On June 25, 2012, the US Supreme Court, in a 5-3 decision, issued its much anticipated decision in Arizona v. United States [pdf], striking down three provisions of the Arizona law S.B. 1070, and upholding a fourth. The case arose from the State of Arizona’s appeal of an injunction blocking four parts of the immigration law. The four provisions are summarized as follows:
•Section 2(B) requires local law enforcement to verify the immigration status in any lawful stop, detention, or arrest any time in which they have “reasonable suspicion” that someone is unlawfully present. This has been labeled as the “show me your papers” provision;
•Section 6 authorizes warrantless arrests for individuals presumed (based on “reasonable suspicion”) to have committed a deportable offense;
•Section 3 creates a state crime for failure to carry immigration status papers at all times (this provision mirrors a longstanding but seldom enforced federal law); and
•Section 5 creates a state criminal penalty for those found working while unlawfully present.
Enforcement of these four contested provisions of the law, officially known as the Support Our Law Enforcement and Safe Neighborhoods Act, had been enjoined by a temporary injunction issued by the US District Court for the District of Arizona in 2010. The Court declared that three provisions were preempted by federal law and cannot be enforced. However, the controversial “show me your papers” provision, requiring state officers to make a “reasonable effort” to determine the immigration status of anyone they stop, detain or arrest, and as to whom there is “reasonable suspicion” of unlawful presence in the US, was not found to be preempted by federal law and will now be enforced by Arizona law enforcement officers.
How this law will be enforced is the subject of much discussion and controversy. In fact, in its majority opinion, the Court indicated that its decision does not foreclose other preemption and constitutional challenges after the law goes into effect. Shortly after the decision, a spokesman from the Maricopa County Sheriff’s office declared that officers will not be expected to allow contact with ICE to impede investigations, and communication with federal officials will not mean suspects are unnecessarily detained. Phoenix Police Chief Daniel Garcia attempted to make similar reassurances declaring that Phoenix was prepared to “err on the side of protecting civil rights.” Moreover, US Attorney General Holder indicated that the federal government is going to be watching how Arizona and other states implement the “show me your papers” laws. In a post-decision statement, he stated:
I want to assure communities around this country that the Department of Justice will continue to vigorously enforce federal prohibitions against racial and ethnic discrimination. We will closely monitor the impact of S.B. 1070 to ensure compliance with federal immigration law and with applicable civil rights laws, including ensuring that law enforcement agencies and others do not implement the law in a manner that has the purpose or effect of discriminating against the Latino or any other community.
Although the case addressed only Arizona’s law, many states are impacted by the decision as they have enacted or are considering similar legislation. Alabama, Georgia, Indiana, South Carolina, and Utah have all passed laws modeled after S.B. 1070. Further, 24 other states have similar bills introduced in their legislatures. Although the ultimate fate of these laws has not yet been completely determined, any provisions modeled after Sections 3, 5(C), and 6 of S.B. 1070 are unlikely to be enforced.
In the wake of the decision, employers should be aware that although states cannot create new immigration laws or attempt to bolster the penalties for existing federal immigration laws, many states can and will encourage their police to determine the immigration status of individuals who are detained. Moreover, several states can be expected to push the limits of this ruling, encouraging their officers to enforce existing federal law under the auspices of consultation and communication with the federal government. In addition, last year’s Supreme Court decision in Chamber of Commerce v. Whiting upheld state enactment of laws requiring employers to register with the federal government’s web-based E-Verify program for I-9 employment authorization verification purposes. At present, 9 states require (or are in the process of implementing legislation that will require) private employers to register in E-Verify and another 6 states require state contractors to register. Employers should ensure that they are complying with all federal laws and E-Verify requirements, especially when employing foreign national employees in states that have enacted immigration legislation and E-Verify requirements.