xHy6q3tlES03icFc1tB2cVyFpbaIsJ: Arizona

On June 25, 2012, the United States Supreme Court ruled that certain key provisions of Arizona's controversial immigration law (known as SB-1070) were unconstitutional, while upholding just one of its provisions. Justice Anthony Kennedy wrote the majority opinion.

To understand how the law may or may not affect foreign physicians working in the United States--and in Arizona specifically--it is important to first have an overview of the Supreme Court's mixed decision in the case. The sections of the Arizona immigration law that were struck down by the Supreme Court were as follows:

SB-1070: Failing to obtain and carry federal immigration registration documents is a crime. Supreme Court: "Permitting the state to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted." SB-1070: It is a crime for undocumented immigrants to work or apply for work. Supreme Court: Federal law imposes civil penalties, not criminal penalties, for undocumented immigrants who engage in unauthorized work. Although the Arizona law "attempts to achieve one of the same goals as federal law--the deterrence of unlawful employment--it involves a conflict in the method of enforcement." SB-1070: Warrantless arrests are authorized when there is probable cause to believe a person has committed an offense warranting deportation. Supreme Court: Under federal law, an administrative document is issued when a non-citizen is subject to deportation. The U.S. Attorney General has discretion to authorize an arrest pending a removal decision. The Arizona law authorizes arrests without federal input. "The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed."

In the high court's opinion, Justice Kennedy wrote that it is "fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate states... Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law."

The provision of the Arizona immigration law that was upheld by the Supreme Court is as follows:

SB-1070: State and local police are authorized to check the immigration status of people who are lawfully stopped, detained, or arrested, if there is a reasonable suspicion that the individual is in the United States illegally. Supreme Court: "At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume [the status-check provision] will be construed in a way that creates a conflict with federal law... This opinion does not foreclose other pre-emption and constitutional challenges to the law as interpreted and applied after it goes into effect."

William T. Robinson III, president of the American Bar Association (ABA), in a press release pertaining to the ruling, wrote the following regarding the provision of the Arizona law upheld by the Supreme Court: "In light of the court's ruling that upholds immigration status checks by state law-enforcement officials... that are conducted consistent with federal immigration and civil rights laws, the ABA calls on authorities to avoid unnecessary, prolonged detention of individuals who are lawfully present in the United States."

In our next article we will briefly discuss how this upheld provision of the Arizona immigration law may affect foreign nationals legally working and/or traveling in Arizona, and what documentation they should keep with them in the event of a lawful stop and immigration identification check.

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What did the United States Supreme Court Do in Arizona v. United States? It told the States that they can't expect to fix their immigration problems by writing their own immigration laws anytime soon.

Background

Wanting to look tough on the immigration problem (and wanting to scapegoat the Obama Administration for it), back in April 2010, the Governor of Arizona, Jan Brewer, claimed it was time for Arizonans to take matters into their own hands and pass some tough laws. And that's what they did.

Arizona Senate Bill 1070 created some state (Arizona-only) crimes that were supposed to punish illegal immigrants. Instead it angered and scared Latinos in the Southwest United States and predictably gave conservatives and liberals another reason to yell about how messed up our Country is. So here's what the Arizona law tried to do:

Make it an Arizona crime for an unauthorized alien to seek or engage in work in the State of Arizona; Make it an Arizona crime to fail to comply with federal alien registration requirements; Authorize Arizona police officers to arrest - without a warrant - anyone "the officer has probable cause to believe... has committed any public offense that makes the person removable from the United States"; and Provide that Arizona officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person's immigration status with the Federal Government (the infamous "show me your papers" provision).

And while the goal of keeping illegal immigrants out of American neighborhoods and jobs might be a worthy one, the United States Supreme Court considered if these four provision respected the constitutional rules which States and the federal government need to follow in order to peacefully co-exist.

The Decision - Arizona v. United States

In a 5-3 decision authored by Justice Kennedy, the Court found that provisions 1-3 mentioned above were unconstitutional. But it said that the 4th provision might be unconstitutional, yet it was too early to tell given the lack of evidence that the law was doing harm to the federal government's ability to deal with immigration. So, the Court sent that provision back to Arizona to see if it could be constitutionally put to work.

The legal issues in this case involve the constitutional rules behind how the States and the federal government co-exist in our democratic (as in, we vote for our leaders) republic (as in we're a group of states that are all in this national boat together).

So what happens when a State, like Arizona, disagrees with how the federal government is addressing immigration? Can that State simply write its own rules, use its police as it wants, and return the illegal immigrants it catches to their country of origin? Here's what the Supreme Court considered.

First, they considered the Supremacy Clause (as in, "The federal law is the supreme law of the land"). The Supremacy Clause was drafted when the States of our young Nation decided to join hands and become a republic. At that time they agreed, by a Constitution they ratified, that they would not be allowed to regulate conduct that Congress determined should be left to the federal government to handle. This case highlights the fact that our founding fathers wrote a Constitution which explains rather explicitly in the Supremacy Clause that federal law trumps state law when federal and state laws conflict.

In addition to the Supremacy Clause, the Court considered something called, "field preemption." Where the federal system creates an all-encompassing, pervasive regulatory scheme over a given area or "field" of law, then that scheme stops the enforcement of state laws on the same subject. The Court noted that immigration is an area of law in which Congress enacted an all-embracing system of alien registration and that States cannot enforce additional or extra regulations as they might wish. The Court found that this federal scheme shut down Arizona's attempt to impose additional, State law penalties for violations of the federal alien registration laws.

The Supreme Court also went a step further and gave thought to the problems that would emerge and affect the fabric of our very Nation if States did their own thing with respect to immigration:

Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation's borders. If [some of the provisions] of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, diminishing the Federal Government's control over enforcement and detracting from the integrated scheme of regulation created by Congress. And so, for the conflicts created by 3 provisions in the Arizona law which are identified above, the Supreme Court struck those provisions as violating the Supremacy Clause.

But one provision, section 2(B), survived. It's the now infamous "show me your papers" provision. This part of the law provided that Arizona officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person's immigration status with the Federal Government. In practice, the officers ask an individual to "show me your citizenship papers." If the individual can do that, then they are free to go. Otherwise, they're possibly going to get deported.

When it argued this matter to the Supreme Court, the federal government said that section 2(B) was pre-empted, not by any federal statute or regulation, but simply by the Executive Branch's (i.e., President's) current enforcement policy. In his separately authored opinion, Justice Alito called that "an astounding assertion of federal executive power that the Court rightly rejects."

The Court found, essentially, that section 2(B) might be capable of being used legally in concert with the Federal Government. The Court reasoned:

It was improper [for the trial judge] to enjoin [the Arizona law] before the state courts had an opportunity to construe it and without some showing that section 2(B)'s enforcement in fact conflicts with federal immigration law and its objectives.

The Court found that the federal trial judge acted too hastily when he struck down the law before it went into actual implementation. The Court noted that the State of Arizona interfaces with different immigration agencies all the time. It surmised that the mere verification of immigration status by Arizona officers or jail personnel could conceivably be put to use without violating the Constitution.

And so the Court decided that the law could go back to Arizona for implementation - but just this one remaining piece.

In plain English, that's what happened here.