*1 ARIZONA al. v. UNITED STATES et Argued 25, 2012 No. April 11-182. Decided June *3 Court, Roberts, J., opinion delivered the which Kennedy, Scalia, J., J., JJ., joined. Ginsburg, Sotomayor, C. and Breyer, opin- p. 416, Thomas, J., Alito, J., post, filed post, post, p. p. Kagan, J., part no part dissenting ions took concurring part. in the consideration or of the case. decision *4 petitioners. argued With
Paul D. for Clement cause Christopher Barto- him on Dinh, the briefs D. H. were Viet Joseph Robert A. lomucci, Sciarrotta, Jr., Bouma, John J. Henry, Kelly Kszywienski. and argued
Solicitor General for the United Verrilli the cause Attor- States. With him on the Assistant brief were Acting ney Delery, Deputy Kneedler, General General Solicitor Deputy Attorney Brinkmann, William Assistant General Jay, Benjamin Stern, Abate, M. Mark B. Michael P. M. Tenny, Fong, Hongju Shultz, Daniel Ivan K. Harold and Koh.* *Briefs of amici urging curiae were reversal filed for the State of Michi- Schuette, gan by Bursch, et Attorney Michigan, al. Bill of General John J. General, Restuccia, Solicitor Deputy General, B. Eric Solicitor Mark and Sands, G. Attorney General, Assistant by Attorneys and for General
their respective States Strange Alabama, as follows:Luther of Pamela Jo Florida, Bondi of Georgia, Samuel S. Olens of Lawrence G. Wasden of Idaho, Gregory E Indiana, Kansas, Zoeller of of Derek Schmidt D. James “Buddy” Louisiana, Nebraska, Caldwell of Bruning of E. Jon Pruitt Scott Oklahoma, of Kelly Linda Pennsylvania, L. Alan Caro- Wilson South lina, Dakota, Marty Jackley J. of South Kenneth Vir- T. Cuccinelli II of McGraw, ginia, Jr., Darrell V. Virginia, Gregory Phillips of West and A. Wyoming; Ferrara; for Rights the American by Civil Union Peter for Unity American Legal by Barnaby Defense Fund W.Zall and John J. Park, Jr.; for Legislature by Gregrey Arizona Peter A. Gentala and G. Jernigan; for the for Jurisprudence Center Constitutional et by al. John Eastman, Caso, III, Klausner; C. Anthony T. Edwin Meese and Manuel S. Eagle for the Forum Legal by Education & Fund Lawrence Defense J. Joseph; Hutchison; Legal by for Landmark Foundation P. Richard for Legal Irion; the Liberty by Van R. Foundation for Members by Jay Sekulow, Roth, et al. Alan Colby May, Stuart J. M. B. Laura Hernandez, Hethmon; and Michael M. for the Civil Defense Minuteman Corps by et Gary Kreep; Legal al. for the Mountain G. States Foundation by Detamore; Kobach; by J. Scott for the Secure States Kris Initiative W. Legislators for State Legal Immigration for Paul by Orfanedes; et al. J. Muise, for by the Thomas More Law Center et al. Robert J. Yerus- David halmi, Thompson; Richard Joseph Arpaio by Liddy and for M. Thomas P. se; and Muthig; by Peter Joyce Joyce, pro for Lawrence J. Mr. State by Kercsmar; Senator Geoffrey Russell Pearce F. James Peterson and and Representative for United States by Lamar et al. Daniel J. Smith Popeo Samp. and Richard A. Briefs amici urging curiae of New affirmance were filed for State by Schneiderman, York, York et Attorney al. Eric T. General of New Clarke, Underwood, General, Barbara D. Solicitor C. Kristen Cecelia Chang, Deputy General, Wu, Solicitor Steven Assistant C. Solicitor General, Harris, by Attorney California, Kamala D. General of Manuel Medeiros, M. General, Verdugo, Attorney Solicitor Louis Assistant Senior General, and Zelidon-Zepeda, Deputy Antonette Attor- Cordero Jose neys General, Attorneys respective General their *5 opinion of Court. Kennedy delivered the
Justice large of pressing To related to the number address issues right to aliens its do not have a lawful within borders who Hawaii, Lisa Connecticut, M. of Jepsen follows: David Louie George of Iowa, Mary- Madigan Illinois, F. of Douglas Tom Miller of Gansler land, Peter Coakley Massachusetts, Kroger Oregon, John R. Martha Island, Vermont; H. for F. and Sorrell of Kilmartin of Rhode William W. by Douglas HI and Bar William T Robinson American Association Chang Baruch; by Civil Union et al. for American Liberties Jennifer Newell, Saenz, C. Joaquin, Karen Wang, D. A. Linton Cecillia Thomas Tumlin, Preciado, Perales, Pochoda, R. Steven A. Nina Daniel J. Nora Es- Gelernt, Jadwat, Segura, C. Nicholas Shapiro, Lee Omar Andre I. píritu, Newman, Bradley Phillips, Watford; for and Paul J. Chris Organizations American and of Industrial Federation of Labor Rhinehart, Ginsburg; J. for by Lynn B. and Coppess, K. James Matthew Freeman, by Bodney, M. League the Anti-Defamation David J. Steven Henry by et Argentina and al. Sheinberg; Steven C. for Government Solano; al. David J. Attorneys by L. Criminal et for Arizona for Justice Euchner; by Daryl et Employers Immigration for Arizona Reform al. for LaChance; Craig M. and Accountabil- Williams M. for Constitutional H. ity Kendall, Douglas Wydra, and David by Center T. Elizabeth B. Hansen, Gans; County Clara, California, by for Greta S. of Santa et al. Cowan, Nilson, Phelan, Jr., B. George R. Zach Michael A. William deSaussure, Jr., Gaines, Thye, Brough, Kenneth E. Dana M. Charlton Watkins, Nathan, Craig Attorney of Co- Irvin B. of the District General lumbia, Radson, Whitfield, Baker, Lynn Joseph Patrick W. Marion V. Bolden, Sato, May, Jenny Morf, Gerald P Victor A. Masahiro Michael M. Auerbach, Grewing, Cardozo, Koerner, Harry Michael A. Leonard J. Sara Stonebrook, Hendrickson, II, Den- P. Gerald T Edwin