State Efforts to Deter Unauthorized Aliens:
Legal Analysis of Arizona’s S.B. 1070
Kate M. Manuel
Legislative Attorney
Michael John Garcia
Legislative Attorney
Larry M. Eig
Specialist in American Public Law
September 14, 2010
Congressional Research Service
7-5700
www.crs.gov
R41221
CRS Report for Congress
P
repared for Members and Committees of Congress
State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
Summary
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.
S.B. 1070, as amended, was scheduled to go into effect on July 29, 2010. However, the U.S.
Department of Justice filed suit seeking to preliminarily enjoin the enforcement of certain
sections of S.B. 1070 on the grounds that they are preempted. On July 28, 2010, a federal district
court enjoined Arizona from enforcing those provisions of S.B. 1070 pertaining to immigration
status determinations during lawful stops, detentions, or arrests; failure to apply for or carry alien
registration papers; the solicitation or performance of work by unauthorized aliens; and
warrantless arrests for certain public offenses. Enforcement of other provisions of S.B. 1070 was
not enjoined. Arizona has appealed the district court’s decision.
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
Contents
I. Background ............................................................................................................................. 2
II. Major Provisions of S.B. 1070, As Modified........................................................................... 4
III. Overview of Preemption........................................................................................................ 7
State Enforcement of Immigration Law Under Section 2 ....................................................... 9
Sharing of Immigration Status Information Between Government Entities....................... 9
Detection of Unauthorized Aliens By State and Local Law Enforcement under
Section 2.................................................................................................................... 10
Authorization of Private Suits in Response to State or Local Limitations on
Enforcement of Immigration Law .............................................................................. 14
Warrantless Arrests of Persons Who Have Committed a Criminal Offense Making
Them Deportable ....................................................................................................... 15
Criminalization of Immigration-Related Conduct ................................................................ 16
Criminalizing the Hiring of Persons Picked Up Along Roadways .................................. 17
Criminalizing Alien Smuggling Activities ..................................................................... 18
Criminalizing Violations of Federal Alien Registration Requirements............................ 23
Criminalizing the Solicitation or Performance of Work by Unauthorized Aliens............. 26
IV. Racial Profiling Issues ......................................................................................................... 29
V. Conclusion............................................................................................................................ 30
Contacts
Author Contact Information ...................................................................................................... 31
Acknowledgments .................................................................................................................... 31
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
n April 23, 2010, Arizona enacted legislation (commonly referred to as S.B. 1070)
intended
O to make attrition through enforcement the public policy of all state and local government
agencies in Arizona. The provisions of this act are intended to work together to discourage
and deter the unlawful entry and presence of aliens and economic activity by persons
unlawfully present in the United States.1
By so doing, Arizona arguably placed itself in the vanguard of recent attempts to test the legal
limits of greater state involvement in immigration enforcement, and prompted significant debate
regarding the desirability and effectiveness of S.B. 1070 and similar state or local measures.
Supporters of S.B. 1070 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 some of these concerns, the Arizona State Legislature
modified S.B. 1070 on April 30, 2010, through the approval of H.B. 2162 (unless otherwise
specified, references to S.B. 1070 in this report refer to the version amended by H.B. 2162).
Following the enactment of S.B. 1070 but prior to its scheduled date to go into effect (July 29,
2010),2 the U.S. Department of Justice (DOJ) and a number of private entities filed separate
lawsuits challenging the legislation. The central argument made by the petitioners was that
aspects of S.B. 1070, both separately and in conjunction, are preempted by federal law and are
therefore unenforceable.3
On July 28, 2010, Judge Susan Bolton of the U.S. District Court for the District of Arizona issued
a preliminary ruling in the DOJ’s suit challenging S.B. 1070. Pending a final ruling on the case,
Judge Bolton issued a preliminary injunction barring Arizona from enforcing certain provisions of
S.B. 1070 pertaining to immigration status determinations during stops, detentions, or arrests by
state law enforcement; the imposition of state criminal penalties for certain violations of federal
alien registration requirements; the criminalization of the solicitation or performance of work by
unlawfully present aliens; and the authorization of state law enforcement to make warrantless
arrests for public offenses which constitute grounds for deportation under federal immigration
law.4 However, the district court did not enjoin other provisions of S.B. 1070 from taking effect,
including provisions allowing legal residents of Arizona to bring suit to challenge state or local
policies that restrict enforcement of federal immigration laws and provisions criminalizing
1 The text of S.B. 1070, as amended by H.B. 2162, can be viewed at http://www.azleg.gov/alispdfs/council/SB1070-
HB2162.PDF.
2 Under the Arizona Constitution, acts approved by the legislature do not become operative until 90 days after the close
of the legislative session during which they were passed. ARIZ. CONST. art. 4, § 1(3).
3 United States v. Arizona, No. CV-10-1413, Complaint (D. Ariz. filed July 6, 2010), available at
http://www.justice.gov/opa/documents/az-complaint.pdf [hereinafter “Arizona Complaint”]; Plaintiff’s Motion for a
Preliminary Injunction and Memorandum of Law in Support Thereof (D. Ariz. filed July 6, 2010) [hereinafter
“Plaintiff’s PI Motion”], available at http://www.justice.gov/usao/az/press_releases/2010/
Arizona%20PI%20Brief%20(2).pdf. Besides the federal government, several other entities also brought suit
challenging S.B. 1070. See, e.g., Friendly House v. Whiting, No. CV 10-1061, Complaint (D. Ariz., filed May 17,
2010), available at http://www.aclu.org/files/assets/az_sb1070_complaint_20100517.pdf.
4 See United States v. Arizona, 703 F.Supp.2d 980, 987 (D. Ariz. 2010).
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
activities related to the transportation or harboring of unlawfully present aliens.5 A final ruling on
the merits of the government’s challenge is still pending,6 as is Arizona’s appeal of the district
court’s decision to the U.S. Court of Appeals for the Ninth Circuit.7
This report discusses S.B. 1070 and some of the notable preemption issues raised by some of its
provisions. Where relevant, it examines the district court’s ruling that the federal government is
likely to succeed on the merits of its arguments that certain sections of S.B. 1070 are preempted
by federal law. It also discusses other preemption issues potentially raised by S.B. 1070 or similar
legislation, including some issues that were not expressly addressed by the district court in its
preliminary ruling. It should be noted that the district court’s preliminary injunction is not the
final word as to the constitutionality of S.B. 1070 or similar measures which may be
contemplated in other states. It is possible that the district court could analyze the preemption
issues raised by S.B. 1070 differently when it issues its final ruling as to the merits of the
government’s challenge. Further, the Ninth Circuit could potentially approach the preemption
issues differently than the lower court when it considers the case on appeal. Moreover, if
legislation similar to S.B. 1070 is enacted in another jurisdiction and subsequently faces legal
challenge, it is possible that a reviewing court would assess the relevant legal issues differently
than the courts currently considering the constitutionality of S.B. 1070.
I. Background
The foreign born population of the United States has grown rapidly from the 1980s onward. A
significant component of this population, an estimated 28% in 2009,8 resides in the United States
without legal authorization, either as a result of fraudulent or surreptitious entry or of overstaying
nonimmigrant visas that had allowed their temporary presence in the country. In 1986,
approximately 3 million unauthorized aliens resided in the United States. By 2006, the estimated
number of unauthorized aliens had more than tripled.9
5 See Arizona, 703 F.Supp.2d at 987 (listing those sections of S.B. 1070 that the federal government did not seek to
preliminarily enjoin); id. at 1000, 1003-1004 (finding the United States is not likely to succeed on its claim that
sections of S.B. 1070 relating to alien smuggling are preempted by federal law).
6 A motion for a preliminary injunction is granted when, inter alia, the plaintiff has shown likelihood of success on the
merits and would suffer irreparable harm if the injunction is not granted. See, e.g., Winter v. NRDC, Inc.,—U.S.—-,
129 S. Ct. 365, 374 (2008). However, a likelihood of irreparable harm can generally be easily shown where “an alleged
constitutional infringement” is involved. Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997). See also
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992) (stating that a federal court may enjoin “state officers
who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties
affected an unconstitutional act, violating the Federal Constitution”) (internal citations omitted); Chamber of
Commerce of the United States v. Edmondson, 594 F.3d 742, 771 (10th Cir. 2010) (suggesting that irreparable injury is
an inherent result of the enforcement of a state law that is preempted on its face).
7 See, e.g., SB 1070: Appeal Seeks to Reinstate All Parts of Arizona Law, Christian Science Monitor, July 29, 2010,
available at http://www.csmonitor.com/USA/Justice/2010/0729/SB1070-appeal-seeks-to-reinstate-all-parts-of-
Arizona-law. Arizona sought expedited review of its appeal by the Ninth Circuit, but this motion was denied. See
Circuit Court Denies Motion to Expedite Appeal in AZ SB 1070 Case, AILA InfoNet, Aug. 2, 2010, available at
http://www.aila.org/content/default.aspx?docid=32544.
8 Jeffrey S. Passel & D’Vera Cohn, Pew Hispanic Center, U.S. Unauthorized Immigration Flows Are Down Sharply
Since Mid-Decade, at iv (Sept. 1, 2010). Recent estimates suggest that both the migration and overall population of
unauthorized aliens residing in the United States have decreased to mid-decade levels. See id. at 3.
9 See CRS Report RL33874, Unauthorized Aliens Residing in the United States: Estimates Since 1986, by Ruth Ellen
Wasem.
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As the population of unauthorized aliens grew, several impacted states sued the federal
government to recover the costs of benefits and services they were required to provide
unauthorized aliens because of the alleged failure of the federal government to enforce
immigration law adequately. These lawsuits failed.10 Meanwhile, many jurisdictions throughout
the country have sought to deter the presence of unauthorized aliens and reduce attendant costs
through a variety of enforcement measures of their own.11
As a legal matter, states have inherent “police powers” to promote and regulate safety, health,
welfare, and economic activity within their respective jurisdictions. The exercise of state police
powers may be limited by the rights owed to individuals under the Constitution. Moreover, these
powers can be affected by assertions and delegations of federal authority, which may change over
time. When they do, state powers can be concomitantly restricted or expanded. Beginning in the
1970s, federal legislation on aliens more frequently regulated the incidents of daily life of
noncitizens, lawful and unlawful. Prime examples include rules on noncitizen access to public
benefits and programs, and sanctions against employers who hire unauthorized workers. To some
degree, new federal restrictions crowded out concurrent state regulation. At the same time,
however, the push by Congress to regulate the stay of aliens in the United States more
comprehensively also included, particularly in two statutes enacted in 1996,12 increased authority
for the states to mirror federal benefit restrictions and cooperate with immigration enforcement
generally.
Laws like Arizona’s S.B. 1070, even as modified by H.B. 2162, appear to test the legal limits of a
trend toward greater state involvement. Nevertheless, not all jurisdictions have reacted similarly
in responding to the influx of unauthorized aliens and the perception of growing state and local
authority to react to it. At the one end of the spectrum, some jurisdictions (occasionally referred to
as “sanctuary cities”) have been unwilling to assist the federal government in enforcing measures
that distinguish between legal and non-legal residents of the community, and, in some cases, have
actively opposed providing assistance to federal enforcement efforts.13 Moving toward the middle
of the spectrum, some states and localities communicate with federal immigration enforcement
officers under limited circumstances (e.g., after arresting an unauthorized alien for a criminal
offense), but for various reasons do not take a more active role in deterring illegal immigration.
At the other end of the spectrum are jurisdictions, like Arizona, that have actively sought to deter
the presence of unlawfully present aliens within their territory. Some of these jurisdictions have
assisted federal authorities in apprehending and detaining unauthorized aliens, including under
written agreements with federal immigration authorities made under § 287(g) of the Immigration
and Nationality Act (INA).14 More controversially, some states and localities have considered,
10 E.g., Texas v. United States, 106 F.3d 661 (5th Cir. 1997); Chiles v. United States, 874 F. Supp. 1334 (S.D. Fla.
1994).
11 According to one commentator, a total of 1,562 bills on illegal immigration were introduced in the 50 state
legislatures in 2007, 240 of which were enacted into law. Kris W. Kobach, Reinforcing the Rule of Law: What States
Can and Should Do to Reduce Illegal Immigration, 22 GEO. IMM. L.R. 459, 459 (2008).
12 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), P.L. 104-208, Division C; Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), P.L. 104-193.
13 The federal government has taken steps to eliminate sanctuary policies. Pursuant to PRWORA § 434 and IIRIRA
§ 642, states and localities may not limit their governmental entities or officers from maintaining records regarding a
person’s immigration status, or bar the exchange of such information with any federal, state, or local entity. For further
discussion, see CRS Report RS22773, “Sanctuary Cities”: Legal Issues, by Michael John Garcia.
14 8 U.S.C. § 1101, et seq. INA § 287(g) authorizes the Secretary of Homeland Security to enter
(continued...)
