Supreme Court: Federal Immigration Power Bars State Attempt to Regulate Employment of Illegal Immigrants

Todd Steenson is a Partner in our Chicago office.

In a much-anticipated ruling, the U.S. Supreme Court has reiterated that the federal government controls national immigration policy — that the national government is the "single sovereign" in charge of "a comprehensive and unified system to keep track of aliens within the nation's borders." Arizona v. United States, No. 11–182 (June 25, 2012).

Of particular importance to employers, the Court struck down a provision of an Arizona law that made it a crime for a non-citizen illegally in the state to either apply for work, accept employment or perform work as an employee or independent contractor. The decision will likely preclude most state efforts to prevent illegal immigrants from obtaining employment inside state borders. Employers remain subject to federal prohibitions on the employment of undocumented workers, of course.

Background

In an effort to avoid the effects of illegal immigration, the state of Arizona in 2010 enacted what has become known as S.B. 1070. The law included several criminal provisions intended to encourage illegal aliens to leave Arizona. It made it a crime to be in Arizona without legal immigration papers (Section 3); directed state police to arrest — without a warrant — anyone believed to have committed any crime that would lead to deportation (Section 6); and required officers who arrest an individual for a suspected violation of law and who have reason to believe the individual is an undocumented immigrant to detain that individual until they can check with the federal government concerning the legality of that individual's presence in the United States (Section 2(B)). The law also made it a state 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" in Arizona. Section 5(C).

The federal government challenged S.B. 1070 as "preempted" by federal power over immigration matters and specific immigration laws passed by Congress. Lower federal courts ruled that the four provisions of the law described above impermissibly conflict with the national power over immigration and congressional immigration laws and are thus invalid. The dispute went to the high court.

Supreme Court's Decision

The Supreme Court ruled that the provisions criminalizing undocumented presence in Arizona (Section 3), the warrantless arrest provision (Section 6) and the provision criminalizing...