Rutan Martha S. Boler, Herrera, Holmes, Williams, nis M. John Jayne J. Peter S. Jean W. Schochet, Reaves; Terry B. McCrory, Michael John for W.L. Daniel Tenreiro; by Jorge for Former Goddard et al. Carmine D. Boccuzzi and G. Serv- Immigration Commissioners of the and Naturalization United States Gottlieb; by Rosenkranz, Pers, ice E. Joshua K. Jessica S. and Michael by for the and Alberto Partnership Greater Houston John P. Elwood Cardenas, Jr.; P. Human Leadership Conference on Civil and Bornstein; Morawetz, Rights by Henderson, Nancy et al. Wade Lisa Colyer; Congress by B. de L. Members Michael Leeuw and Jennifer Sloan, for the by La al. M. Charles National Council of Raza et Clifford Walker, F. Cen- Cartagena; Immigrant Justice Juan for the National al, Roth, Harrison, et Lindsay Carpenter, ter Vik- C. Julie M. Charles *6 country, be in this the State of Arizona in 2010 enacted Support statute called the Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as B.S. 1070, the version introduced in the State Senate. See also (2010) Leg., Reg. (amending H. B. 49th 2d Sess. B.S. 1070). purpose “discourage Its stated is to and deter entry presence activity unlawful and of aliens and economic by persons unlawfully present in the United Note States.” (West 2012). following Ariz. Stat. Rev. Ann. 11-1051 provisions policy law’s establish an official state of “attri- through question tion enforcement.” Ibid. The before pre-empts Court whether federal law and renders invalid separate provisions four of the state law. against seeking
I The United filed this Arizona, suit enjoin pre-empted.- provisions S. B. as Four of the law are at issue here. Two state Sec create new offenses. comply alien-registration tion 3 makes failure with requirements a state misdemeanor. Ariz. Rev. Stat. Ann. (West 2011). § 13-1509 Supp. part, Section in relevant Badrinath, Manning; ram Stephen K. W. by Republic and for the Haiti Solano; Mr. Rita John W.Whitehead and by for The Rutherford Institute Dunaway; Ste- by for the Employees Service International Union et al. Berzon, phen Scott, Baird, Weissglass, P. Judith A. Orrin Nich- Jonathan Clark, Szymanski; olas T. Bradley Raymond, W. and Patrick J. State for Pincus, Andrew A. J. Charles by and Local Law Officials Enforcement Rothfeld, Jeffrey Meyer; So- A. Mr. by and for Mexican States the United lana; et al. Brian Bishops by for the United States Conference Catholic Murray, Picarello, Moon; J. Anthony Jr., Jeffrey R. Hunter for and and Q. Waxman, Wolfson, P. Paul R. Seth Albright by Madeleine K. et al. Woodward, Shirley Cassin D. Michael Gottesman. and amici curiae were filed for Briefs Association of Bar of Sternberg; R. von Brian Mark City by by Larry of New York A. Dever for Bergin Frakes; L. and Kenneth Richard by EarthRights International Simons; Herz Larry Klayman; B. and Marco by Freedom Watch Olson, Titus, J. Herbert W. William for U. Border et al. Control John S. Miles. or to seek alien makes it a misdemeanor for unauthorized engage provision referred to State; in work in the this § 5(C). § 13-2928(C). give spe provisions Two See other respect investigative cific duties arrest officers. enforcement to certain aliens to and local law a warrant Section 6 to arrest without authorizes officers person probable . . . has “the officer has believe cause person any public remov committed offense makes 13-3883(A)(5). Section able from the United States.” 2(B) stop, provides detention, who conduct officers verify arrest must some make efforts circumstances *7 person’s immigration with Federal Government. status 11-1051(B) (West 2012). §See Ari for the District of
The Court United States District pro injunction preventing preliminary four zona issued a taking Supp. 980, 1008 F. 2d visions at (2010). 703 issue effect. Appeals for affirmed. The Court of the Ninth Circuit (2011). agreed States 339, 641 F. 3d 366 It that the United pre-emption had of on its established likelihood success Appeals in its conclu The of claims. Court was unanimous 5(C) §§ likely Judge pre-empted. Bea sion that 3 and were injunc uphold preliminary from the dissented decision to §§ 2(B) against granted and This certiorari tion 6. Court questions important concerning interaction of resolve immigra respect power with to the law state and federal (2011). tion alien 565 S. 1092 status. U. I
nH A un- broad, of the United States Government subject immigration power and the sta- doubted over the (1982); 10 1, tus Toll v. 458 U. S. Moreno, of aliens. See Immigration generally Rodriguez, Legomsky & see S. C. 2009). (5th Refugee Policy This and authority Law and 115-132 ed. part, consti- rests, in the National Government’s power Naturaliza- tutional to “establish an uniform Rule of
395 power sovereign tion,” Art. I, § 8, and its inherent as 4, cl. foreign to control and conduct relations nations, see supra, (citing Curtiss-Wright Toll, at United States v. Ex (1936)). Corp., port 304, U. S. power policy
The federal to determine is well Immigration policy settled. trade, can affect investment, diplomatic tourism, and relations for the entire Nation, as perceptions expectations well of aliens in this country protection g., who seek the full its laws. e. See, Brief United States Curiae; Mexican as Amicus see also Shaughnessy, Harisiades 580, v. 588-589 Perceived mistreatment aliens in the United States reciprocal lead harmful treatment American citizens Albright abroad. See et Brief for Madeleine K. al. as Amici Curiae 24-30. foreign
