Supreme Court SB 1070 Decision Analysis: Federal Courts Will Scrutinize 'Show Me Your Papers' Laws in More States

On Monday, the Supreme Court invalidated most of Arizona’s controversial immigration law, SB 1070, in a 5-3 decision authored by Justice Kennedy. The decision struck down three of the four provisions under review. The Court narrowly upheld the “show me your papers” provision, but cautioned that the future validity of that section depends on Arizona’s careful enforcement in lines with today’s decision.

“Immigration policy shapes the destiny of the Nation,” wrote Justice Kennedy for the majority, declaring that Arizona “may not pursue policies that undermine federal law.” His opinion was joined by Chief Justice Roberts, Justice Ginsburg, Justice Sotomayor, and Justice Breyer. Justices Scalia, Alito, and Thomas all filed separate dissents.

Justice Kennedy explained that the federal government has “broad, undoubted” authority to determine immigration policy. Describing immigration policy as “one of the most important and delicate of all international relationships,” Kennedy explained that U.S. immigration policy impacts international trade, investment, tourism, and diplomacy. For these reasons, Congress has long retained the extensive power to regulate immigration.

In striking down the three provisions of SB 1070, the Court emphasized that the different components of the state law conflicted with, and surpassed, congressional directives embodied in federal immigration policy. Accordingly, the Court reasoned, these portions of the Arizona law could not stand without contravening the Supremacy Clause of the Constitution.

Sections 3 of SB 1070 made it a state crime to violate federal immigration registration requirements. Likewise, Section 5 imposed a criminal penalty on unauthorized aliens who seek employment. The majority opinion explained that the penalties in Section 3 went far beyond those in the extensive federal registration scheme. Further, the Court emphasized, Congress specifically debated – and rejected – the imposition of the criminal sanctions authorized by Arizona. Because Congress placed criminal penalties only on the employer, and not the employee, Arizona could not do so. Federal law conflicted with, and thus trumped, sections 3 and 5.

Justice Kennedy reserved perhaps the harshest critique for Section 6, which authorized Arizona police officers to arrest any individual whom they believed was deportable. Kennedy explained that Arizona’s law attempted to give greater arrest powers to its state officials than those maintained by federal immigration authorities.

Because federal law requires cooperation between state and federal officials as a pre-condition for a state’s authority to help enforce immigration policy, the Court would not tolerate a state law that “unilaterally” attempted to reach beyond the scope of federal immigration law in such a manner.

Finally, the Court’s majority cautiously upheld Section 2(B), the “show me your papers” provision. Considering that the provision is somewhat ambiguous and has not yet been implemented, the majority reasoned that it is not yet clear that the provision is unconstitutional. Perhaps in an effort to show how narrowly it was upholding the provision, the Court gave several examples of how Arizona state courts might interpret the provision.

Although it did not analyze the issue of racial profiling, the subtext of the Court’s discussion of Section 2(B) appears to consider such a threat. 

The Court took pains to note that its opinion would not disqualify future lawsuits after the remaining portions of SB 1070 had been implemented. The Court emphasized that if Arizona enforced Section 2(B) in a manner which violated other aspects of federal law, it might prove to be unconstitutional. This language suggests that if racial profiling proves to be a problem with the implementation of Section 2(B), the Court might reconsider its constitutionality.

In affirming that the authority to regulate immigration principally remains a federal responsibility, the Court’s opinion will impact other state immigration laws. Arizona’s law caused the emergence of numerous copycat laws in other states, such as Alabama, Georgia, and South Carolina. While most of these state laws have been challenged in federal court, those lawsuits had been placed on hold until the Supreme Court could rule on SB 1070. Now that the Court has rendered its decision, the lower federal courts are likely to strike down large portions of the other state laws as well.

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Duncan Fulton

Duncan recently graduated with a J.D., magna cum laude, from Tulane University Law School. He focused his studies on public, constitutional, and immigration law, and was a Managing Editor of the Tulane Law Review. Prior to law school, Duncan received a B.A. from Vanderbilt University in Spanish & European Studies and worked for international development NGO in Ecuador. After becoming licensed, Duncan will practice immigration law.

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