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
and in a few cases enacted, measures intended to deter the presence of aliens who are in the
United States without legal authorization, including by limiting access to housing, employment,
or municipal services.15
II. Major Provisions of S.B. 1070, As Modified
Section 1 of S.B. 1070 declares that the provisions of the legislation are “intended to work
together to discourage and deter the unlawful entry and presence of aliens and economic activity
by persons unlawfully present in the United States.”16 It further declares the intent to establish a
state-wide policy of “attrition through enforcement.” 17 “Attrition through enforcement” has been
described by some observers as an approach to deter unlawful migration and encourage the
compelled or voluntary exit of unlawfully present aliens through the “steady, across-the-board
enforcement of our immigration laws.”18 This approach is most often associated with more
vigorous and efficient implementation of employer sanctions, improved recordkeeping and more
secure documents, and other measures to make current law more effective. It can also imply
better cooperation between the states and federal immigration authorities, and the adoption of
state and local laws that discourage the presence of unauthorized aliens.19
These objectives are reflected in the major provisions of S.B. 1070, which can arguably be
characterized as falling into two categories: (1) those provisions that seek to bolster direct
enforcement of federal immigration law, including through the identification and apprehension of
aliens who are unlawfully present in the United States, by state and local law enforcement; and
(2) those provisions that criminalize conduct which may facilitate the presence of unauthorized
aliens within Arizona. Sections 2 and 6 of S.B. 1070 can be characterized as falling within the
former category, while Sections 3-5 fall within the latter.
Section 2 of S.B. 1070 directs state and local law enforcement officers and agencies, whenever
making a lawful stop, detention, or arrest pursuant to the enforcement of state or local laws, to
make a reasonable attempt whenever practicable to determine the person’s immigration status, if
there is reasonable suspicion to believe the person is an alien who is unlawfully present in the
(...continued)
a written agreement with a State, or any political subdivision of a State, pursuant to which an
officer or employee of the State or subdivision, who is determined … to be qualified to perform a
function of an immigration officer in relation to the investigation, apprehension, or detention of
aliens in the United States (including the transportation of such aliens across State lines to detention
centers), may carry out such function at the expense of the State or political subdivision and to the
extent consistent with State and local law.
8 U.S.C. § 1357(g)(1). INA § 287(g)(10) further provides that this section does not require the existence of such an
agreement in order for a state or local entity to “cooperate with … [federal immigration authorities] in the
identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U.S.C.
§ 1357(g)(10).
15 See generally CRS Report RL34345, State and Local Restrictions on Employing, Renting Property to, or Providing
Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments, by Jody Feder and Alison M. Smith.
16 S.B. 1070, § 1.
17 Id.
18 CRS Report R41207, Unauthorized Aliens in the United States, by Andorra Bruno, at 12 (quoting Mark Krikorian,
Attrition by Enforcement is the Best Course of Action, SPARTANBURG (S.C.) HERALD-JOURNAL (Sept. 30, 2007)).
19 Id. at 12-13.
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
country.20 A person is presumed not to be an unlawfully present alien if he can provide specified
documentation, such as an Arizona driver’s license.21 An attempt to determine status need not be
made if it would hinder or obstruct an investigation.22 The immigration status of a person who is
arrested must be determined before the person is released.23 In implementing these provisions,
law enforcement officials “may not consider race, color, or national origin” except to the extent
permitted by the U.S. or Arizona Constitution.24 Section 2 further mandates that the U.S.
Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) be
notified when an unlawfully present alien who has been convicted of a crime is released from
prison or is assessed a monetary penalty.25 Additionally, S.B. 1070 authorizes state and local law
enforcement officials to transport unlawfully present aliens in their custody to a federal facility.26
Section 2 also prohibits restrictions upon state or local officials or agencies sending, receiving,
exchanging, or maintaining information relating to the immigration status of an individual for the
purpose of determining eligibility for public services or benefits, verifying domicile or residence,
or determining whether a person is in compliance with federal alien registration laws.27 It further
provides that any legal resident of Arizona may bring suit to challenge any state or local policy
that restricts the enforcement of federal immigration laws to less than the full extent permitted by
federal law.28
Section 3 criminalizes some activities currently proscribed by federal immigration laws. If a
person violates 8 U.S.C. §§ 1304(e) or 1306(a),29 he will also be guilty of the state crime of
“willful failure to complete or carry an alien registration document.”30 Modifications by H.B.
20 S.B. 1070, § 2, as amended by H.B. 2162, § 3. Before being modified by H.B. 2162, S.B. 1070 also called for law
enforcement to inquire into the immigration status of any person with whom they had “lawful contact,” upon
reasonable suspicion that the person was an unlawfully present alien. This language appeared to encompass a far wider
range of interactions than the modified provision. See S.B. 1070, § 2 (as originally enacted).
21 S.B. 1070, § 2.
22 Id.
23 Id. There is some ambiguity as to how this provision is to be construed in light of the provision requiring
immigration status determinations during lawful stops, detentions, or arrests. On one hand, these provisions could be
read separately, meaning that all arrested persons would need to have their immigration status verified prior to release.
On the other hand, reading these provisions in conjunction might support an interpretation of more limited scope.
Under this more narrow interpretation, Arizona law enforcement officers are generally required to inquire into the
immigration status of persons who are stopped, detained, or arrested whenever they have reasonable suspicion to
believe such persons are unlawfully present aliens. However, persons who were stopped or detained may be released
from custody pending verification of their immigration status with federal authorities, while those who have been
arrested may not be released until their status has been verified. The federal district court reviewing S.B. 1070 believed
the former interpretation to be the intended version. Arizona, 703 F.Supp.2d at 994.
24 S.B. 1070, § 2, as amended by H.B. 2162, § 3. Prior to amendment by H.B. 2162, the act provided that race, color, or
national origin could not be the “sole factor” for determining reasonable suspicion, except to the extent authorized by
the U.S. or Arizona Constitution.
25 Id.
26 Id.
27 Id.
28 Id., § 2, as amended by H.B. 2162, § 3. Prior to being modified by H.B. 2162, S.B. 1070 had authorized residents to
bring suits to challenge state and local practices, as well.
29 8 U.S.C. § 1304(e) mandates that every alien over the age of 18 carry any certificate of alien registration or alien
registration receipt card issued to him, and makes failure to comply a misdemeanor offense. 8 U.S.C. § 1306(a) makes
it a misdemeanor offense for an alien who is required to apply for registration and be fingerprinted to willfully fail or
refuse to do so.
30 S.B. 1070, § 3.
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2162 eliminated the penalty structure under S.B. 1070 for alien registration violations, which
would have made these offenses felonies in certain circumstances, and substituted a provision
making all violations misdemeanors.31 This section does not apply with respect to aliens who
maintain authorization from the federal government to remain in the United States.32
Sections 4 and 5 of S.B. 1070 address activities relating to the transport and harboring of
unlawfully present aliens. Section 4 modifies a preexisting Arizona statute addressing alien
smuggling, but this amendment does not alter the earlier statute’s substantive scope.33 More
significantly, Section 5 adds a new criminal statute prohibiting alien smuggling-related activities,
when such activities are committed by a person who is also in violation of another criminal
offense. Specifically, Section 5 imposes criminal penalties upon the transport of an alien within
the state in furtherance of the alien’s illegal presence in the United States, when done with
knowledge or in reckless disregard of the alien’s unauthorized status.34 Harboring an alien or
encouraging an alien to come to or reside in Arizona with knowledge or in reckless disregard of
the fact that the alien’s presence is in violation of the law is also prohibited.35 Further, vehicles
used in committing an offense under the new smuggling statute are subject to mandatory
immobilization or impoundment.36
Section 5 also makes it an Arizona crime for an unlawfully present alien to apply for or solicit
work in the state, or work as an employee or an independent contractor in the state.37 Separately,
it is unlawful for an occupant of a motor vehicle that is stopped on a roadway to pick up and hire,
or attempt to hire, passengers for work at a different location, if the motor vehicle blocks or
impedes the normal movement of traffic.38 Section 5 also makes it unlawful for a person to enter
the motor vehicle in such circumstances, in order to be hired by the vehicle’s occupant.39
Section 6 further authorizes officers to make an arrest without a warrant if they have probable
cause to believe the person to be arrested has committed any “public offense” that makes the
person removable from the United States.40 Arizona law elsewhere defines a “public offense” as
any “conduct for which a sentence to a term of imprisonment or of a fine is provided by any law
of the state in which it occurred,” and, if the act occurred outside Arizona, would have been
punishable under Arizona law if it had occurred in the state.41
31 Id., as amended by H.B. 2162, § 4.
32 Id.
33 Specifically, S.B. 1070 provides that in the enforcement of the earlier smuggling statute, ARIZ. REV. STAT. § 13-2319,
a law enforcement officer is authorized to stop any person operating a motor vehicle if the officer has reasonable
suspicion that the person violated a civil traffic law. S.B. 1070, § 4.
34 S.B. 1070, § 5.
35 Id.
36 Id.
37 Id.
38 Id.
39 Id.
40 Id., § 6. See generally CRS Report RL32480, Immigration Consequences of Criminal Activity, by Michael John
Garcia (discussing criminal activity making an alien removable).
41 ARIZ. REV. STAT. § 13-105(26) (2009).
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III. Overview of Preemption
The central issue that has been raised in litigation challenging S.B. 1070 concerns whether its
major provisions are preempted by federal law. The doctrine of preemption derives from the
Supremacy Clause of the Constitution, which establishes that federal law, treaties, and the
Constitution itself are “the supreme Law of the Land.”42 Thus, one essential aspect of the federal
structure of government is that states can be precluded from taking actions that are otherwise
within their authority if federal law is thereby thwarted. “States cannot, inconsistently with the
purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce
additional or auxiliary regulations.”43 An act of Congress may preempt state or local action in a
given area in any one of three ways: (1) the statute expressly states preemptive intent (express
preemption); (2) a court concludes that Congress intended to occupy the regulatory field,44
thereby implicitly precluding state or local action in that area (field preemption); or (3) state or
local action directly conflicts with or otherwise frustrates the purpose of the federal scheme
(conflict preemption).45 The delineation between these categories, particularly between field and
conflict preemption, is not rigid.46
The power to set rules for which aliens may enter and remain in the United States is undoubtedly
federal, and the breadth and detail of regulation Congress has established in the INA47 precludes
substantive state regulation concerning which noncitizens may enter or remain. Nevertheless, the
Supreme Court has never held that “every state enactment which in any way deals with aliens is a
regulation of immigration and thus per se pre-empted by this constitutional power, whether latent
or exercised.”48 In the 1976 case of De Canas v. Bica, the Court held that state regulation of
matters within their jurisdictions that were only tangentially related to immigration would,
“absent congressional action[,] ... not be an invalid state incursion on federal power.”49 The Court
further indicated that field preemption claims against state action that did not conflict with federal
law could only be justified when the “complete ouster of state power ... was the clear and
manifest purpose of Congress.”50 Still, the De Canas Court recognized that, even in situations
42 U.S. CONST. art. VI, cl. 2.
43 Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941) (internal citations omitted).
44 Congressional intent to “occupy the field” to the exclusion of state law can be inferred when “[1] the pervasiveness
of the federal regulation precludes supplementation by the States, [2] where the federal interest in the field is
sufficiently dominant, or [3] where the object sought to be obtained by the federal law and the character of obligations
imposed by it ... reveal the same purpose.” Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988) (internal
quotations omitted).
45 See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000); English v. Gen. Elec. Co., 496 U.S. 72,
78-79 (1990); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248-49 (1984); Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n, 461 U.S. 190, 203-04 (1983).
46 See English, 462 U.S. at 79 n.5 (“By referring to these three categories, we should not be taken to mean that they are
rigidly distinct. Indeed, field pre-emption may be understood as a species of conflict pre-emption: A state law that falls
within a pre-empted field conflicts with Congress’ intent (either express or plainly implied) to exclude state
regulation.”); Crosby, 530 U.S. at 373 n.6.
47 8 U.S.C. § 1101, et seq.
48 De Canas v. Bica, 424 U.S. 351, 355 (1976). Indeed, during the nineteenth century, when federal regulation of
immigration was far more limited in scope, state legislation limiting the rights and privileges of certain categories of
aliens was common. See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM.