It is fundamental that countries concerned about safety, security status, of their nationals United States must be able confer and communicate on subject separate sovereign, this with one national not the 50 Chy Lung States. See 92 U. S. 279-280 Freeman, (C. (1876); p. see also The Federalist No. Rossiter ed. 2003) (J. Jay) (observing power that federal would be neces- sary part “bordering impulse because under the ... *8 quick apparent of sudden and a of irritation, sense interest injury” might foreign or action that undermine take would relations). “[o]ne This has Court reaffirmed that of the most important relationships of and delicate all international . . . rights protection just country’s to do has with the of the of a country.” own nationals when those nationals are in another Hines v. 312 U. S. Davidowitz, governance immigration
Federal of alien and status is ex complex. Congress specified categories tensive and has of may aliens who not be admitted to the United States. See § reentry entry 8 U. S. 1182. C. unlawful into Unlawful §§ country are 1325, 1326. here, federal offenses. Once register required aliens are to with the Federal Government §§ person. 1301- carry See proof their of status on 1304(e), §§ so is a misdemeanor. 1306. Failure to do 1306(a). deny nonciti- States law also authorizes Federal imposes range public sanc 1622; and it benefits, zens a employers 1324a. workers, tions on who hire unauthorized may specified be removed which aliens doing procedures Aliens for so. the United and the States may they the time be if inadmissible removed were entry, other or meet crimes, convicted of certain have been civil, is a law. 1227. Removal criteria set See principal the removal A feature of criminal, matter. by immigration of system is exercised the broad discretion the United ficials. See Brief for Former Commissioners Immigration Amici and Naturalization Service (hereinafter INS Commis Curiae 8-13 Brief for Former sioners). must decide matter, initial officials, Federal as an pursue re all. If whether it removal at makes sense asylum may proceedings commence, moval aliens seek allowing discretionary in other relief them remain country See formal removal. or at to leave without least (cancella §1229a(c)(4); (asylum), §§ 1158 e.g., 1229b also, see removal), (voluntary departure). tion of 1229c em- Discretion in the enforcement workers braces immediate human trying Unauthorized concerns. likely example, pose support less their families, danger smugglers a serious than who commit alien or aliens many equities may crime. The turn on of an ease individual including factors, whether alien has children born community, long or record States, the United ties distinguished discretionary military deci- service. Some policy inter- sions involve on this choices bear Nation’s country Returning national alien own relations. his tq may inappropriate has committed be deemed even where he admis- removable or offense fails to meet the criteria complicit foreign war, sion. The mired civil political persecution, enduring that create conditions *9 family upon real risk that the alien his bewill harmed dynamic return. The nature of relations with coun- other requires tries the Executive Branch to ensure that enforce- policies policy ment foreign are consistent this with Nation’s respect and these other realities. Agencies Department Security play in the of Homeland major enforcing country’s immigration role in the laws. (CBP) United States Customs and Border Protection responsible determining admissibility and of aliens country’s securing Dept, borders. See of Homeland Security, Immigration Immigration Office of Statistics, p. Enforcement Actions: In Bor- 2010, CBP’s apprehended people. der Patrol Id., almost half million Immigration (ICE), at 3. and Customs Enforcement sec- agency, investigations involving ond “conducts criminal immigration-related enforcement of at Id., statutes.” 2. operates Support ICE also the Law Enforcement Center. provides immigration LESC, as Center known, status information to federal, state, local officials around App. responsible clock. See 91. ICE are “for the officers apprehension, illegal identification, of removal aliens Immigration from the United States.” Ac- Enforcement by tions, at 2. of Hundreds thousands of aliens are removed every year. (reporting id., Federal Government See there 387,242removals, 476,405 were returns without a 2010). removal order,
B pervasiveness regulation of federal does not diminish importance immigration policy States. Arizona many consequences immigration. bears of the of unlawful deportable apprehended Hundreds of thousands of aliens are year. Dept, Security, in Arizona each Homeland Office Immigration Immigration Statis- Statistics, 2010 Yearbook (2011) (Table 35). tics 93 aliens who remain Unauthorized constitute, the State estimate, one 6% the almost population. Hispanic Cohn, Center, See J. Passel D. Pew &
