Author: Melissa A. Silver, XpertHR Legal Editor

The Supreme Court has now ruled on several provisions of Arizona's Immigration Law in Arizona, et al. v. United States, +2012 U.S. LEXIS 4872 (June 25, 2012). In a 5-3 decision, the Court struck down three provisions while upholding one.

Back in 2010, Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act to "discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States." In the Arizona case, the Court was faced with determining whether four provisions of this law were preempted by federal law. The four provisions are as follows:

  1. Section 3, which prohibits the willful failure to complete or carry an alien registration document;
  2. Section 5(C), which makes it a misdemeanor for an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor;
  3. Section 6, which permits a state officer without a warrant to arrest a person if the officer has probable cause to believe that person has committed a public offense that makes him or her removable from the US; and
  4. Section 2(B), which requires state officers to make a reasonable attempt to determine the immigration status of any person stopped, detained, or arrested on some legitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully present in the US.

The Court struck down the first three provisions ruling that they are preempted by federal law, meaning that those sections either intrude in a field that Congress exclusively regulates or conflict with or present an obstacle to federal law, i.e. the Immigration Reform and Control Act of 1986 (IRCA).

Regarding Section 5(C) in particular, the Court held that because "Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment", this provision of Arizona's law is preempted by federal law since it presents an obstacle to IRCA.

The Court upheld Section 2(B) since enforcement did not conflict with federal immigration law and it had three limits built into the law. For instance, an individual who is detained is presumed not to be an illegal alien if that person provides a valid Arizona driver's license or similar identification. The Court did determine however, that this did not foreclose other preemption and constitutional challenges to the law after it goes into effect.

Although the Court struck down the portion of the law that imposed criminal penalties on unauthorized individuals who seek or engage in unauthorized employment, employers must still comply with IRCA by verifying the identity of their employees and that the employees are authorized to work in the US. The failure to do so exposes an employer to potential civil and/or criminal penalties. Therefore, this decision does not change an employer's obligations under IRCA.

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Additional Resources

Recruiting and Hiring > Immigration, Form I-9 and Work Visas