L. REV. 1833 (1993). Many of these restrictions would now be preempted by federal immigration law.
49 De Canas, 424 U.S. at 356.
50 Id. at 357.
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where federal immigration law “contemplates some room for state legislation,” a state measure
might nonetheless be unenforceable on conflict preemption grounds if it “stands as an obstacle to
the accomplishment and execution of the full purposes and objectives of Congress in enacting the
INA.”51
A separate but somewhat related legal issue concerns the authority of states and localities to
directly enforce provisions of the INA, including by investigating and making arrests for criminal
and civil violations of federal immigration law. As a general matter, it appears well established
that states have at least implicit authority to make arrests for violations of federal law, unless the
nature or purpose of the federal regulatory scheme precludes state action.52 Historically, the
authority for state and local law enforcement officials to enforce immigration law has been
construed to generally be limited to certain criminal provisions of the INA.53 By contrast, the
enforcement of the civil provisions, including the apprehension and removal of deportable aliens,
has been viewed as a federal responsibility, with states and localities preempted from playing
more than an incidental supporting role, except to the extent specifically authorized by federal
law.54
For the first several decades following the INA’s enactment, the prevailing assumption appears to
have been that the INA’s deportation provisions constituted a pervasive and preemptive regulatory
scheme under which state and local enforcement was preempted.55 Then in the 1980s and 1990s,
some jurisdictions that were heavily impacted by immigration grew more insistent in
characterizing federal enforcement of federal immigration law as inadequate. In part to address
these concerns, Congress included authority in the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) for the Attorney General (now the Secretary of Homeland
Security) to enter into cooperative agreements with states and localities under which trained state
and local law enforcement officers can, under federal supervision and subject to federal direction,
perform certain functions relative to the investigation, apprehension, or detention of unlawful
aliens to the extent permitted by state or local law.56 The enacted version of this measure was
significantly narrower than some of those considered (a House-passed version, for example,
would have authorized agreements permitting states to carry out all deportation functions,
51 Id. at 363 (internal quotations omitted). See also Crosby, 530 U.S. at 373 (2000) (quoting Hines, 312 U.S. at 67). De
Canas concerned a California statute that imposed sanctions on employers who hired unlawful aliens if that
employment adversely affected lawful workers. When Congress added federal employer sanctions to the INA in 1986,
it expressly preempted state or local laws that sanctioned employers (other than through licensing or similar laws) for
hiring unauthorized workers. See INA § 274a(h)(2), 8 U.S.C. § 1324a(h)(2).
52 See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963) (“The principle to be derived
from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state
regulatory power in the absence of persuasive reasons—either that the nature of the regulated subject matter permits no
other conclusion, or that the Congress has unmistakably so ordained.”); Gonzales v. City of Peoria, 722 F.2d 468, 473
(9th Cir. 1983) (“The general rule is that local police are not precluded from enforcing federal statutes.”), overruled on
other grounds, Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999).
53 Gonzalez, 722 F.2d at 474-75 (9th Cir. 1983). See also Dept. of Justice, Office of Legal Counsel, Assistance by State
and Local Police in Apprehending Illegal Aliens, 20 Op. O.L.C. 26, 1996 WL 33101191 at *4-6 (Feb. 5, 1996)
[hereinafter “1996 OLC Opinion”]; Jeff Lewis, et al., Authority of State and Local Officers to Arrest Aliens Suspected
of Civil Infractions of Federal Immigration Law, 7 BENDER’S IMMIGRATION BULLETIN No. 15, at 944 (Aug. 1, 2002).
54 For further discussion, see CRS Report R41423, Authority of State and Local Police to Enforce Federal Immigration
Law, by Michael John Garcia and Kate M. Manuel.
55 Gonzalez, 722 F.2d at 474-75. See also 1996 OLC Opinion, supra footnote 53, 1996 WL 33101191, at *13-*16;
Lewis, supra footnote 53, at 944.
56 IIRIRA, P.L. 104-208, Div. C, § 133, adding INA § 287(g), 8 U.S.C. § 1357(g).
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including prosecution, adjudication, and physical removal57), but all of the proposals that were
seriously considered seem to have reflected a perception that, absent a cooperative arrangement
with federal authorities, states and localities would play at most a secondary and supportive role
in the enforcement of the civil provisions of the INA.
But a restrictive view of a state and local role in the enforcement of immigration law may be
changing. In 2002, the Office of Legal Counsel (OLC) within the DOJ issued a memorandum
which concluded that “federal law did not preempt state police from arresting aliens on the basis
of civil deportability,” and it withdrew the advice of a 1996 OLC opinion which had suggested
otherwise.58 Additionally, a series of cases decided by the Tenth Circuit variously drew no
distinction between the criminal and civil provisions of the INA in relation to state and local
enforcement authority, or alluded to the “implicit authority” or the “general investigatory
authority” of the states to engage in civil immigration enforcement activities.59
State Enforcement of Immigration Law Under Section 2
Much of the attention surrounding S.B. 1070 has centered on Section 2 of the enactment. As
discussed previously, Section 2 requires state and local law enforcement officials to facilitate the
detection of unauthorized aliens in their daily enforcement activities, presumably so that these
aliens may be transferred to federal custody for removal. This requirement was challenged in the
DOJ’s suit against Arizona, and the presiding district court judge has issued a preliminary
injunction barring its enforcement pending a final decision on the merits of the federal
government’s challenge. Other aspects of Section 2 were neither challenged by the DOJ nor
enjoined by the district court judge, including the provision concerning the sharing of
immigration-related information by state and local authorities, as well as the provision
authorizing Arizona residents to bring suit challenging state or local policies which limit the
enforcement of federal immigration law.
Sharing of Immigration Status Information Between Government Entities
Federal law contemplates some level of cooperation between state and federal agencies in the
enforcement of immigration laws. In 1996, Congress passed measures intended, at least in part, to
deter states and localities from limiting information-sharing with the federal government on
immigration matters. Pursuant to IIRIRA § 642 and § 434 of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (PRWORA), states and localities may not limit
57 H.R. 2202, § 133 (104th Cong., 2nd Sess.) (House-passed version).
58 Dept. of Justice, Office of Legal Counsel, Non-preemption of the Authority of State and Local Law Enforcement
Officials to Arrest Aliens for Immigration Violations, at 8 (Apr. 3, 2002) [hereinafter “2002 OLC Opinion”]. Initially,
the DOJ did not make the 2002 OLC opinion publicly available. Several immigration and public interest groups sought
disclosure under the Freedom of Information Act. See Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350 (2nd
Cir. 2005). As a result of this litigation, the DOJ was required to release a redacted version of the opinion, which can be
viewed at http://www.aclu.org/FilesPDFs/ACF27DA.pdf or http://www.fairus.org/site/DocServer/
OLC_Opinion_2002.pdf?docID=1041. See also 1996 OLC Opinion, supra footnote 53, 1996 WL 33101191, at *16
(“we conclude that state and local police lack recognized legal authority to stop and detain an alien solely on suspicion
of civil deportability”).
59 United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001); United States v. Vasquez-Alvarez, 176 F. 3d 1294
(10th Cir. 1999); United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984). See generally CRS Report R41423,
Authority of State and Local Police to Enforce Federal Immigration Law, by Michael John Garcia and Kate M.
Manuel.
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their governmental entities or officers from maintaining records regarding a person’s immigration
status, or bar the exchange of such information with any federal, state, or local entity. In addition
to imposing obligations upon states and localities to refrain from restricting their agencies and
officers from communicating with federal authorities regarding immigration matters, IIRIRA
§ 642 also imposed an obligation upon federal immigration authorities to respond to immigration-
related inquiries from states and localities. Specifically, IIRIRA § 642(c) requires federal
immigration authorities
to respond to an inquiry by a Federal, State, or local government agency, seeking to verify or
ascertain the citizenship or immigration status of any individual within the jurisdiction of the
agency for any purpose authorized by law, by providing the requested verification or status
information.60
Aspects of S.B. 1070 have clearly been informed by these measures. Generally, provisions of S.B.
1070 that concern determinations of persons’ immigration status require verification with the
federal government pursuant to the mechanism established by IIRIRA § 642(c). Other provisions
of S.B. 1070 resemble those provisions of PRWORA and IIRIRA that prohibit state and local
agencies from restricting the sharing of information related to immigration status with other
federal, state, and local entities. Section 2 of S.B. 1070 bars any restriction (other than those
imposed by federal law) upon state or local officers and agencies sending, receiving, maintaining,
or exchanging information on immigration with other federal, state, and local government
entities, when such activity is done for the purpose of determining eligibility for public services
or benefits, verifying a person’s claim of domicile or residence, or determining whether a person
is complying with federal alien registration laws. On their face, these provisions might reasonably
be viewed as consonant with provisions of PRWORA and IIRIRA concerning the sharing of
immigration-related information by federal, state, and local entities. On the other hand, it is
possible that these provisions could be interpreted more broadly to, for example, permit the
fostering of inquiries into immigration status by state and local employees beyond those inquiries
currently undertaken incident to those employees’ official duties.
Detection of Unauthorized Aliens By State and Local Law Enforcement under
Section 2
Those provisions of S.B. 1070 which contemplate state and local law enforcement actively
participating in the detection of unauthorized aliens arguably raise more significant preemption
issues. Especially prior to its modification by H.B. 2162, Section 2 of S.B. 1070 arguably
appeared to authorize intensive, daily involvement in immigration law enforcement by state and
local officers beyond established precedents. As originally enacted, a component of Section 2
(generally referred to as “Section 2(B)” in the reviewing district court’s opinion) provided that
whenever a law enforcement officer had “lawful contact” with a person and reasonable suspicion
existed that the person was an unlawfully present alien, the officer was required, where
practicable, to determine the person’s immigration status. Case law in the Tenth Circuit has
supported the authority of police to inquire into immigration status in certain circumstances
incidental to otherwise authorized enforcement of criminal law, violations of state traffic laws,
and similar offenses.61 Inquiring into status pursuant to “lawful contact” perhaps could have been
60 8 U.S.C. § 1373(c).
61 The Tenth Circuit has upheld inquiries and arrests by state law enforcement officers related to suspected immigration
law violations, without appearing to distinguish between violations which are civil or criminal in nature. See, e.g.,
(continued...)
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read as sufficiently circumscribed to fit within this line of cases (though its reception by the Ninth
Circuit, where Arizona rests, might have been less certain62). However, “lawful contact” also
appeared susceptible to an interpretation that covered any manner of casual interaction between
the police and the public that was “lawful.” H.B. 2162 modified this provision to limit
immigration status inquiries to situations where a law enforcement agency or officer made a
“lawful stop, detention, or arrest” for a violation of state or local law.63 In addition, S.B. 1070, as
modified, also establishes that persons arrested by state or local law enforcement shall have their
immigration status verified with federal authorities prior to their release.64 Federal immigration
authorities also shall be notified when an unauthorized alien is released from prison or has been
assessed a monetary penalty, and local law enforcement officials may transport unauthorized
aliens in their custody to a federal facility.65
Many of the above-described activities are the kind often contemplated in cooperative agreements
between the Department of Homeland Security (DHS) and state or local law enforcement
authorities. In 1996, Congress authorized the Attorney General (now the Secretary of Homeland
Security) to enter into formal agreements with state or local entities that permit those entities to
play a direct role in the enforcement of federal immigration law. Agreements entered pursuant to
INA § 287(g) (commonly referred to as “287(g) agreements”) enable specially trained state or
local officers to perform specific functions relative to the investigation, apprehension, or
detention of aliens, during a predetermined timeframe and under federal supervision. For
example, the DHS has entered 287(g) agreements with several jurisdictions to allow correctional
officers and other jail personnel to question persons who are being detained for crimes about their
immigration status and begin paperwork for transferring suspected removable aliens to federal
custody upon their release. Some other agreements authorize a limited number of highly trained
(...continued)
Santana-Garcia, 264 F.3d at 1194 (state law enforcement officers have “implicit authority” within their respective
jurisdictions to investigate and make arrests for violations of immigration law, even without express authorization from
the state); Vasquez-Alvarez,176 F.3d at 1295 (INA provision authorizing state officials to arrest and detain unlawfully
present aliens who had previously been deported on criminal grounds, but only upon confirmation of aliens’ illegal
status with federal authorities, “does not limit or displace the preexisting general authority of state or local police
officers to investigate and make arrests for violations of federal law, including immigration law”); Salinas-Calderon,
728 F.2d at 1301 n. 2 (“A state trooper has general investigatory authority to inquire into possible immigration
violations”). For additional discussion of these opinions, see CRS Report R41423, Authority of State and Local Police
to Enforce Federal Immigration Law, by Michael John Garcia and Kate M. Manuel. See also Kris W. Kobach, The
Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 ALB. L. REV.
179 (2005) (discussing decisions by the 10th Circuit and other federal courts which arguably support the authority of
states and localities to make arrests for civil violations of federal immigration law).
62 See, e.g., Gonzalez, 722 F.2d at 476 (“[A]n intent to preclude local enforcement may be inferred where the system of
federal regulation is so pervasive that no opportunity for state activity remains. We assume that the civil provisions of
the [INA] regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive
regulatory scheme, as would be consistent with the exclusive federal power over immigration.”).
63 H.B. 2162, § 3. Arizona law contains a few criminal offenses in which unauthorized immigration status is an element
of the offense (e.g., smuggling unauthorized aliens, failing to comply with federal requirements for alien registration).
Accordingly, an Arizona law enforcement officer’s suspicion that a person is an unauthorized alien might be a relevant
factor when assessing whether there is reasonable suspicion to stop the person for a suspected violation of state law.
However, neither federal nor state law makes it a criminal offense for an alien to be unlawfully present in the United
States. The fact that an officer has reasonable suspicion to believe that an alien is unlawfully present might not alone
provide sufficient grounds to reasonably suspect that he has committed a criminal offense. See infra text accompanying
footnote 137 (describing other requirements besides unauthorized status that are necessary for an alien to be criminally
liable under federal alien registration law).
