 15 news reports on President Barack Obama’s decision to defer deportation of some undocumented immigrants under the age of 30.
For the court majority to say “that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind,” Scalia wrote.
In his dissent, Scalia proposed a test in deciding whether the states are barred from enforcing laws that the federal executive declines to enforce.
“A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test,” Scalia wrote.