398 Sharply Immigration Down S. Flows Are U. Unauthorized popu most And in the State’s Since Mid-Decade 3 responsible county, reported for a to lous are be these aliens g., disproportionate Cama e. S. See, of serious crime. share Immigration Vaughan, Immi Studies, rota & Center J. (2009) gration Assessing 16 Issue and Crime: Conflicted (Table 3) (estimating constitute that unauthorized aliens population responsible the 21.8% of and are 8.9% of the Phoenix). County, Maricopa which felonies in includes capture of Arizona’s the full extent Statistics alone do not “epi- suggest is an in the record there concerns. Accounts damage, safety property risks, serious crime, demic of problems” ille- influx of the environmental associated with gal private migration border. land near Mexican across the city major the Brief 6. Phoenix is for Petitioners yet highway signs along 30 States, United interstate stay away. public reads, miles One south warn REC- NOT WARNING—TRAVEL “DANGER—PUBLIC Smuggling Drug Area / OMMENDED / and Human Active Smuggling May Visitors Encounter Armed Criminals Speed.” App. Traveling High 170 Vehicles at Rates (punctuation altered); 5-6. Petitioners see also Brief for problems illegal posed must The State not be underestimated. legal background formal for the
These concerns are pre- analysis whether, under The follows. issue is imple- emption principles, permits Arizona federal law dispute. provisions ment the state-law J-Hb-i I—I adopts design, Federalism, central to constitutional principle Governments that both the National and State respect. sovereignty have elements of the other is bound (1991); Gregory Term See v. U.S. S. Ashcroft, (1995) (Kennedy, Limits, Inc. v. Thornton, 779, 838 U. S. sovereigns concurring). fol J., From existence two possibility lows the that laws can be in cross- conflict purposes. provides Supremacy Clause clear rule that supreme Land; “shall be the Law of and the Judges every thereby, Thing any state shall bound Contrary the Constitution or not Laws of state to the withstanding.” principle, VI, Art. 2. Con cl. Under this gress Crosby power pre-empt has the state law. See (2000); Foreign National Council, Trade 530 U. *11 (1824). Ogden, v. Gibbons 9 is no Wheat. 210-211 There 1, Congress may specified powers doubt that withdraw from by enacting express pre containing the States a statute emption provision. g., See, e. Chamber Commerce of Whiting, 592 United America v. U. 582, 563 S. (2011). give way
State law must also to federal law at least two precluded other First, circumstances. States are regulating acting Congress, in a conduct field within its that proper authority, regulated by has determined must be its governance. exclusive See Gade v. National Solid Wastes (1992) Management (Souter, Assn., 88, J., 505 115 dis U. S. senting). displace altogether The intent to state law can be regulation pervasive from a inferred framework of . . . “so supplement that left no room for the it” States to or there where is a “federal interest ... so dominant system preclude will federal be assumed enforcement subject.” laws state on the same Rice Santa Fe Eleva v. Corp., (1947); English tor 218, 331 U. v. S. 230 see General (1990). Co., Elec. 496 72, U. 79 they pre-empted
Second, state laws are when conflict with Crosby, supra, law. federal at 372. This includes cases “compliance regulations where both federal state physical impossibility,” Growers, Lime Florida & Avocado (1963), Paul, Inc. v. 373 U. S. 142-143 and those in- challenged stances where the as an obsta- state “stands accomplishment purposes cle to the the full and execution of objectives Congress,” also Hines, S., 67; at see (“What Crosby, a mat- supra, obstacle is is a sufficient at 373 examining judgment, informed to be ter identifying purpose intended its statute as a whole and effects”)- analysis, assume pre-emption courts should In super- police powers are not “the of the States” historic purpose of manifest the clear and seded “unless was Congress.” supra, Wyeth Levine, Rice, 230; see U. S. challenged provisions each must
The four of the state law principles. pre-emption under be examined these IV A S Section Section 3 of S. B. creates new misdemeanor. carry complete or an alien It forbids the “willful failure to registration of 8 United States document ... violation 1304(e) 1306(a).” 13— Rev. Stat. Ann. Code Ariz. 1509(A). penalty for conduct effect, In a state-law 3 adds proscribed by United States contends law. *12 field of intrudes the this state enforcement mechanism registration, Congress has left no room alien a field in which regulate. 31. 27, for States to Brief for United States See require alien-registration The Court discussed supra. conflict ments in In international Hines, 1940, as spread, Congress a “com added to system plete registration.” The Id., at new for alien 70. punished an alien’s federal law a It struck careful balance. carry register require willful aliens failure did not but sharing on the identification cards. There were also limits registration fingerprints. The found records Court registration plan for intended the federal system.” “single integrated all-embracing at Id., be a “complete registration 74. this for Because scheme ... foreign it allow the relations, of aliens” touched on did not complement” or to “enforce “curtail or federal law auxiliary regulations.” at Id., additional or 66-67. As a consequence, Pennsylvania ruled that Court could not alien-registration program. enforce own id., its See at 74. 59, present regulation regime of federal is not identical to statutory Hines, considered in framework but it remains