64 S.B. 1070, § 2.
65 Id.
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personnel to more broadly engage in field enforcement under direct supervision of federal
immigration agents.66 There are several 287(g) agreements in place between federal immigration
authorities and Arizona state, city, and county law enforcement agencies, permitting designated
officers to perform specified functions under federal supervision.67
Section 2(B) of S.B. 1070 does not purport to be based on a delegation of federal immigration
enforcement authority under INA § 287(g). Instead, its legal foundation appears premised on the
belief that states generally possess inherent power to enforce federal laws, and that federal
immigration law does not preempt the kind of enforcement activities contemplated by S.B.
1070.68 This position appears to be based on similar legal reasoning as that found in the 2002
OLC opinion and the Tenth Circuit cases mentioned above.69 To the extent that the performance
of immigration enforcement functions by Arizona officials is not done pursuant to a 287(g)
agreement, arguments may be raised that states and localities are preempted from engaging in
such functions. It should be noted, however, that INA § 287(g)(10) plainly states that a written
287(g) agreement is not required for state or local entities to “cooperate … in the identification,
apprehension, detention, or removal of aliens not lawfully present in the United States.”70 An
issue which may arise in litigation concerning state efforts to enforce federal immigration law is
whether the “cooperation” contemplated under INA § 287(g)(10) requires states and localities to
consult and coordinate their immigration enforcement efforts with federal authorities, or whether
“cooperation” may also be interpreted to permit states and localities to independently enact
measures that are consistent with, and arguably further, federal policies related to the detection
and removal of unauthorized aliens.
The DOJ challenged the provision of Section 2(B) requiring state law enforcement to investigate
the immigration status of stopped persons who are suspected of being unlawfully present aliens,
claiming that this provision was preempted. The DOJ argument focused on the “mandatory”
nature of this scheme. According to the DOJ, this scheme would result in a “dramatic increase” in
the number of requests for immigration status verification received by federal immigration
enforcement authorities,71 “diverting resources and attention from the dangerous aliens who the
federal government targets as its top enforcement priority.”72 The DOJ also claimed that Section
2(B) would impose impermissible burdens upon lawfully present aliens and U.S. citizens who are
stopped or detained by Arizona law enforcement and cannot readily prove their citizenship or
legal immigration status; a “form of treatment which Congress has plainly guarded against in
crafting a balanced, federally-directed immigration enforcement scheme.”73 The reviewing court
66 See CRS Report R41423, Authority of State and Local Police to Enforce Federal Immigration Law, by Michael John
Garcia and Kate M. Manuel.
67 See U.S. Immigration and Customs Enforcement, Office of State and Local Coordination, Delegation of Immigration
Authority Section 287(g) Immigration and Nationality Act, available at http://www.ice.gov/pi/news/factsheets/
section287_g.htm#top (discussing 287(g) program and providing links to copies of agreements in force).
68 United States v. Arizona, No. CV-10-1413, Defendant’s Response to Motion for Preliminary Injunction (D. Ariz.
filed July 20, 2010) [hereinafter “Arizona Response”], at 14, 18 (approvingly citing the DOJ’s 2002 OLC Opinion,
which recognized state authority to enforce civil provisions of the INA, and arguing that immigration verification
requirements contained in Section 2 of S.B. 1070 codified the state’s “existing authority”), available at
http://azgovernor.gov/dms/upload/PR_072010_USvAZDefendantsResponsePlaintiffMotionPI.pdf.
69 See supra text accompanying footnote 61; 2002 OLC Opinion, supra footnote 58, at 2-4.
70 INA § 287(g)(10), 8 U.S.C. § 1357(g)(10).
71 Plaintiff’s PI Motion, supra footnote 3, at 51.
72 Arizona Complaint, supra footnote 3, at 17.
73 Id. at 18.
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held that the government would likely succeed on this challenge, and enjoined Section 2(B) from
going into effect pending a final ruling on the merits of the government’s suit.
First, the court found that the federal government is likely to prevail on the merits of its argument
that the mandatory immigration verification requirement established by Section 2(B) is
preempted because of the burden it places upon the federal government.74 The court concluded
that “an inference of preemption” exists when state action impermissibly burdens federal
resources and priorities.75 According to the court, the Arizona statute would result in a large
number of immigration status verification requests being received by federal immigration
authorities.76 The court characterized this increase in number as likely to impermissibly tax
federal resources and “redirect federal agencies away from the priorities they have established.”77
The court also concluded that the federal government was likely to succeed in its argument that
Section 2(B) of S.B. 1070 would impermissibly burden lawfully-present aliens.78 The district
court’s analysis relied heavily on the Supreme Court’s ruling in the 1941 case of Hines v.
Davidowitz.79 In Hines, the Supreme Court struck down a Pennsylvania law that generally
required adult aliens to register with the state once a year. According to the Hines Court, this
requirement “necessarily place[d] lawfully present aliens (and even U.S. citizens) in continual
jeopardy of having to demonstrate their lawful status to non-federal officials,” despite Congress’s
manifest intent to regulate immigration “in such a way as to protect the personal liberties of law-
abiding aliens through one uniform national … system[] and to leave them free from the
possibility of inquisitorial practices and police surveillance.”80 The district court concluded that,
like the state law struck down in Hines, the Arizona law’s mandatory immigration status
verification requirement would place an impermissible burden upon lawfully present aliens.
Although the status verification requirements of Section 2(B) are directed towards persons
suspected of being unlawfully present aliens, the district court stated that lawfully present aliens
were also likely to be affected:
Legal residents will certainly be swept up by this requirement, particularly when the impacts
of the provisions pressuring law enforcement agencies to enforce immigration laws are
considered. Certain categories of people with transitional status and foreign visitors from
countries that are part of the Visa Waiver Program will not have readily available
documentation of their authorization to remain in the United States, thus potentially
subjecting them to arrest or detention, in addition to the burden of “the possibility of
inquisitorial practices and police surveillance.”81
74Arizona, 703 F.Supp.2d at 995-996.
75 Id. at 998.
76 Id. at 995.
77 Id. at 996. The court noted, for example, that a large number of persons are “technically ‘arrested’ but never booked
into jail or perhaps even transported to a law enforcement facility.” Id. at 995. The court also suggested, but did not
address, the possibility that the period of detention for at least some arrestees awaiting verification of their immigration
status could be lengthened to such a degree as to violate the Fourth Amendment. Id. at 995 n.6.
78 Arizona, 703 F.Supp.2d at 997-998. When discussing these provisions, the court noted, but did not address, the
possibility that they could result in impermissible racial profiling. Id. at 997 n.11.
79 312 U.S. 52 (1941).
80 Id. at 74.
81 Arizona, 703 F.Supp.2d at 997 (internal citations omitted).
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The district court also expressed concern that Section 2(B), like the state statute struck down in
Hines, could potentially interfere with the federal government’s responsibility “to maintain
international relationships, for the protection of American citizens abroad as well as to ensure
uniform national foreign policy.”82
It should be noted that the district court’s discussion of the burdens imposed upon the federal
government and lawful aliens by Section 2(B) focused upon the “mandatory” nature of the
immigration verification regime established by Arizona. It is not clear that the court’s ruling
would necessarily bar Arizona law enforcement from attempting to verify the immigration status
of apprehended persons on a more limited, case-by-case basis. Indeed, the DOJ seemed to suggest
in its argument that it did not view attempts by state or local law enforcement to verify the
immigration status of individuals, when done on a discretionary basis, as raising the same
preemption concerns as Arizona’s “mandatory” requirements relating to immigration status
verification.83
It is also unclear to what extent the court’s assessment of the burdens imposed by Section 2(B)
upon federal resources and lawfully-present aliens is dependent upon the federal government’s
current immigration enforcement priorities and allocation of resources, and whether any future
changes in federal enforcement priorities would alter the court’s analysis.
Authorization of Private Suits in Response to State or Local Limitations on
Enforcement of Immigration Law
Issues might also be raised with respect to the provision of S.B. 1070 authorizing any legal
resident of Arizona to file suit to challenge any policy of a state or local government entity that
“limits or restricts the enforcement of federal immigration laws to less than the full extent
permitted by federal law.”84 This authority might be seen as helping to ensure that state and local
agencies comply with all applicable federal immigration statutes, and that these entities do not
impede the federal government’s ability to carry out its immigration enforcement activities (e.g.,
by restricting their employees from sharing of immigration information with federal
authorities).85 Alternatively, it might plausibly be interpreted more expansively to allow suits
challenging whether Arizona officials are actively enforcing federal immigration law to the fullest
extent possible. If the latter interpretation is adopted, the extent to which states or localities may
permissibly enforce federal immigration law could become an issue in future litigation.
The district court that considered the DOJ’s challenge to S.B. 1070 did not view the federal
government as having directly challenged this provision,86 and it did not enjoin it from taking
82 Id. (citing Hines, 312 U.S. at 62-63, and also quoting Zadvaydas v. Davis, 533 U.S. 678, 700 (2001) (“We recognize
… the Nation’s need to ‘speak with one voice’ in immigration matters.”)).
83 Plaintiff’s PI Motion, supra footnote 3, at 25 (“Before passage of S.B. 1070, Arizona police had the same discretion
to decide whether to verify immigration status during the course of a lawful stop as any other state or federal law
enforcement officer.”).
84 S.B. 1070, § 2, as amended by H.B. 2162, § 3.
85 Indeed, H.B. 2162 amended the original language of S.B. 1070 to specify that a person could bring suit against those
government entities that were in violation of PRWORA and IIRIRA provisions which bar states and localities from
implementing policies which restrict communication with federal authorities regarding immigration matters. H.B. 2162,
§ 3.
86 Arizona, 703 F.Supp.2d at 986. In its complaint, the DOJ had suggested that this provision of S.B. 1070, acting in
conjunction with the separate provision requiring law enforcement to investigate the immigration status of stopped,
(continued...)
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effect.87 It did, however, note that this provision could encourage Arizona law enforcement to
more rigorously enforce other provisions of S.B. 1070 that raised preemption issues.88
Warrantless Arrests of Persons Who Have Committed a Criminal Offense
Making Them Deportable
The district court also preliminarily enjoined the enforcement of Section 6 of S.B. 1070, pending
a final ruling on the merits of the DOJ’s claims. As discussed earlier, Section 6 authorizes Arizona
law enforcement to make warrantless arrests of aliens when there is probable cause to believe that
they have committed “public offenses” which make them removable under the INA. Arizona law
defines “public offense” as conduct punishable under a state’s law by fine or imprisonment,
provided, in cases where the offense occurs outside Arizona, that the activity would have been
punishable under Arizona law if it had occurred in the state.89 The implications of this provision
may depend on how broadly it is interpreted and applied. On one hand, if Section 6 is interpreted
in a limited fashion, so as to permit the arrest of persons to face criminal proceedings in Arizona
or another state having criminal jurisdiction, it would not facially appear to raise significant
preemption issues.90 On the other hand, more serious preemption issues might be raised if Section
6 is interpreted to permit the arrest of aliens who have already been convicted of a criminal
offense and completed their sentences, so that such persons may be transferred to federal custody
for removal.
While noting some ambiguity as to the meaning and scope of Section 6,91 the reviewing district
court found that the federal government was likely to prevail on the merits of its argument that
the provision was preempted, on account of the burden it would likely place upon lawfully
present aliens. According to the court, state and local law enforcement making arrests pursuant to
Section 6 would need to make two determinations. First, in the event that Arizona law
enforcement sought to arrest a person for an offense committed in another state, a determination
would need to be made as to whether such conduct would have been a crime if committed in
(...continued)
detained, or arrested persons suspected of being unlawfully present, would eliminate officer discretion to decline to
apply S.B. 1070’s provisions. Arizona Complaint, supra footnote 3, at 16-17.
87 Arizona, 703 F.Supp.2d at 986. As originally enacted, S.B. 1070 also allowed suits challenging practices that limit or
restrict the enforcement of federal immigration law. However, this language was deleted by H.B. 2162.
88 See Arizona, 703 F.Supp.2d at 997.
89 ARIZ. REV. STAT. § 13-105.
90 Indeed, in Arizona law enforcement training materials, Section 6 is characterized as “not appear[ing] to change
Arizona law.” Arizona, 703 F.Supp.2d at 1004(quoting Arizona Peace Officer Standards and Training Board,
Implementation of the 2010 Ariz. Immigration Laws - Statutory Provisions for Peace Officers. at 11 (Jun. 2010),
available at http://agency.azpost.gov/supporting_docs/ArizonaImmigrationStatutesOutline.pdf). Under Arizona law,
state and local law enforcement were generally permitted to make warrantless arrests for public offenses when probable
cause existed (and, in the case of misdemeanors, the underlying conduct was committed in the officer’s presence). Id.
See also ARIZ. REV. STAT. §§ 13-105(26)(defining “public offense” and “offense” synonymously), 13-3883
(authorizing warrantless arrests for felony, misdemeanor, and traffic offenses when certain criteria are met). Even under
a narrow interpretation of Section 6, it is possible that legal arguments might be raised against the provision, including
its authorization of warrantless arrests of misdemeanor offenses. There may be little precedent for warrantless arrests
for out-of-state misdemeanors (or for in-state misdemeanors not committed in an officer’s presence) with an apparent
expectation that the arrestee will be detained and deported.
