On June 25, 2012, the U.S. Supreme Court struck down three key provisions of Arizona's controversial immigration law. Specifically, the Supreme Court struck down provisions that: (1) made failing to comply with federal alien registration requirements a state misdemeanor; (2) made it a state misdemeanor in Arizona for an alien without work authorization to seek employment; and (3) authorized state and local police to arrest a person when there was probable cause that the person has committed a public offense that made the person removable. The Court upheld one provision, which required state and local police to verify a person's immigration status when stopped, detained or arrested.
The Supreme Court's ruling was based on the Supremacy Clause of the US Constitution, which provides that the US Constitution and the laws of Congress in pursuance thereof are the supreme law of the land. Article I of the Constitution specifically gives Congress the power to regulate immigration. Because the US Government has a comprehensive scheme for enforcing US immigration laws, the states cannot adopt their own immigration enforcement laws.
To put it in simple terms, the US Government has its own priorities in how it expends its resources in enforcing immigration law. It's priorities include violent criminals, drug trafficking and repeat offenders. State Governments cannot trump those priorities by making it a state crime to fail to comply with US immigration law.
On this point, I think it is important to note that being present in the United States without immigration status may be a violation of civil immigration law. However, it is not a criminal violation. The Supreme Court essentially said that the states cannot make it a criminal violation. That is the Federal Government's job.
Indeed, state action to criminalize illegal presence, illegal work, and failing to register with the Federal Government may actually conflict with Federal policies. Specifically, it would conflict with the policies recently announced by the Obama Administration concerning young people who were brought to this country at an early age. It would also conflict with Federal law, which essentially forgives illegal work when a person who is out of status is married to a US citizen, and applies to adjust to permanent residency.
All in all, the Supreme Court's decision appears to have gotten the law correct. A copy of the decision can be found at http://www.supremecourt.gov/opinions/11pdf/11-182.pdf.
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