comprehensive. requirement Federal law now includes 1804(e). § carry proof registration. that aliens 8 U. S. C. aspects, stayed however, Other have the same. Aliens who country days apply remain in for more than 30 must for 1302(a) registration fingerprinted. Compare and be with (1940 452(a) ed.). required, Detailed information any change reported to be to the address has Federal 1305(a) (2006 ed.) §§1304(a), Compare Government. with (1940 ed.). 455(a), §§ provide The statute continues to penalties register. Compare willful failure to 1306(a)(2006 ed.) (1940 §457 ed.). by Congress
The framework enacted leads to the conclu here, Hines, sion itas did in that the Federal Government occupied registration. has alien See American field (2003) 396, Ins. Assn. n. 11 Garamendi, 419, v. 539 U. S. case); (characterizing Pennsyl pre-emption aas field Hines (1956) (same); vania Nelson, see also Reassessing Preemption, Dinh, Law of Geo. L. J. (2000) (same). statutory 2098-2099, 2107 The federal direc provide governing registra tives alien full set standards including noncompliance. punishment It tion, was designed supra, 72. Hines, as “‘harmonious whole.’” Congress occupies Where the field field, entire registration, regulation complementary of alien even state impermissible. congressional pre-emption Field reflects a regulation area, decision to in the even if foreclose parallel it is Kerr- to federal Silkwood v. standards. See *13 (1984). Corp., McGee 238, 464 U. 249 S. single responsible sovereign
Federal law for main- makes taining keep comprehensive system and track of unified §3 Arizona If
aliens within of the the Nation’s borders. independent every give statute were State could itself valid, prosecute registration “di violations, federal [Federal Government] n control over enforce minish[ing] the regu ‘integrated “detracting] ment” and scheme the Industry Dept. by Congress.” lation’ created Wisconsin if a State 282, Even Inc., v. Gould 475 U. S. 288-289 may instances, in federal law some make violation of a crime (like registration) do in the field of cannot so a field alien occupied by that has been federal law. See California (1949); Loney, In re 730-731, 336 U. see also Zook, 725, (1890) (States may impose their not 134 U. S. 375-376 courts). punishment perjury own for in federal pre-emption because Arizona contends that can survive adopts provision federal the law has the same aim ignores argument only its substantive not standards. This may premise pre-emption—that not field basic respect, an area Federal enter, Government unpersuasive own its reserved for also is on itself—but penalties Permitting impose for its terms. the State to own careful here the federal would conflict with offenses adopted. v. Plain Buckman framework Cf. Co. (2001)(States may Legal U. S. Comm., 347-348 tiffs’ impose punishment Food for not their own fraud Administration); Dept., Drug supra, at 288 Wisconsin (States repeat punishment impose vio their own Act). §3 to lations Labor Were National Relations bring power come into would have force, the State violating charges against a federal criminal individuals charge of law even where federal officials circumstances prosecution comprehensive would scheme determine policies. fi-ustrate federal upon scheme.
There is a further intrusion appro- prosecution is Even where federal authorities believe priate, inconsistency there is an between
403 respect penalties. with Under law, federal failure to registration carry papers pun ais misdemeanor that be by imprisonment, probation. a ished or a term of fine, See 1304(e) (2006 § 3561. ed.); S. C. 8 U. S. C. law, U. State (and by probation possible contrast, rules out as a sentence possibility pardon). also eliminates the of a See Ariz. Rev. 13-1509(D). Stat. Ann. This state framework of sanctions plan Congress put place. creates a with conflict See (“[C]onflict Dept., supra, Wisconsin at 286 is imminent separate brought whenever two are bear remedies on the (internal omitted)). activity” quotation same marks specific These conflicts between state and federal law sim- ply pre-emption. underscore the for reason field As it did respect in Hines, the that, Court now concludes subject registration, Congress preclude of alien intended to “complement[ing] enforcing] States from law, federal or auxiliary regulations.” additional S., or 66-67. pre-empted by Section is law. federal
B 5(C) Section statutory replicates require- §3, Unlike which federal §5(C) prohibition ments, enacts a no state criminal where counterpart provision exists. The it a state makes knowingly apply “an misdemeanor for unauthorized alien to public perform place work, for solicit work in a or work as employee independent contractor” Arizona. Ariz. §13-2928(C). punished Rev. Stat. Ann. Violations can by up $2,500 fine and six months. incarceration 13-707(A)(1) (West §§ 13-2928(F); 2010); See see 13- also (West 2011). 13-902(A)(5) 802(A); Supp. The United States provision upsets contends that the the balance struck (IRCA) Immigration Reform and Act of Control pre-empted plan must be as an obstacle regulation and control. regu program comprehensive federal