91 Arizona, 703 F.Supp.2d at 1004-1005.
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Arizona.92 Second, law enforcement would have to determine whether the conduct constituted a
deportable offense under federal immigration law, a determination that the reviewing court
characterized as being a “task of considerable complexity that falls under the exclusive authority
of the federal government.”93 Although some provisions of S.B. 1070 require the DHS to be
contacted in order to verify immigration status, the district court noted that Section 6 contained no
such mandate.94 Moreover, the court did not believe it was clear that DHS authorities would
necessarily be able to provide Arizona authorities with information as to whether a particular
offense made an alien deportable.95 Indeed, the court characterized administrative immigration
judges and the federal appellate courts as having the ultimate responsibility for determining
whether an alien had committed a deportable offense.96 The court concluded that Section 6 would
likely impose impermissible burdens upon aliens who were not removable:
Considering the substantial complexity in determining whether a particular public offense
makes an alien removable from the United States and the fact that this determination is
ultimately made by federal judges, there is a substantial likelihood that officers will
wrongfully arrest legal resident aliens …. By enforcing this statute, Arizona would impose a
“distinct, unusual and extraordinary” burden on legal resident aliens that only the federal
government has the authority to impose.97
In reaching this conclusion, the court did not opine on whether state and local law enforcement
possess “inherent authority” to enforce the civil provisions of the INA. Nonetheless, the court’s
rationale for enjoining the enforcement of Section 6 would seem to suggest significant limitations
upon the exercise of any such authority. Presuming that state and local law enforcement generally
lack the ability to assess whether an alien has committed a removable offense, it would appear
that they would generally be precluded from arresting aliens solely on account of suspicion that
they have engaged in activities which make them removable. It should be noted, however, that the
district court’s analysis focused on the “complexity” of the INA provisions relating to the
immigration consequences of criminal activity. It is not clear that the district court’s analysis
would necessarily preclude state and local law enforcement from making arrests in every
circumstance where probable cause existed that an alien was deportable (e.g., when an alien
admitted to an officer that he was present in the United States without authorization).98
Criminalization of Immigration-Related Conduct
As a general matter, preemption issues may potentially be raised whenever states criminalize
immigration-related conduct. State measures addressing issues that have traditionally been
subject to state regulation and upon which federal law remains silent seem least susceptible to
92 Id. at 1005.
93 Id.
94 Id. at 1006.
95 Id. at 1006 n. 21.
96 Id. at 1005-1006.
97 Id. at 1006.
98 Some grounds for deportation are of arguably similar complexity as those provisions which describe criminal activity
making an alien removable. See, e.g., INA §237(a)(4); 8 U.S.C. § 1187(a)(4) (describing conduct implicating national
security or foreign policy interests which may make an alien removable). Moreover, many of the grounds for
deportation may be waived by federal immigration authorities. See, e.g., INA §237(a)(1)(E); 8 U.S.C. § 1187(a)(E)
(permitting waiver of ground for removal relating to alien smuggling in limited circumstances).
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legal challenge. More serious preemption concerns may be raised when states criminalize matters
already regulated by federal immigration law. Of this latter category, the most serious preemption
arguments likely exist where state law attempts to reach past traditional police powers to regulate
matters closely related to the entry and removal of aliens from the United States, and the
conditions of their lawful presence within the country. State laws addressing such matters appear
most susceptible to preemption challenges, as federal law is arguably intended to wholly occupy
this field.
Provisions of S.B. 1070 criminalizing immigration-related conduct have been subject to legal
challenge. Some, but not all, of S.B. 1070’s criminal provisions have been enjoined by the
reviewing district court from taking effect, pending a final ruling on the merits of the federal
government’s challenge.
Criminalizing the Hiring of Persons Picked Up Along Roadways
Section 5 of S.B. 1070 makes it a misdemeanor offense under Arizona law for an occupant of a
motor vehicle stopped on the roadway to attempt to hire or hire and pick up passengers for work
at a different location, if the motor vehicle blocks or impedes the normal movement of traffic. The
law also imposes a misdemeanor penalty upon those persons who enter a stopped motor vehicle
to be hired and transported to work at a different location, if the vehicle blocks or impedes the
normal traffic flow. Although these provisions cover conduct that often facilitates the employment
of unauthorized aliens, the provisions criminalize conduct without regard to the participants’
citizenship or immigration status.99 This provision was not challenged in the DOJ’s lawsuit
against Arizona, and it has not been enjoined from taking effect. Challenges have been brought
against this provision by a few private parties, however, and the reviewing court has yet to rule on
the merits of their claims.100
It is well established that not every state law which tangentially touches upon immigration
matters is preempted.101 Further, courts have stated that when a state acts pursuant to its historic
police powers, there is a presumption against preemption of the state law, unless federal law
evidences a “clear and manifest purpose” to supersede state action.102 The regulation of the hiring
of persons along busy roadways appears well within a state’s traditional powers, and federal law
is silent on this matter. Accordingly, it does not appear that this provision facially poses a serious
preemption issue, though it is possible that preemption issues could be raised in its application
(e.g., if the law was only applied when law enforcement suspected that the prospective employee
was an unauthorized alien).
99 S.B. 1070, § 5 also makes it a misdemeanor for an unlawfully present alien to knowingly apply for work, solicit work
in a public place, or perform work as an employee or independent contractor in Arizona. This provision is discussed
elsewhere in this report.
100 See, e.g., Friendly House, supra footnote 3, at 36-39.
101 De Canas, 424 U.S. at 355. See also League of United Latin Am. Citizens v. Wilson, 908 F.Supp. 755 (C.D. Cal.
1995)(striking down portions of state measure that sought to deter unauthorized migration through various state
enforcement activities, but upholding portion criminalizing the making or use of false documents to conceal the “true
citizenship or resident status” of a person, because state had a legitimate interest in “criminalizing conduct that is
dishonest and deceptive”).
102 Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218,
230, (1947)). But see United States v. Locke, 529 U.S. 89, 108 (2000) (“an ‘assumption’ of nonpre-emption is not
triggered when the State regulates in an area where there has been a history of significant federal presence”).
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Occasionally, local laws barring solicitation of employment along public streets have been
stricken by the courts as violating the First Amendment.103 The underlying legal theory is that
streets are important public forums where the government can impose only narrowly tailored
restrictions on speech to serve significant government interests. The requirement in S.B. 1070
that premises a violation on the blocking or impeding of normal traffic may make the provision
less vulnerable to First Amendment attack, but the state might nevertheless eventually bear a
burden of showing that there are alternative public places for soliciting employment and that
other activity that can impede traffic (e.g., solicitation of charitable contributions) is similarly
regulated. This argument was not raised by the federal government in its challenge to S.B. 1070,
but the reviewing district court indicated its view in dicta that recent Ninth Circuit jurisprudence
“forecloses a challenge to [this provision of S.B. 1070] on First Amendment grounds.”104
Criminalizing Alien Smuggling Activities
Under INA § 274, the federal government has criminalized various activities relating to the
transportation of unauthorized aliens into or within the United States, as well as the harboring of
such aliens in the country, or encouraging or inducing such aliens to come to or reside in the
United States.105 For criminal liability to attach, the offender must generally act with knowledge
or in reckless disregard of the alien’s unlawful status. Provisions of S.B. 1070 imposing criminal
penalties upon alien smuggling activities and amending a previously-enacted Arizona alien
smuggling statute have been challenged on the ground that they are preempted by INA § 274, but
these challenges have thus far proven unsuccessful.
Even prior to the enactment of S.B. 1070, Arizona law imposed criminal penalties for certain
activities that are likely also subject to criminal penalty under INA § 274. Arizona’s “human
smuggling” statute, which was enacted in 2005, generally makes it a felony under state law for
any person, for profit or commercial purpose, to transport or procure transportation for an
unauthorized alien, when the offender knows or has reason to know the person’s unauthorized
status.106 Section 4 of S.B. 1070 makes a minor amendment to this statute that does not affect its
substantive scope. More significantly, Section 5 adds a separate criminal offense under state law
for any person, “who is in violation of a criminal offense,” to transport or harbor unauthorized
aliens, or encourage or induce such aliens to come to or reside in the state, when such activities
103 E.g., Comite de Jornaleros v. City of Redondo Beach, 475 F.Supp. 2d 952 (C.D. Cal. 2006), reversed by 607 F.3d
1178 (9th Cir. 2010).
104 Arizona, 703 F.Supp.2d at 1000 n.16. A month prior to the district court’s ruling, the Ninth Circuit Court of Appeals
had found that a provision of a city municipal code that prohibited the act of standing on a street or highway and
soliciting employment, business, or contributions from occupants of vehicles constituted a valid time, place, or manner
restriction upon speech, in part, because it did not “single out particular ideas for differential treatment.” City of
Redondo Beach, 607 F.3d at 1187. See also ACORN v. City of Phoenix, 798 F.2d 1260, 1273 (9th Cir. 1986)
(upholding a municipal ordinance which provided that “[n]o person shall stand on a street or highway and solicit, or
attempt to solicit, employment, business or contributions from the occupants of any vehicle”).
105 8 U.S.C. § 1324. See also CRS Report RL34501, Alien Smuggling: Recent Legislative Developments, by Michael
John Garcia.
106 ARIZ. REV. STAT. § 13-2319 (2009). Although the federal alien smuggling statute also criminalizes the transport of
unauthorized aliens, for liability to attach transport must be done in furtherance of an alien’s unlawful presence,
whereas the Arizona statute requires that the transport be done with knowledge or in reckless disregard of the alien’s
unlawful status and for profit or a commercial purpose. The new smuggling offense added by S.B. 1070 more closely
mirrors the language of the federal statute concerning when criminal liability for alien transport attaches. Arizona is not
the only state that criminalizes alien smuggling activities. See, e.g., 21 OKL. ST. ANN. § 446 (2009).
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are done in knowing or reckless disregard of the alien’s unauthorized status.107 The purpose of the
phrase “who is in violation of a criminal offense” is unclear. The offenses described in Section 5
of S.B. 1070 would almost always constitute criminal offenses under INA § 274, meaning that
any offense under Section 5 would presumably be committed by a person “who [was also] in
violation of a criminal offense” under the federal alien smuggling statute. On the other hand, the
phrase “who is in violation of a criminal offense” could be interpreted in a more limited manner
to only permit persons to be prosecuted under the new Arizona law for smuggling-related
activities when they were also engaged in criminal conduct not described under the state statute.
In sum, Arizona has established criminal penalties under state law, pursuant to the 2005 “human
smuggling” statute and the new offense created under Section 5 of S.B. 1070, for conduct similar
to that which is prohibited under the federal alien smuggling statute.108 Because Arizona’s alien
smuggling laws operate in an area where the federal government exercises authority via INA §
274 and other immigration statutes, arguments have been raised that these laws are preempted.
Federal law does not expressly preempt state or local measures criminalizing activities related to
alien smuggling (though a provision of the federal alien smuggling statute impliedly authorizes
states and localities to make arrests for violations of the statute109). As a result, preemption
challenges against the smuggling provisions of S.B. 1070 (or Arizona’s preexisting “human
smuggling” statute) have either been based upon arguments that federal alien smuggling
restrictions occupy the regulatory field and preclude enforcement of similar state laws, or upon
arguments that the Arizona smuggling statute directly conflicts with or otherwise frustrates the
purposes of federal immigration law and policy, including by purportedly attempting to regulate
the unlawful entry of aliens into the country.110
The historic police power of states generally permits them to define and punish criminal activities
occurring within their territory.111 Thus far, Arizona’s criminalization of smuggling activities
occurring within its jurisdiction—both under S.B. 1070 and under the “human smuggling” statute
passed in 2005—has been held by reviewing courts to fall within the scope of its traditional
police powers,112 and a presumption may exist that Congress’s imposition of criminal penalties
107 S.B. 1070, § 5.
108 It should be noted that although smuggling offenses under Arizona law closely resemble offenses under the federal
alien smuggling statute, the substantive scope of these offenses is not wholly identical. Notable as well, Arizona state
and federal district courts have interpreted the state’s preexisting human smuggling statute to cover persons who
conspire to smuggle themselves into the United States. See State v. Barragan-Sierra, 196 P.3d 879 (Ariz. Ct. App.
2008). See also We Are America/Somos America, Coalition of Arizona v. Maricopa County Bd. of Sup’rs, 594 F.Supp.
2d 1104 (D. Ariz. 2009) (rejecting field preemption challenge raised with respect to persons charged under Arizona law
with conspiring to smuggle themselves), affirmed in part and reversed in part, No. 09-15281, 2010 U.S. App. LEXIS
14198 (9th Cir. Jul. 12, 2010).
109 INA § 274(c), 8 U.S.C. § 1324(c) (“No officer or person shall have authority to make any arrest for a violation of
any provision of this section except officers and employees of the Service designated by the Attorney General, either
individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.”).
