Arizona v. United States

PETITIONER: Arizona et al.
RESPONDENT: United States
LOCATION: Arizona State Capital Building

DOCKET NO.: 11-182
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 567 US (2012)
GRANTED: Dec 09, 2011
ARGUED: Apr 25, 2012
DECIDED: Jun 25, 2012

Donald B. Verrilli, Jr. - Solicitor General, Department of Justice, for the respondent
Paul D. Clement - for the petitioners

Facts of the case

On April 23, 2010, the Arizona State Legislature passed S.B. 1070; Governor Jan Brewer signed the bill into law. On July 6, 2010, the United States sought to stop the enforcement of S.B. 1070 in federal district court before the law could take effect. The district court did not enjoin the entire act, but it did enjoin four provisions. The court enjoined provisions that (1) created a state-law crime for being unlawfully present in the United States, (2) created a state-law crime for working or seeking work while not authorized to do so, (3) required state and local officers to verify the citizenship or alien status of anyone who was lawfully arrested or detained, and (4) authorized warrantless arrests of aliens believed to be removable from the United States.

Arizona appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit. The appellate court affirmed the district court's decision, holding that the United States had shown that federal law likely preempted: (a) the creation of a state-crime for violation of federal registration laws, (b) the creation of a state-crime for work by unauthorized aliens, (c) the requirement to verify citizenship of all detained persons, and (d) the authorization for police officers to effect warrantless arrests based on probable cause of removability from the United States. Arizona appealed the court's decision.


Do the federal immigration laws preclude Arizona's efforts at cooperative law enforcement and preempt the four provisions of S.B. 1070 on their face?

Media for Arizona v. United States

Audio Transcription for Opinion Announcement - June 25, 2012 (Part 1) in Arizona v. United States
Audio Transcription for Oral Argument - April 25, 2012 in Arizona v. United States

Audio Transcription for Opinion Announcement - June 25, 2012 (Part 2) in Arizona v. United States

Antonin Scalia:

I would uphold all the provisions of the Arizona law.

For almost a century after the Constitution was ratified, there were no federal immigration laws except one of the infamous alien -- alien and sedition acts that was discredited and allowed to expire.

In that first century, all regulation of immigration was by the states, which excluded various categories of would be immigrates, including convicted criminals and indigents.

Indeed, many questioned whether the federal government had any power to control immigration.

That was Jefferson's and Madison's objection to the Alien Act.

The State's power to control immigration, however, has always been accepted and is indeed reflected in some provisions of the Constitution.

The provision that, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several states was a revision of the provision in the article of -- articles of confederation which gave those privileges and immunities, not to citizens of other states but to inhabitants of other states."

It was revised because giving that protection to mere inhabitants would allow the immigration policies of one State to be imposed on the others.

Even that revision was thought not to be enough because the states were not willing to have their immigration policies determined even by the citizenry -- citizenship requirements of other states, hence the Naturalization Clause of the constitution which enables the federal government to control who can be a citizen.

Of course the federal power to control immigration was ultimately accepted and rightly so, but where does that power come from?

Jefferson and Madison were correct that it is nowhere to be found in the Constitution's enumeration of federal powers.

The federal power over immigration cannot plausibly derive from the Naturalization Clause which is what the government asserted.

Not only does the power to confer citizenship have nothing to do with the power to exclude immigrants, but as I have described, the Naturalization Clause was a vindication of State rather than federal power over immigration.

Federal power over immigration comes from the same source as state power over immigration.

It is an inherent attribute, perhaps the fundamental attribute of sovereignty.

The states of course are sovereign, the United States being a union of sovereign states.

To be sovereign is necessarily to possess the power to exclude unwanted persons and things from the territory.

That is why the Constitution's prohibition of a state's imposing duties on imports made an exception for "what may be absolutely necessary for executing its inspection laws."

Thus, this Court's cases have held that the states retain an inherent power to exclude.

That power can be limited only by the Constitution or by laws enacted pursuant to the Constitution.

The Constitution as we have seen does not limit a State's power, but to the contrary vindicates it so the question in this case is quite simply whether the laws of the United States forbid what Arizona has done.

Our cases have held with regard to claimed federal abridgement by law of another inherent sovereign power of the states namely, their sovereign immunity from suit, that any abridgement by Congress must be "unequivocally expressed."

The same requirement must apply here and there is no unequivocal congressional prohibition of what Arizona has done.

It is not enough to say that the federal immigration laws implicitly "occupy the field,” so-called field preemption.

No federal law says that the states cannot have their own immigration law.

Of course the Supremacy Clause establishes that federal immigration law is supreme so that the State's immigration laws cannot conflict with it, cannot admit those whom federal law would exclude or exclude those whom federal law would admit, but that has not occurred here.

Arizona has attached consequences under state law to acts that are unlawful under federal law.

Illegal aliens' presence in Arizona and their failure to maintain what they have on their person evidence of federal alien registration.

It is not at all unusual for a state law to impose additional penalties or attach additional consequences to acts that are unlawful under federal law.

State drug laws are a good example.