The Jersey Lawyer

On June 25, 2012, the United States Supreme Court ruled on the constitutionality of the controversial Arizona immigration law.  In Arizona v. United States, the Supreme Court struck down three out of four of the key provisions of the Arizona law.  The controversial Arizona law was passed in 2011.  Shortly after it was passed, the United States filed a suit against Arizona seeking to enjoin enforcement of the statute as preempted by federal law.

The Arizona law contained four main provisions.  First, the law made failure to comply with federal alien registration requirements a state misdemeanor.  The Supreme Court held that this provision intrudes on the field of alien registration, which is in the sole purview of the federal government.  The Court determined that this provision would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Second, the law made it a misdemeanor for an unauthorized alien to seek work in Arizona.  The Supreme Court determined that this provision stands as an obstacle to the federal regulatory system.  Federal law imposes criminal penalties on employers who knowingly hire undocumented immigrants; however, federal law only imposes civil penalties on the undocumented immigrants themselves.  Therefore, Congress has already decided that it would be inappropriate to impose criminal penalties on unauthorized employees and a state law to the contrary is an obstacle to the regulatory system Congress chose.

Third, the law authorized local police officers to conduct warrantless arrests of any person “the officer has probable cause to believe…has committed any public offense that makes a person removable from the United States.”  The Supreme Court first noted a fact that many critics of illegal immigrants fail to realize – that it is generally not a crime for a removable alien to remain in the United States.  Federal law instructs when an alien should be arrested during the removal process and under what circumstances the arrest may be accomplished without a warrant.  A state law cannot provide local officers with greater arrest authority than what Congress has given to federal authorities.

Fourth, the law provides that officers who conduct a stop or arrest must make efforts to verify the person’s immigration status with the federal government.  The Supreme Court determined that there was not enough information before the Court for the Court to rule on this issue.  It was unclear to the Court whether the law will require state officers to delay the release of detainees for no reason other than to verify their immigration status.  If that is the case, the provision may not survive constitutional scrutiny.  However, if no delays are caused, there is nothing inappropriate about requiring local officers to determine a detainees immigration status, and report those results to Immigration and Customs Enforcement.

This article was written by New Jersey criminal defense lawyer Nace Naumoski.

Nace Naumoski – nace@naumoski.com