110 See, e.g., Plaintiff’s PI Motion, supra footnote 3, at 39-41, 44-45 (arguing that smuggling provisions of S.B. 1070
constituted an impermissible regulation of immigration); State v. Flores, 188 P.3d 706 (Ariz. Ct. App. 2008)
(discussing and rejecting preemption arguments raised by criminal defendants prosecuted under the 2005 smuggling
statute enacted by Arizona).
111 See, e.g., Abbate v. United States, 359 U.S. 187, 195 (1959) (“States under our federal system have the principal
responsibility for defining and prosecuting crimes.”).
112 See, e.g., Flores, 188 P.3d at 711-712 (finding that “Arizona’s human smuggling law furthers the legitimate state
interest of attempting to curb ‘the culture of lawlessness’ that has arisen around this activity by a classic exercise of its
police power”); Barragan-Sierra, 196 P.3d at 890 (holding that Arizona’s human smuggling statute was a valid
exercise of its police powers). Cf. Plyler v. Doe, 457 U.S. 202, 225 (1982) (recognizing that “States have some
(continued...)
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upon alien smuggling was not intended to preclude Arizona or other states from enacting and
imposing measures consistent with federal law.113 On the other hand, courts have recognized that
a presumption against preemption does not exist in cases where a state “regulates in an area
where there has been a history of significant federal presence.”114 Given that federal regulation of
alien smuggling has been both long-standing and pervasive in scope,115 it could be argued that
there is no presumption against preemption of Arizona’s alien smuggling laws.116
Even assuming that Arizona’s laws concerning alien smuggling are not entitled to a presumption
against preemption given the degree of federal activity in this area, the measures might
nonetheless be deemed valid if they are consistent with pertinent federal laws and objectives.117
Thus far, state and federal courts that have considered challenges to S.B. 1070 and Arizona’s
2005 human smuggling statute have rejected field preemption arguments against the statute’s
enforcement.118
Although the federal government requested that S.B. 1070’s anti-smuggling provisions be
enjoined from taking effect, the reviewing court denied this request. In doing so, the district court
judge rejected the federal government’s arguments that the new smuggling offense established by
S.B. 1070 was barred by the Dormant Commerce Clause,119 and that it was an impermissible
attempt by Arizona to regulate immigration. With respect to the latter argument, the reviewing
court wrote that the new alien smuggling offense established by S.B. 1070
does not attempt to regulate who should or should not be admitted into the United States, and
it does not regulate the conditions under which legal entrants may remain in the United
States. Therefore, the Court concludes that the United States is not likely to succeed on its
(...continued)
authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a
legitimate state goal”).
113 See De Canas, 424 U.S. at 357 (“[W]e will not presume that Congress, in enacting the INA, intended to oust state
authority to regulate … [employment of unauthorized aliens] in a manner consistent with pertinent federal laws. Only a
demonstration that complete ouster of state power including state power to promulgate laws not in conflict with federal
laws was ‘the clear and manifest purpose of Congress’ would justify that conclusion.”).
114 Locke, 529 U.S. at 108.
115 Statutory proscriptions against the illegal importation of aliens into the United States can be found as far back as
1875. Act of March 3, 1875, §§ 2-4, 18 Stat. 477. The modern alien smuggling statute predates the INA, and courts
have interpreted it as broadly covering many forms of assistance provided to unauthorized aliens. See generally CRS
Report RL34501, Alien Smuggling: Recent Legislative Developments, by Michael John Garcia.
116 See Maricopa County Bd. of Sup’rs, 594 F.Supp.2d at 1111 (appearing to find that a presumption against
preemption did not exist with respect to Arizona’s “human smuggling” statute, but nonetheless concluding that the
statute was not preempted by federal law).
117 See De Canas, 424 U.S. at 357.
118 Arizona, 703 F.Supp.2d at 1004; Maricopa County Bd. of Sup’rs, 594 F. Supp. 2d at 1114; Barragan-Sierra, 196
P.3d at 890-91; Flores, 188 P.3d at 711-12.
119 Arizona, 703 F.Supp.2d at 1003-1004. The court found that the government was unlikely to prevail on its argument
that the challenged provision violates the Dormant Commerce Clause because, even assuming the provision has a
substantial effect on interstate commerce, it does not discriminate between in-state and out-of-state economic interests.
Id. at 1004. The “Dormant Commerce Clause” is the name given to the judicial doctrine which recognizes the
Commerce Clause of the U.S. Constitution as having a “‘negative’ aspect that denies the States the power unjustifiably
to discriminate against or burden the interstate flow of articles of commerce.” Or. Waste Sys., Inc. v. Dep’t of Envtl.
Quality, 511 U.S. 93, 98 (1994). “The dormant Commerce Clause is implicated if state laws regulate an activity that
‘has a substantial effect’ on interstate commerce such that Congress could regulate the activity.” Nat’l Ass’n of
Optometrists & Opticians Lenscrafters, Inc. v. Brown, 567 F.3d 521, 525 (9th Cir. 2009) (emphasis in original).
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claim that [the new alien smuggling offense established by S.B. 1070] is an impermissible
regulation of immigration.120
While Arizona’s 2005 “human smuggling” statute has not been directly challenged by the federal
government in litigation concerning S.B. 1070, the statute has been considered by state and
federal courts. In 2009, the U.S. District Court for Arizona upheld the statute against a field
preemption challenge in the case of We Are America/Somos America, Coalition of Arizona v.
Maricopa County Board of Supervisors. The plaintiffs in the case, which included six Mexican
nationals who had been charged with conspiracy to violate the Arizona statute, argued that the
statute was unenforceable on field preemption grounds, as it impermissibly duplicated federal
immigration law in object and effect.121 In declining to exercise jurisdiction to consider claims
raised by the Mexican nationals pending completion of the state criminal proceedings against
them, the district court found that the plaintiffs could not demonstrate that the Arizona statute was
unenforceable on field preemption grounds. The district court noted that the plaintiffs did not
argue that the Arizona statute was in disharmony with the INA, but only that it was duplicative.
The court rejected the plaintiffs’ field preemption challenge, finding that plaintiffs had failed to
demonstrate, “either based upon the language or the legislative history of the INA, that ‘Congress
intended to preclude harmonious state regulation touching on the smuggling of illegal aliens.’”122
The district court’s ruling was subsequently appealed to the Ninth Circuit, where the appellate
court affirmed the lower court’s ruling in part, including its determination not to exercise
jurisdiction to review the Mexican nationals’ claims pending completion of state proceedings.
With respect to the plaintiffs’ field preemption claim, the appellate court simply stated that
“Arizona has an important interest in enforcing its criminal statutes, and it’s not ‘readily apparent’
that federal law preempts” either the Arizona “human smuggling statute” or its enforcement of the
statute.123 The circuit court also stated that the nationals had an adequate opportunity to litigate
their constitutional claims in the state court proceedings.124
It is possible that Arizona’s criminalization of alien smuggling might nonetheless be subject to
preemption challenges on other grounds which have not been directly opined upon by federal
courts which have reviewed either S.B. 1070 or the earlier smuggling statute. For example, even
state laws that are duplicative of federal law may be subject to challenge on preemption grounds
if they “stand[ ] as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.”125 It could be argued, for example, that when Congress established
criminal penalties for alien smuggling, it did so under the expectation that offenders would not
120 Arizona, 703 F.Supp.2d at 1003. The government apparently abandoned its challenge to the provisions of S.B. 1070
which amended Arizona’s 2005 “human smuggling” statute for purposes of its motion for a preliminary injunction.
Section 4 of S.B. 1070 amends the earlier Arizona law to add that, “[n]otwithstanding any other law, in the
enforcement of this section[,] a peace officer may lawfully stop any person who is operating a motor vehicle if the
officer has reasonable suspicion to believe the person is in violation of any civil traffic law.” In its motion requesting a
preliminary injunction, the federal government sought to enjoin enforcement of Section 4, but not the underlying
Arizona statute that it amended. However, its arguments before the district court focused upon the underlying Arizona
statute, not Section 4, prompting the court to deny the government’s motion for a preliminary injunction as to this
provision. See id. at 1000 (“Nothing about the section standing alone warrants an injunction.”).
121 Maricopa County Bd. of Sup’rs, 594 F. Supp. 2d at 1111.
122 Id. at 1112 (quoting Barragan-Sierra, 196 P.3d at 890).
123 We Are America/Somos America, Coalition of Arizona v. Maricopa County Bd. of Sup’rs, No. 09-15281, 2010
U.S. App. LEXIS 14198, at *3 (9th Cir. Jul. 12, 2010).
124 Id.
125 Crosby, 530 U.S. at 373 (2000) (quoting Hines, 312 U.S. at 67).
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also be subject to additional criminal penalties under state law. Potential tension may arise
between federal and state policies if the federal government declined to prosecute alien
smuggling conduct that was subsequently prosecuted by Arizona. Such tension might be
particularly significant when the federal government declines to prosecute a non-citizen for an
alien smuggling offense, with the intention of permitting the alien’s continued presence in the
United States, only for the alien to be convicted of the offense in state court. Not only might a
state conviction make the alien deportable, but it might also disqualify him from being eligible for
many legal forms of relief from deportation (e.g., asylum or temporary protected status).126 These
considerations might merit particular consideration if Arizona opts to prosecute unlawfully
present aliens under the statute on the grounds that they conspired with others to smuggle
themselves into the United States (an interpretation that has been applied with respect to the 2005
Arizona smuggling statute).127
Although this argument already has been raised in at least one of the legal challenges to Arizona’s
“human smuggling” statute,128 thus far the reviewing courts have concluded that the punishment
of alien smuggling activities is consistent with federal objectives to deter that activity.129
Nonetheless, it is uncertain whether other courts would reach similar conclusions,130 as the degree
126 For example, the INA defines certain offenses as “aggravated felonies,” whether committed in violation of federal
or state law, including any offense described in the federal alien smuggling statute. See INA § 101(a)(43), 8 U.S.C.
§ 1101(a)(43). Conviction for an “aggravated felony” is a ground for deportation and also makes an alien ineligible for
most forms of relief from deportation. A conviction for an offense under Arizona’s “human smuggling” statute would
generally appear to fall under this definition. Although the new alien smuggling statute created by S.B. 1070 only
imposes a misdemeanor penalty for a first-time offense, courts have recognized that certain misdemeanors fall under
the INA’s definition of “aggravated felony.” See, e.g., Biskupski v. Attorney General of U.S., 503 F.3d 274 (3rd Cir.
2007) (holding that misdemeanor offense of federal alien smuggling statute constituted an “aggravated felony” under
the INA); United States v. Gonzalez-Tamariz, 310 F.3d 1168 (9th Cir.2002) (state misdemeanor battery conviction
constituted “aggravated felony”). Misdemeanor offenses may sometimes have immigration consequences, even if they
do not fall under the definition of “aggravated felony” used by the INA. See generally CRS Report RL32480,
Immigration Consequences of Criminal Activity, by Michael John Garcia.
127 See Flores, 188 P.3d at 707-709 (reviewing case of alien who was initially charged with having conspired to have
himself smuggled into the United States in violation of Arizona’s human smuggling statute, and who subsequently pled
guilty to soliciting the commission of a human smuggling offense).
128 See We Are America/Somos America, Coalition of Arizona v. Maricopa County Bd. of Sup’rs, No. CIV 06-2816,
2007 WL 2775134 , *6-7 (D. Ariz., Sept. 21, 2007) (court order in the Maricopa County Bd. of Sup’rs litigation
recognizing that Arizona’s human smuggling statute was consistent with federal immigration policy, and noting that
federal government has discretion to mitigate some of the immigration consequences of a state conviction by exercising
waiver authority over application of certain INA provisions).
129 See id.; Barragan-Sierra, 196 P.3d at 890; Flores, 188 P.3d at 711.
130 For example, a few state and federal courts have considered preemption challenges to local ordinances that bar the
harboring or renting of property to unauthorized aliens. These courts have generally either concluded that the
ordinances are preempted by federal immigration laws, or have enjoined enforcement of the ordinances pending trial on
account of the preemption concerns they raise. See, e.g., Lozano v. City of Hazleton, No. 07-3531, 2010 U.S. App.
LEXIS 18835 (3rd Cir. Sept. 9, 2010) (finding that local prohibition on renting or leasing dwelling units to unauthorized
aliens constituted an impermissible regulation of immigration that was preempted by federal law); Garrett v. City of
Escondido, Order Granting Plaintiffs’ Application For Temporary Restraining Order, 465 F.Supp.2d 1043 (S.D. Cal.
2006) (granting temporary restraining order against local ordinance imposing civil and criminal penalties upon persons
renting property to unauthorized aliens, in part because serious field preemption concerns existed because of the federal
alien smuggling statute). See also State of New Hampshire v. Barros-Batistele, No. 05-CR-1474, 1475 (N.H. Dist. Ct.
August 12, 2005), available at http://www.courts.state.nh.us/district/orders/criminal_trespass_decision.pdf (lower state
court ruling dismissing on field preemption grounds trespassing charges against an alien on account of his suspected
unlawful entry in the United States, as the regime of “offenses, sanctions and penalties” established by the INA left no
room for supplemental action by the states).