When there was no lating employment Court aliens, this of unauthorized pass laws on its own found had State passed example, subject. California In penalties employment who imposing of aliens on the civil *15 lawful in the United were entitled to residence “not employment lawful on if would have an adverse effect such 1(a). § The 1971 Cal. ch. resident workers.” Stats. pre-emption challenge upheld against in De Canas law was (1976). recognized that 424 De Bica, v. U. S. 351 Canas powers police possess “States broad under their regulate protect employment relationship workers to point, however, the Id., within at 356. At the State.” periph expressed no than “a Federal had more Government employment illegal [the] Id., eral entrants.” concern Whiting, 360; S., see 563 U. at 588. substantially Current federal law different regime prevailed Con when decided. De Canas was gress comprehensive framework for as a enacted IRCA “combating illegal employment aliens.” Hoffman Compounds, 147 535 NLRB, Plastic Inc. U. S. knowingly illegal employers The law makes it employ work hire, recruit, or continue to unauthorized refer, (a)(2). requires §§ 1324a(a)(1)(A), ers. It 8 U. S. also See C. every verify employer employment sta authorization (b); §§ 1324a(a)(1)(B), prospective employees. tus of See § 274a.2(b) (2012). requirements CFR are enforced These escalating through penalties series criminal and an penalties employer civil tied to the number of times (f); 1324a(e)(4), §§ provisions. violated the C. See 8 U. S. § 274a.10. CFR comprehensive impose not
This framework does (i. penalties employee e., criminal sanctions on the side work). engage aliens Under who seek or in unauthorized penalties imposed instead. With law some civil are exceptions, employment accept certain aliens who unlawful eligible adjusted are not to have their status of a to that permanent §§1255(c)(2), lawful See U. S. resident. C. (c)(8). country also Aliens removed from the 1227(a)(1) having engaged in unauthorized work. See 214.1(e). (C)(i); specifying In CFR addition these consequences, civil federal law makes a crime for unau employment through thorized workers to obtain fraudulent 1546(b). Congress means. 18 U. See S. C. clear, has made employees however, that information submit to indicate “may purposes their work status not be used” for other prosecution specified than under federal criminal statutes perjury, for fraud, and related conduct. 8 U. S. C. See (d)(2)(F)-(G). §§1324a(b)(5), legislative background of IRCA the fact underscores impose made a crimi deliberate choice penalties engage
nal seek, in, on aliens who unauthorized employment. by Congress A commission established study immigration policy and *16 con to make recommendations penalties “unnecessary cluded would be and unwork these Immigration Policy able.” U. S. and the National Interest: Report The Final and of the Com Recommendations Select Supple Immigration Refugee Policy mission on and With (1981); 92 § 4, mental Views Commissioners 65-66 see Proposals Stat. make crimi 907. unauthorized work a during long nal offense were and discussed debated the process drafting Employ of See Brief Service IRCA. ees et But International al. as Amici Curiae 9-12. Union rejected Congress Cong. g., See, e. 119 Rec. 14184 them. (1973) (statement Dennis). Rep. In of the IRCA’s end, making judgment crim framework a reflects considered engaged inals out of aliens in unauthorized work—aliens who already possibility employer exploitation the face of because of their with fed removable status—would be inconsistent policy objectives. g., Hearings eral Sub See, and e. before Judiciary, committee 1 of No. the House Committee on the (1972) (statement Cong., pt. pp. 92d 1st of Sess., 3, 919-920 406
Rep. sponsor in the IRCA House the eventual of Rodino, Representatives). of express pre-emption provision, in- which most
IRCA’s employers imposing penalties of from on stances bars States penal- aliens, unauthorized is silent about whether additional against employees imposed themselves. See ties be the §1324a(h)(2); Whiting, supra, But at 587-588. U.S.C. “express provisio[n] pre-emption does existence of ordinary principles” working pre-emption bar of conflict “ ” impose ‘special it more dif- that would make burden’ pre-emption falling outside ficult to establish the of laws 861, Honda Motor U. S. Co., clause. Geier v. American (2000); Mercury Sprietsma 537 U. S. Marine, 869-872 v. see (2002). 51, 65 pre-emption ordinary principles well-
The of include the pre-empted proposition it where settled a state law accomplishment execution “stands as an to the obstacle Congress.” purposes objectives Hines, full 5(C) at 67. B. Arizona would S., Under of S. by Congress with interfere with the careful balance struck Although employment respect to unauthorized of aliens. 5(C) attempts goals achieve one of same as federal employment—it law—the involves deterrence unlawful recog The conflict method enforcement. Court “[cjonflict disruptive technique fully nized that can be policy.” system Congress overt erected as conflict in Employees Lockridge, Coach U. S. Motor text, struc correct instruction to draw history would ture, is that decided IRCA impose inappropriate penalties aliens who criminal *17 engage employment. seek It follows in unauthorized regulatory contrary an state law to the is obstacle to the system Congress Dept. Con chose. See Puerto Rico Corp., U. S. sumer v. ISLA Petroleum Affairs (1988)(“Where intentionally comprehensive federal scheme portion regulated then controls, leaves field without pre-emptive inference can be drawn—not from federal action”). joined inaction alone, but from inaction Sec 5(C) by pre-empted tion is federal law.
