August 2012 Bar Bulletin
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August 2012 Bar Bulletin

The Law Behind The News

Preemption Limits Arizona Alien Law

By Gene Barton


The headlines on the front page of The Seattle Times on June 26 presented an interesting, if not ironic, contrast. As the banner headline announced the U.S. Supreme Court's ruling in Arizona v. United States, striking down most aspects of that state's immigration law, the feature article appearing below, and which otherwise dominated the front page, bemoaned the lack of available workers to pick Washington's abundant asparagus crop.

What effect Arizona v. United States has on the ability of states such as Washington to attract the much-needed migrant workforce to harvest its fruits and vegetables remains to be seen, given the multiple factors beyond tougher immigration laws that make it more difficult for Latinos to cross the border and stay in this country to work. Nevertheless, the decision, for the most part, does remove one set of potential roadblocks that threatened to make the problem even worse.

Although a unanimous Court upheld one of the Arizona law's most controversial provisions, which, in certain situations, requires police to check the immigration status of those reasonably believed to be in the country illegally, the ruling prevents the state from detaining illegal aliens solely because of their status or prohibiting them from looking for work.1

The decision's legal underpinnings are rooted in the U.S. government's constitutional powers with respect to immigration. As noted by Justice Anthony M. Kennedy, "The question before the Court is whether federal law preempts and renders invalid four separate provisions of the state law."2

More specifically, at issue was the U.S. government's "broad, undoubted power over the subject of immigration and the status of aliens," grounded in the constitutional power to "'establish an uniform Rule of Naturalization' ... and its inherent power as sovereign to control and conduct relations with foreign nations."3

Three provisions of the Arizona law, the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070), fell afoul of this "inherent power." They were:

  • Section 3, which made failure to comply with federal alien registration requirements a state misdemeanor;4
  • Section 5(C), which made it a misdemeanor for an unauthorized alien to seek or engage in work in the state;5 and

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