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to which states may impose additional criminal sanctions upon activities already regulated by the
INA remains an unsettled issue.
Criminalizing Violations of Federal Alien Registration Requirements
Section 3 of S.B. 1070, which has been preliminarily enjoined from taking effect by the
reviewing district court, establishes criminal penalties under Arizona law for violations of federal
requirements concerning alien registration. The INA generally prohibits a visa from being issued
to any alien seeking admission to the United States until he has registered with immigration
authorities.131 Moreover, any unregistered alien present in the United States who is over the age of
14 must apply for alien registration with immigration authorities within 30 days of entry (aliens
under 14 must apply for registration within 30 days of reaching their 14th birthday).132
Registration requirements are enforced in part by INA § 266(a), which makes it a misdemeanor
offense, subject to imprisonment for up to six months and/or a fine, for an alien to willfully fail or
refuse to file a registration form required under federal immigration law.133 Moreover, INA §
264(e) requires all registered aliens who are at least 18 years of age to carry with them and have
in their personal possession “any certificate of alien registration or alien registration receipt card
issued” to them.134 Failure to comply with this requirement constitutes a misdemeanor, and is
subject to imprisonment for not more than 30 days and/or a fine.135 It should be noted that
although an alien without legal authorization to be in the country is deportable under the INA,
unlawful presence is not a crime under either federal or Arizona law.136 Indeed, an alien who is
unlawfully present in the United States has not necessarily engaged in conduct that would make
him criminally liable under alien registration laws.137
131 8 U.S.C. § 1301. This requirement may be waived in the case of nonimmigrants entering the United States under
INA §101(a)(15)(A) (ambassadors and diplomats) or INA §101(a)(15)(G) (representatives to, and officials and
employees of, international organizations). INA § 221(b), 8 U.S.C. § 1201(b).
132 8 U.S.C. § 1302. For additional discussion regarding alien registration, see CRS Report RL31570, Immigration:
Alien Registration, by Andorra Bruno.
133 8 U.S.C. § 1306(a).
134 8 U.S.C. § 1304(e). Accordingly, an alien who was not issued a registration certificate or card would not be in
violation of this section. United States v. Mendez-Lopez, 528 F. Supp. 972 (N.D. Ok. 1981) (alien who unlawfully
entered the United States and had not registered with immigration authorities was not subject to criminal penalties
under INA § 264(e), because the provision attaches liability only to those persons who fail to carry an “issued”
document).
135 8 U.S.C. § 1304(e).
136 The only situation where unlawful presence is itself a crime is when an alien is found in the country after having
been formally removed or after voluntarily departing the country while a removal order was outstanding. INA § 276, 8
U.S.C. § 1326.
137 For example, a registered alien who overstayed his visa would not have committed a criminal offense (presuming he
carried his registration with him at all times and notified immigration authorities of any change in his address), even
though he was unlawfully present. Further, although all nonregistered aliens who are present in the country are required
to register with the federal government, criminal liability generally only attaches if the alien willfully fails to apply for
registration within 30 days of entry. Accordingly, an unauthorized alien present in the country less than 30 days, or who
has been in the United States longer than 30 days but is unaware of alien registration requirements, would not be
criminally liable. See I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1056-57 (1984) (Brennan, J., dissenting) (describing
some of the situations where an unauthorized alien would not have committed a criminal violation of alien registration
laws). See also Bryan v. United States, 524 U.S. 184, 191 (1998) (“As a general matter, when used in the criminal
context, a ‘willful’ act is one undertaken with a ‘bad purpose.’ In other words, in order to establish a ‘willful’ violation
of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful.”)
(internal quotations omitted).
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Pursuant to S.B. 1070, a person is subject to criminal penalty under Arizona state law if he is
determined to be guilty of a violation of INA § 264(e) (failure to carry registration documents) or
INA § 266(a) (willful failure to complete a registration document). In enforcing the statute, an
alien’s immigration status may be determined through verification with immigration authorities.
Initially, S.B. 1070 made a first-time offense a misdemeanor subject to fine and imprisonment for
up to six months, and subsequent offenses were felonies. If aggravating factors existed, offenses
would have been subject to more significant felony penalties.138 H.B. 2162 amended this
provision to make all offenses misdemeanors, with available penalties being lesser than or equal
to those imposed directly under federal law.139
Arizona’s criminalization of violations of the federal alien registration requirements was
challenged on preemption grounds by the DOJ, and the reviewing court issued a preliminary
injunction barring its enforcement after finding that the federal government is likely to prevail on
the merits of its argument. The reviewing court’s analysis relied heavily on the Supreme Court’s
ruling in Hines v. Davidowitz, where the Court ruled that a Pennsylvania statute requiring aliens
to register with the state was preempted by the Federal Alien Registration Act of 1940.140
Although federal law did not expressly preempt state laws concerning alien registration, the Hines
Court held that the federal act was intended to preempt states from imposing their own alien
registration requirements. Examining the legislative history of the federal law, the Supreme Court
concluded that Congress had intended to establish “a single integrated and all-embracing system”
for the registration of aliens. This system precluded the enforcement of state laws that
“inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement,
the federal law, or enforce additional or auxiliary regulations” related to alien registry.141
According to the federal district court reviewing S.B. 1070, Arizona’s imposition of penalties for
federal alien registration violations is preempted because it “stands as an obstacle to the uniform,
federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien
registration.”142 The court based this conclusion on its view that the INA’s registration
requirements constitute an “integrated and comprehensive system,” and the existence of such a
system “precludes states from conflicting with or complementing federal law.”143
In reaching this decision, the court rejected Arizona’s argument that Hines only precluded states
from adopting registration requirements beyond those established by federal law, and not the
imposition of separate state penalties for violations of federal registration requirements.144 The
court viewed S.B. 1070 as impermissibly altering the penalties for alien registration requirements
that had been established by Congress.145 Although the court did not specify how the Arizona
statute alters the penalties for federal alien registration violations, it might have been alluding to
the fact that enforcement of Arizona’s alien registration law could result in the state imposing
138 S.B. 1070, § 3.
139 H.B. 2162, § 4.
140 The requirements of the 1940 Act were largely incorporated into the INA. Although criminal penalties concerning
failure to register were imposed by the 1940 Act, criminal penalties concerning failure to carry registration documents
were added by the INA in 1952.
141 Hines, 312 U.S. at 66-67.
142 Arizona, 703 F.Supp.2d at 999.
143 Id.
144 Arizona Response, supra footnote 68, at 22.
145 Arizona, 703 F.Supp.2d at 999.
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additional criminal sanctions for federal alien registration violations, separate and apart from
those already imposed under federal law.146 Alternatively, the court might have been concerned
that, as the DOJ argued, S.B. 1070 diverges from federal law by imposing the same penalty for all
violations of federal registration requirements, while federal law provides for different penalties
for each alien registration violation.147
The district court also held that enforcement of a state statute imposing criminal penalties for
violations of federal alien registration requirements would undermine the purposes behind the
creation of the federal system.148 As the Hines Court noted, Congress established a federal system
for alien registration because it perceived a need for “one uniform national … system.”149 One of
the motivations for establishing a single federal system of alien registration, according to the
Hines Court, was the belief that additional state requirements could lead to harassment of “law-
abiding aliens” and affect U.S. relations with the foreign nations from which they came.150 In its
challenge to S.B. 1070, the DOJ argued that states might interpret and enforce federal registration
requirements differently from both the federal government and each other, resulting in
inconsistent interpretation and application of federal registration rules.151 On the other hand, it
could be argued that state laws like those of Arizona do not threaten the existence of a uniform
national registration system because they apply federal standards rather than establishing their
own, separate rules. The district court disagreed with this argument, however, appearing to view
any state-based alien registration laws as being “an obstacle to the accomplishment and execution
of the full purposes and objectives” of the federal alien registration system.152
It should be noted that, even if states are preempted from establishing “additional or auxiliary
regulations” related to alien registry, this does not necessarily mean that they are preempted from
enforcing federal alien registration requirements by arresting criminal offenders with the
expectation of transferring them to federal law enforcement custody. As previously discussed, it
seems well recognized that states have implied authority to make arrests for many criminal
violations of the INA, so long as those constitutional requirements concerning the ability to stop,
146 The Constitution’s protections against double jeopardy do not preclude prosecutions for the same acts or omissions
by separate sovereigns. See Bartkus v. People of State of Ill., 359 U.S. 121 (1959); United States v. Lanza, 260 U.S.
377 (1922); State v. Berry, 650 P.2d 1246 (Ariz. Ct. App. 1982) (finding that double jeopardy clauses of the
Constitutions of the United States and Arizona did not bar successive prosecutions under federal and Arizona law for
same conduct). At one time, Arizona barred state convictions for acts or omissions which had previously been tried by
either the federal government or another state, but this statutory prohibition appears to have been eliminated. ARIZ.
REV. STAT. § 13-112 (1980). Other restrictions upon dual state and federal prosecutions for alien registration violations
might nonetheless still apply.
147 See Plaintiff’s PI Motion, supra footnote 3, at 36, n.33 (“Unlike S.B. 1070, Congress carefully calibrated and
imposed different penalties for each specific alien registration violation.”).
148 See Arizona, 703 F.Supp.2d at 999.
149 Hines, 312 U.S. at 71.
150 Id.
151 Issues of differing interpretation could potentially arise, for instance, with respect to the scope of the federal
requirement that aliens carry any registration document or certificate that they were issued “at all times.” INA § 264(e),
8 U.S.C. § 1304(e). It is possible that some states would interpret this requirement to allow, for example, an alien to
only have constructive possession of a required document, while other states might interpret this provision more
strictly. See Benitez-Mendez v. I.N.S., 760 F.2d 907 (9th Cir. 1983) (stating that alien would not be in violation of INA
§ 264(e) if he left papers in a nearby car while he worked, because he would be in constructive personal possession of
required documents).
152 De Canas, 424 U.S. at 363.
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detain, or arrest persons are satisfied and such arrests are permissible under state law.153 Arguably,
this authority extends to making arrests for criminal violations of federal alien registration
requirements.154 This issue has not been definitively resolved, however, and it is possible that
there may be limitations upon a state’s ability to stop, detain, or arrest a person for a suspected
criminal violation of federal alien registration requirements.155
Criminalizing the Solicitation or Performance of Work by Unauthorized
Aliens
Prior to the enactment of the Immigration Reform and Control Act of 1986 (IRCA, P.L. 99-603),
federal immigration law did not comprehensively address the employment of unlawfully present
aliens, and regulation of such matters was thought to primarily be an issue governed by state law.
States were understood to have “broad authority” to regulate employment relationships within
their territory to protect workers and state fiscal interests.156 In De Canas v. Bica, decided a
decade prior to the passage of IRCA, the Supreme Court recognized that states were largely free
to implement measures restricting the employment of unauthorized aliens within their territory, at
least so long as such restrictions were focused “directly upon ... essentially local problems and
[were] tailored to combat effectively the perceived evils.”157 The Court recognized that a state
might have legitimate reasons for restricting the employment of unauthorized aliens, particularly
in times of high unemployment, in order to protect the fiscal and economic interests of both the
state and its lawfully resident labor force.158
With the enactment of IRCA, Congress amended the INA to establish a scheme to combat the
employment of unauthorized aliens, and this system is now “central to the policy of immigration
law.”159 The INA now generally prohibits the hiring, referring, recruiting for a fee, or continued
153 See supra “III. Overview of Preemption.”
154 See 1996 OLC Opinion, supra footnote 53, 1996 WL 33101191, at *3 (“absent knowledge of an established federal
policy of not prosecuting such offenses, state police may, in our opinion, legally detain alien suspects for disposition by
federal agents when there is reasonable suspicion that the suspects have violated or are violating the two commonplace
misdemeanor provisions of the INA, 8 U.S.C. § 1304(e) (lack of alien registration documents) or § 1325 (illegal entry),
or other criminal provisions of the INA”); U.S. Attorney’s Criminal Resource Manual, § 1918, Arrest of Illegal Aliens
by State and Local Officers (discussing state and local law enforcement officers’ ability to make arrests for criminal
offenses of the INA, including for criminal violations of the INA’s alien registration requirements), available at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01918.htm.
155 See 1996 OLC Opinion, supra footnote 53, 1996 WL 33101191, at *11 (interpreting Ninth Circuit’s ruling in
Mountain High Knitting, Inc. v. Reno, 51 F.3d 216 (9th Cir. 1995), as suggesting that state authority to arrest an alien
for a criminal violation of federal registration requirements may be legally suspect if there is reason to believe that the
federal government will not prosecute the offender for the violation).
156 De Canas, 424 U.S at 356.
157 Id. at 357.
158 The De Canas Court described some of the reasons why a state might legitimately act to restrict the employment of
unauthorized aliens:
Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs;
acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously
depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal
aliens under such conditions can diminish the effectiveness of labor unions.
Id.
