Topics Immigration

Legal Alert: Supreme Court Bars Arizona, Other States From Criminalizing Alien Employment

Date   Jun 26, 2012

The key takeaway for employers from the Supreme Court's ruling yesterday on Arizona's controversial Senate Bill (SB) 1070 law is that states cannot make criminals out of those in their jurisdiction who work or seek employment while unlawfully in the United States.  The 5-3 decision, written by Justice Anthony Kennedy, held that Congress already has "decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment."  Thus, Section 5 of SB 1070, the only provision dealing directly with the employment of undocumented aliens, will never go into effect.

Only one provision upheld – for the moment

Only one of the four provisions of the 2010 Arizona law survived Supreme Court scrutiny, and that provision remains in considerable jeopardy, depending on how it is applied and interpreted by Arizona courts.

The one provision of SB 1070 that the Court will allow to go into effect is Section 2(B), which requires state officers to make "a reasonable attempt . . . to determine the immigration status" of any person they stop, detain, or arrest on some other legitimate basis "if reasonable suspicion exists that the person is an alien and is unlawfully present in the United States." 

It was premature for the federal district court in Phoenix to enjoin that provision before it ever took effect, because Arizona's "state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry."  The Court was unanimous on this point, with all eight participating justices voting to overturn the lower courts' ruling on Section 2(B).

The Court compared the requirement to check the immigration status of a detainee to the requirement to use the federal E-verify system to check the work status of job applicants adopted by the Legal Arizona Workers Act (LAWA), the state's 2008 immigration law that the Court upheld last term.  Because federal law itself establishes such a verification system under the auspices of the Immigration and Customs Enforcement (ICE) agency, "the federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter."

However, Justice Kennedy issued this clear warning to the state:  "Detaining individuals solely to verify their immigration status would raise constitutional concerns."

In addition to striking down the employment provision of SB 1070, the Court affirmed the lower courts' decisions preventing enforcement of Section 3, which made it a state crime to fail to obtain and carry alien registration documents, and Section 6, which permitted state officers to arrest without a warrant an alien based on probable cause to believe he or she is removable from the United States. 

The effect of the ruling in Arizona v. United States was to render SB 1070 mostly inconsequential in dealing with the real problems, explicitly acknowledged by the Court, that illegal immigration creates for Arizona.  "Arizona bears many of the consequences of unlawful immigration," Justice Kennedy wrote, stating further that the problems for the state "must not be underestimated."

Justice Kennedy was joined by Chief Justice John Roberts, as well as the three justices in the Court's liberal wing, Stephen Breyer, Ruth Bader Ginsberg, and Sonia Sotomayor.  Justice Samuel Alito joined the majority with respect to Section 3 as well as Section 2(B).  Justice Elena Kagan did not participate, because she had worked on the case while she was Solicitor General.

Justices Scalia, Thomas and Alito dissented with respect to Section 5 in separate opinions.  Justice Scalia was most outspoken in his support of all of the provisions of SB 1070 at issue in the case; he issued a 21-page written opinion that no other justice joined and underscored his displeasure by reading a different, seven-page statement from the bench.  He excoriated to Court's majority for leaving "the sovereign States at the mercy of the federal Executive's refusal to enforce the Nation's immigration laws."

Implications for other states

Arizona was the first state in modern times to venture into state regulation of immigration, but several other states have followed its lead adopting comprehensive enforcement statutes like SB 1070.  However only two states – Alabama and South Carolina – have adopted provisions similar to Section 5 of SB 1070 that provide criminal penalties for working or seeking work in their jurisdictions by aliens unlawfully in the United States.  Yesterday's SB 1070 ruling means it is only a matter of time before courts will invalidate these provisions imposing criminal sanctions on undocumented workers.

The Court's decision relied substantially on the Immigration Reform and Control Act (IRCA), enacted on a bipartisan basis in 1986 and signed into law by President Ronald Reagan as a comprehensive framework for combating the employment of illegal aliens.  Under IRCA, employers can face significant civil penalties that escalate based on the number of violations as well as criminal liability for hiring aliens without valid authorizations to work. 

On the employee side, however, IRCA imposes no criminal penalties.  The Court found that Congress made a deliberate choice not to impose the kind of employee sanctions Arizona and the five other states have adopted.  "IRCA's framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work – aliens who already face the possibility of employer exploitation because of their removable status – would be inconsistent with federal policy objectives," Justice Kennedy stated.

Data supports effectiveness of LAWA

Other states, including Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee and Utah, have followed Arizona's lead and adopted laws similar to LAWA that require employers to use the E-verify system in various circumstances.  Those legislative approaches appear to be having success.

The Pew Hispanic Center, a non-partisan, non-profit research center in Washington, D.C., recently reported equilibrium in the number of Mexicans coming to or going from the United States.  The Pew report, released on Monday, April 23, 2012, two days before the Supreme Court argument on SB 1070, concluded that the historic wave of immigrants from Mexico had come to a standstill.  In the period 2005 to 2010, according to the Pew report, the same number of Mexicans came to the United States as returned to Mexico, 1.4 million.  That compares to the five-year period from 1995 to 2000, in which 3 million Mexicans came to the United States while only 700,000 Mexicans and their U.S. born children returned home.

The report pegged the number of undocumented immigrants from Mexico at 6.1 million in 2011, down significantly from the estimated peak of 7 million in 2007.  The Pew data corresponds with Department of Homeland Security (DHS) estimates for Arizona.  In 2000, DHS estimated there were 330,000 illegal immigrants in Arizona, and by 2008 that number had increased to an estimated 560,000.  DHS's estimate for 2011 was that only 360,000 undocumented immigrants remained in the state.

Many experts believe the declining population of illegal immigrants in Arizona can be attributed to LAWA, which effectively blocked illegal immigrants from getting jobs with invented Social Security numbers.  LAWA went into effect in 2008, just before the decline in Mexican immigrants began.

Employers' bottom line

The Court's SB 1070 decision prevents states from imposing criminal sanctions on undocumented workers, but it does not in any way put the brakes on the innovations being advanced on the state level to impose burdens on employers to ensure their employees are legally permitted to work.  Thus, employers still need to be aware of, and comply with, their own state's regulations of their immigration-related hiring and employment practices.  For multi-state employers and state and federal contractors, that means keeping up with a patchwork of state and federal immigration laws.  Yesterday's ruling does not provide employers any immediate relief from the burden of state immigration requirements.

If you have any questions regarding the Court's decision or other labor or employment issues, please contact Dinita James, the partner in charge of our Phoenix office, at; Brian Cunningham, an associate in our Minneapolis office and a member of our Business Immigration practice group, at; or the FordHarrison attorney with whom you usually work. 

Dinita is the editor of the Arizona Employment Law Letter, and has been following Arizona's legislative initiatives on immigration since 2008.  In the June 2012 issue of the newsletter, she reported on the April 25, 2012 oral argument on SB 1070 and correctly predicted the Court's ruling on Section 5, including predicting the specific five justices who would vote to strike it down.  You can read her June 2012 article by clicking here.