C Section provides Section 6 of B.S. that a officer, “with- may person out a probable warrant, arrest a if the officer has [the person] any public cause to believe . . . has committed [him] offense that makes removable 13-3883(A)(5). the United States.” § Ariz. Rev. Stat. Ann. The United States argues that arrests authorized this statute would be an system Congress obstacle to the removal created. general
As a rule, it is not a crime for a removable alien present to remain in the Lopez- United States. See INS v. Mendoza, 468 police stop U. S. 1032, 1038 If the nothing possible someone based removability, more than predicate the usual arrest absent. When an alien suspected being removable, a federal official issues an administrative Appear.” document called a “Notice to See 239.1(a). 1229(a); 8 U. S. C. 8 CFR The form does au gives thorize an arrest. Instead, it the alien information proceedings, including about the the time and date of the 1229(a)(1). hearing. removal See 8 U. S. C. If an alien appear, fails to an in absentia order direct removal. §1229a(b)(5)(A). statutory
The federal appro- structure instructs when it is priate during process. arrest an alien the removal For example, Attorney General can exercise discretion to issue a “pending warrant for an alien’s arrest and detention a decision on whether the alien is to be removed from the §1226(a); United States.” see Memorandum from Mor- John ton, Director, ICE, to All Field Office et Directors Exer- al., cising Prosecutorial Discretion With the Im- Consistent Civil migration Agency Enforcement Priorities of the for the Apprehension, (June Detention, and Removal of Aliens *18 Memorandum)
2011) (hereinafter (describing fac- 2011 ICE decisions). informing alien if an And and related tors this Attorney hearing, General a is ordered removed after 241.2(a)(1). § in- In both will a See 8 issue warrant. CFR by officers who stances, the warrants are executed immigration training in have received the enforcement of 287.5(e)(3). §§241.2(b), If no federal warrant has law. See authority. See more limited issued, been those officers have 1357(a). being § They may an “in arrest alien for 8 U. S. C. any [immigration] law or the United States in violation of likely only regulation,” example, “is the alien but where 1357(a)(2). § escape obtained.” before a warrant can be greater attempts provide officers even state Section possible authority removabil- on the basis arrest aliens immigration ity given than has to trained an alien who is law, officers believe officers. Under state “public have the some offense” would removable reason of regardless power arrest that basis conduct an likely alien whether federal warrant has issued escape. without This could be exercised input about whether arrest from the Federal Government particular allow the This would is warranted in a case. policy. immigration result State to achieve its own (for unnecessary in- could be harassment of some aliens assisting college student, or someone stance, veteran, investigation) determine officials criminal who federal be should not removed. system Congress Federal law
This is created. specifies officers limited in which state circumstances principal perform A the functions of an officer. example Attorney granted that au- when General thority specific agreement awith state in a officers formal 1103(a)(10) § government. 1357(g)(1); or local see also See (authority may “imminent extended in the event of an arriving the United mass influx of off the coast of aliens States”); (authority specific to arrest in 1252c circumstance Government); 1324(c) after consultation with the Federal *19 (authority bringing harboring to arrest for in and certain aliens). agreements Officers covered these are sub ject Attorney supervision. to the General’s direction and §1357(g)(3). significant complexities There are involved in enforcing immigration including law, the determina person tion whether a is removable. See Padilla v. Ken (2010) tucky, concurring 559 356, U. S. 379-380 J., (Alito, judgment). agreements a result, As with reached Attorney General must contain written certification that adequate training carry officers have out received the du 11357(g)(2); ties of an See cf. 8 officer. CFR 287.5(c)(arrest §§ (de power contingent training), 287.1(g) fining training).
By authorizing state officers to decide whether an alien being prin should removable, for 6 detained violates ciple process that the removal is entrusted to the discretion g., of the See, Federal e. Reno Government. v. American- Arab Comm., 471, Anti-Discrimination 525 U. S. 483-484 (1999); see also Brief Former INS Commissioners 8-13. removability requires A decision on a determination whether appropriate foreign living allow continue national to in the United on for States. Decisions this nature touch eign relations and must be made with one voice. See Jama Immigration and Customs U. S. 543 Enforcement, (2005) (“Removal including 348 decisions, selection may [the implicate Nation’s] removed re destination, alien’s foreign powers require lations with consideration of (internal changing political and economic circumstances” quotation omitted)); marks Press, see also Galvan v. (1954) (“Policies entry pertaining U. S. 522, to the right aliens and their to remain here are . . entrusted . exclusively ”); Raich, . . . Truax v. (“The (1915) immigration—to
33, 42 to control solely in the Federal vested or aliens—is admit Government”). exclude permit statute notes a federal Arizona In defense of Attorney “cooperate General ting state officers removal of apprehension, detention, or identification, in the C. lawfully present U. S. in the United States.” aliens not ambiguity to what 1357(g)(10)(B). be some There no coher cooperation law; but the federal under constitutes incorporate unilat understanding term would ent being alien to arrest an eral decision state officers approval, request, other instruction absent removable Department of Home from the Federal Government. coop examples Security gives constitute of what would land where These include situations under federal law. eration participate joint officers, force with federal in a task *20 States executing operational support or allow provide warrant, a in gain held immigration to detainees access officials Security, Dept,3 Guid in of Homeland state facilities. See Immi in Assistance on State and Local Governments’ ance (2011),on gration 13-14 Related Matters Enforcement and http://www.dhs.gov/files/resources/immigration.shtm line at (all and available 21, 2012, Internet as visited June materials file). can also assist in State officials Clerk Court’s case requests by in responding the Federal Government from their be released formation about when an alien will 1357(d). custody. action unilateral state See But the §6 beyond by goes measures, these authorized far detain defeating any cooperation. for real need system put place officers in state which in a possible based aliens not make warrantless arrests By removability except specific, limited circumstances. engage in authorizing local officers state and nonetheless general creates matter, as a these enforcement activities Congress. objectives purposes full an obstacle to the by pre-empted fed- 6 is Section Hines, S., See at 67. eral law.