159 Hoffman Plastic Compounds, Inc. v. N.L.R.B, 535 U.S. 137, 147 (2002) (internal quotations omitted).
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
employment of aliens lacking authorization to work in the United States.160 Violators may be
subject to cease and desist orders, civil monetary penalties, and (in the case of serial offenders)
criminal fines and/or imprisonment. In establishing this system, Congress also expressly
preempted any state or local measure “imposing civil or criminal sanctions (other than through
licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment,
unauthorized aliens.”161
In recent years, some states and localities concerned with the employment of unauthorized aliens
within their jurisdictions have attempted to supplement federal law with enforcement measures of
their own, including by denying or revoking business licenses of entities who have hired
unauthorized aliens. Many of these measures have been subject to legal challenge, with courts
reaching conflicting rulings as to their permissibility.162 In 2007, Arizona enacted the Legal
Arizona Workers Act, which authorized state courts to suspend or revoke the business licenses of
entities found by state officials to have knowingly or intentionally hired aliens who were not
authorized under federal law to work in the United States.163 Arizona also required employers
within the state to confirm the employment eligibility of workers via the E-Verify program, a
generally voluntary program operated by the Department of Homeland Security and the Social
Security Administration that enables employers to verify an employee’s work eligibility. In 2009,
the Ninth Circuit upheld the Arizona law, which had yet to be enforced, against a challenge that it
was facially preempted by the INA and other federal measures.164 The U.S. Supreme Court has
granted the Chamber of Commerce’s petition for certiorari in this case to determine whether the
Arizona law is expressly or impliedly preempted.165
Section 5 of S.B. 1070 establishes new measures to deter the employment of unauthorized aliens
within Arizona. Most significantly, S.B. 1070 makes it a misdemeanor offense for an unlawfully
present alien, lacking authorization to work in the United States, “to knowingly apply for work,
solicit work in a public place or perform work as an employee or independent contractor in this
state.”166 The approach taken by S.B. 1070 to deter the employment of unauthorized aliens is
markedly different from that established under IRCA, potentially raising preemption concerns.
On its face, Arizona’s imposition of criminal penalties upon unlawfully present aliens who seek
employment in the state does not appear to be expressly preempted by the INA. The regime
established by the INA to deter the employment of unauthorized aliens primarily imposes
160 INA § 274A; 8 U.S.C. § 1324a.
161 INA § 274A(h)(2); 8 U.S.C. § 1324a.
162 For further discussion, see CRS Report RL34345, State and Local Restrictions on Employing, Renting Property to,
or Providing Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments, by Jody Feder and
Alison M. Smith.
163 Ariz. H.B. 2745 (2008). Further information regarding the act, as amended, is available at http://www.azag.gov/
LegalAZWorkersAct/.
164 Chicanos por la Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009). The court cautioned, however, that “[i]f and
when the statute is enforced, and the factual background is developed, other challenges to the Act as applied in any
particular instance or manner will not be controlled by our decision.” Id. at 980.
165 See Supreme Court of the United States, Granted and Noted List for October Term 2010 Arguments, available at
http://www.supremecourt.gov/orders/10grantednotedlist.pdf.
166 S.B. 1070, § 5. Section 5 of S.B. 1070 also makes minor modifications to the Legal Arizona Workers Act, though
these amendments do not seem to immediately raise any significant issues. It also imposes penalties upon the roadside
hiring of laborers. The legal implications of these penalties are discussed supra, at “Criminalizing the Hiring of Persons
Picked Up Along Roadways.”
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sanctions upon employers, rather than alien employees (though aliens may be subject to penalty if
they use fraudulent documents to circumvent work eligibility requirements167). While the INA, as
amended by IRCA, contains a provision expressly preempting states and localities from imposing
criminal or civil penalties upon employers of unauthorized aliens, this provision does not
expressly preempt state sanctions against unauthorized alien employees.
An examination of the legislative history behind the enactment of IRCA suggests its focus upon
employers was intentional. Although there appears to have been some consideration given to the
possibility of imposing criminal sanctions upon unauthorized aliens who sought employment in
the United States, Congress did not pursue this option. Describing the legislative history and
purposes of IRCA in 1990, the Ninth Circuit stated that in establishing a federal regime to deter
the employment of unauthorized aliens, “Congress quite clearly was willing to deter illegal
immigration by making jobs less available to illegal aliens but not by incarcerating or fining
aliens who succeeded in obtaining work.”168 Although the INA was amended in 1990 to establish
civil penalties for immigration-related document fraud, including the presentation of fraudulent
documents to demonstrate work eligibility,169 and other criminal statutes may apply to those
aliens who seek employment through the use of fraudulent documents or false statements,170 the
federal regime does not impose any penalties against aliens solely on account of working or
seeking employment in the United States.
In its suit challenging S.B. 1070, the DOJ claimed that the provision of the Arizona statute
imposing criminal penalties upon unlawfully present aliens who work or seek employment in the
state had been impliedly preempted. The reviewing district court has issued a preliminary
injunction barring the provision’s enforcement pending a final ruling in the case, having
concluded that the government was likely to succeed on the merits of its claim. Citing Ninth
Circuit precedent, the district court stated that there was a presumption against preemption
applied with respect to S.B. 1070’s regulation of the employment of unauthorized aliens within
the state, as the regulation of such activity “remains within the states’ historic police
powers….”171 However, the district court’s examination of the IRCA and INA provisions
regarding document fraud caused it to nonetheless conclude that Congress had “comprehensively
regulated … the field of employment of unauthorized aliens,” including through the imposition of
167 See INA § 274C, 8 U.S.C. § 1324c (establishing civil penalties for immigration-related document fraud); INA §
274a(b)(2), 8 U.S.C. § 1324a(b)(2) (providing that false attestations of employment eligibility are subject to penalty of
perjury).
168 National Center for Immigrants’ Rights, Inc. v. I.N.S., 913 F.2d 1350 (9th Cir. 1990) rev’d on other grounds, 502
U.S. 183 (1991) (“While Congress initially discussed the merits of fining, detaining or adopting criminal sanctions
against the employee, it ultimately rejected all such proposals…. Instead, it deliberately adopted sanctions with respect
to the employer only .… Although some continued to argue for restraints against the employee, the approach of
controlling employment through employer not employee sanctions was adjudged by Congress to provide the only
realistic and appropriate solution.”). See also, e.g., House Jud. Comm., H.REPT. 99-682 (1986)(I), at 48 (“Employment
is the magnet that attracts aliens here illegally or, in the case of nonimmigrants, leads them to accept employment in
violation of their status. Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens
and this, in turn, will deter aliens from entering illegally or violating their status in search of employment…. Now, as in
the past, the Committee remains convinced that legislation containing employer sanctions is the most humane, credible
and effective way to respond to the large-scale influx of undocumented aliens.”).
169 INA § 274C, 8 U.S.C. § 1324c.
170 For discussion of some of the potentially applicable laws, see CRS Report RL32657, Immigration-Related
Document Fraud: Overview of Civil, Criminal, and Immigration Consequences, by Michael John Garcia.
171 Arizona, 703 F.Supp.2d at 1000 (quoting Chicanos por la Causa, Inc. v. Napolitano, 544 F.3d 976, 984 (9th Cir.
2008)).
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sanctions upon those who employ unauthorized aliens and unlawful alien employees themselves
when such persons use fraudulent documents to obtain work.172 According to the district court,
these “extant actions in combination with an absence of regulation for the particular violation of
working without authorization,” indicated that Congress did not intend for unlawfully present
aliens to receive sanctions solely on account of seeking or obtaining work.173 The court therefore
concluded that Arizona’s imposition of criminal penalties for such conduct “conflicts with a
comprehensive federal scheme and is preempted.”174
IV. Racial Profiling Issues
In the 1968 case of Terry v. Ohio, the Supreme Court held that the Fourth Amendment permits a
law enforcement officer to stop and briefly detain a person when the officer reasonably suspects
that the person has committed a crime.175 Reasonable suspicion may not be based on a mere
hunch, but instead upon “specific reasonable inferences which [the officer] is entitled to draw
from the facts in light of his experience.”176 Section 2 of S.B. 1070, as amended by H.B. 2162,
generally requires that in the context of a lawful stop, detention or arrest by state and local law
enforcement pursuant to the enforcement of a state or local law, law enforcement must determine
the person’s immigration status, if practicable, when “reasonable suspicion exists that the person
is an alien … who is unlawfully present in the United States.”177 Some have expressed concern
that this provision may lead to the harassment of certain racial and ethnic groups by Arizona law
enforcement. The Arizona statute does not expressly prohibit law enforcement from relying, at
least in part, upon an individual’s racial or ethnic background when assessing whether to pursue
an inquiry into the person’s immigration status; instead, as amended by H.B. 2162, it provides
that law enforcement may not consider the race, color, or national origin of an individual when
determining whether there is reasonable suspicion to believe the person is an unlawfully present
alien, “except to the extent permitted by the United States or Arizona Constitution.”178
Although the issue was not raised in the DOJ’s lawsuit challenging S.B. 1070, some have
expressed concern that enforcement of S.B. 1070 would lead to constitutionally impermissible
“racial profiling.”179 Partially to address such concerns, Arizona Governor Jan Brewer issued an
executive order on the same day she signed the bill into law, which requires state law
enforcement officers to undergo training concerning the implementation of S.B. 1070. Among
other things, such training is intended to “provide clear guidance to law enforcement officials
regarding what constitutes reasonable suspicion, and shall make clear that an individual’s race,
172 Id. at 1002.
173 Id. (internal quotations omitted).
174 Id.
175 392 U.S. 1 (1968).
176 Id. at 27.
177 The act does not require a determination to be made when “the determination may hinder or obstruct an
investigation.” Further, a person is presumed not to be an unlawfully present alien if he can provide specified
documentation. S.B. 1070, § 2.
178 H.B. 2162, § 3. Prior to amendment, S.B. 1070 provided that race, color, or national origin could not be the “sole
factor” considered in determining whether there was reasonable suspicion to believe a person was an unauthorized
alien, except to the extent permitted by the U.S. or Arizona Constitutions. S.B. 1070, § 2.
179 See, e.g., Friendly House, supra footnote 3, at 47-51.
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color or national origin alone cannot be grounds for reasonable suspicion to believe any law has
been violated.”180
Whether or not it is constitutionally permissible for race, ethnicity, or national origin to be
considered as a factor by Arizona authorities when determining whether to inquire into a person’s
immigration status may depend upon a number of considerations. On several occasions, courts
have decided cases involving law enforcement authorities stopping persons for suspected
immigration violations on account of those persons’ suspected Mexican ancestry. Supreme Court
jurisprudence holds that race or ethnicity cannot be the sole factor giving rise to a law
enforcement stop for suspected immigration violations, but that at least in cases near the U.S.-
Mexican border, stops may be partially based on race.181 Nevertheless, the Court has suggested
that a different conclusion might be reached if stops based partially on Mexican ancestry occur in
places farther removed from the U.S.-Mexican border.182
In 2000, the Ninth Circuit, sitting en banc, ruled that the Border Patrol could not take into account
Hispanic origin when making stops in Southern California, concluding that in areas “in which the
majority—or even a substantial part—of the population is Hispanic,” as was the case in Southern
California, the probability that any given Hispanic person “is an alien, let alone an illegal alien, is
not high enough to make Hispanic appearance a relevant factor in the reasonable suspicion
calculus.”183 This ruling would seem to preclude Arizona law enforcement from using Hispanic
origin as a factor in the “reasonable suspicion” test in areas with similar demographics as
Southern California.
In sum, court jurisprudence indicates that Arizona law enforcement may not stop persons for
suspected immigration-related violations solely on account of such persons’ race or ethnicity, but
that at least in certain circumstances, suspicion may partially be based on such considerations.
Additional considerations, including population demographics, may also affect the weight to
which suspicions based on race or ethnicity may be permissibly given.
V. Conclusion
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. Although a federal district court has issued a preliminary injunction barring
implementation of some provisions of S.B. 1070, the ultimate legal fate of these provisions (as
well as those which were not enjoined by the district court) remains to be decided. At least some
other states and localities that see themselves as heavily impacted by unauthorized immigration
180 Arizona State Executive Order 2010-09, Establishing Law Enforcement Training for Immigration Laws, Apr. 23,
2010, available at http://www.azgovernor.gov/dms/upload/EO_201009.pdf.
181 Compare United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (ruling unconstitutional a roving stop of a vehicle
by the Border Patrol near the U.S.-Mexican border, when the stop was based solely on the vehicle occupant’s apparent
Mexican ancestry) with United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (permitting the stopping of persons at
fixed inspection checkpoints near the Mexican border when such stops were partially based on race).
182 Martinez-Fuerte, 428 U.S. at 563, n.17.
183 United States v. Montero-Camargo, 208 F.3d 1122, 1132 (9th Cir. 2000).
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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.
Author Contact Information
Kate M. Manuel
Larry M. Eig
Legislative Attorney
Specialist in American Public Law
kmanuel@crs.loc.gov, 7-4477
leig@crs.loc.gov, 7-7896
Michael John Garcia
Legislative Attorney
mgarcia@crs.loc.gov, 7-3873
Acknowledgments
Former CRS Legislative Attorney Yule Kim contributed to an earlier version of this report.
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