D 2(B) Section 2(B) requires Section of B. 1070 make state officers to attempt “reasonable ... to' the determine sta- stop, person they tus” of arrest other detain, or on some legitimate per- suspicion if basis “reasonable exists unlawfully present son is an alien and is United 11-1051(B). States.” Ariz. Rev. Ann. Stat. The law also provides “[a]ny person who is arrested shall have person’s immigration person is status determined before the accepted way perform Ibid. released.” The status these checks is to contact which of im- ICE, maintains a database migration records. provision.
Three First, limits are built into the presumed unlawfully present detainee is not to an alien provides in the United States if he or she valid Arizona license driver’s identification. officers Second, similar “may except origin not consider race, color or national . . . permitted [and] extent States Arizona United Constitution^].” provision Third, be “im- Ibid. must plemented regulat- in a manner with federal consistent laws ing immigration, rights protecting persons the civil of all respecting privileges and immunities United §11-1051(L). citizens.”
The that, United States and its amici even contend requirements pose these limits, State’s verification Congress put place. obstacle to the first framework *21 mandatory concern is the status checks. The nature possibility prolonged second is the detention while the being performed. checks are
Consultation between an im- federal and state officials is portant immigration system. Congress feature has agreement special training made clear that or no formal place needs in to to be for state officers “communicate with immigration regarding [Federal Government] status par- knowledge any including reporting that a individual, lawfully present in the States.” ticular alien not United § obligated Congress 1357(g)(10)(A). ICE has S. C. And any respond request for verifi- made state officials immigration person’s citizenship status. See cation of a or 1226(d)(1)(A) system 1373(c); (requiring for a de- see also termining aggravated felon- for whether individuals arrested aliens). Support Center ies are ICE’s Law Enforcement days operates day, days week, “24 hours seven “immigration among things, year” provides, sta- other identity local, tus, assistance information and real-time agencies.” ICE, Fact state and federal enforcement 2012), (May Support Law Center Sheet: Enforcement http://www.iee.gov/news/library/factsheets/lesc.htm. online responded requests for infor- LESC to more than 1 million App. in mation alone. 93. argues making verification status United States
mandatory immigration scheme. interferes the federal §2(B) It officers to con- is true does not allow state priorities deciding whether to sider federal enforcement they Brief ICE See contact someone have detained. about words, the officers must United States 47-50. In other unlikely inquiry an make even cases where it seems Attorney This the alien removed. General would have elderly might example, is an case, be the when alien significant longstanding commu- veteran with to the ties nity. (mentioning these See 2011 ICE 4-5 Memorandum relevant). factors suggest inappropriate nothing done it is In- however. situations, with ICE in these communicate encouraged sharing it has of information about
deed,
possible
1357(g)
C.
8 U. S.
violations. See
(10)(A).
public
regulating
A
benefits
federal statute
provided
qualified
“no
State
aliens in
instructs that
fact
government entity
way
prohibited,
or
local
*22
sending
receiving
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[ICE]
to
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tion
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lawful or
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alien
United
1644. The federal scheme
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Whiting,
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routine
Cf.
matter.
is unlawful. The state courts conclude person suspected he which to be of crime for continues some may be reasonable officers, be detained state it would not Reply stop inquiry. immigration prolong See to the for the (“[Section 2(B)] require the verifica 12, Brief n. 4 does not completed during stop not if that is tion or detention be practicable”); S. Mena, or cf. v. 544 U. reasonable Muehler (2005)(finding violation where 93, 101 Fourth Amendment no stop). questioning immigration prolong a about status did pending person example, might a held To take another be driving charge on a of of alcohol. release under influence (unlike goes beyond stop, As this a mere the arrestee appear categorical jaywalker) subject re- to be would 2(B) “[a]ny quirement person in second sentence of immigration person’s status is shall who arrested have the [he] read determined before is released.” State courts every time this as an instruction to initiate a status check cases, of rather arrested, someone is or some those in subset person a is com- than as until the check command hold plete law is read no matter the Even if the circumstances. person complete in is a check while the an instruction custody, stage and on this moreover, it not clear at this is pro- process result record the verification would longed detention. §2(B) requires only interpreted, is if
However the law during status the course state officers to conduct a check detainee has been or after a authorized, lawful detention likely provision pre-emption—at released, the would survive showing consequences has least absent some it other objectives. There that are law and its adverse federal suspicion no reasonable need this case address whether illegal entry a le crime would be or another gitimate prolonging too detention, basis a whether this g., pre-empted by e. would law. United See, be (1948) (authority Di state Re, States v. 332 U. officers arrests for absent is, make federal crimes law); statutory Peo instruction, matter Gonzales 1983) (CA9 (concluding F. 2d ria, 475-476 pro Arizona officers have to enforce the criminal immigration law), visions of federal overruled on other grounds Hodgers-Durgin Vina, v. de la 3d 1037 F. (CA9 1999). timing of
The nature and this case caution in evalu- counsel §2(B). ating validity The Federal Government brought against sovereign provi- challenge suit State to gone sion even before the law has into effect. There uncertainty basic about what the law means and how will stage, At enforced. this without the a defini- benefit of *24 interpretation inap- tive the it courts, state would be §2(B) way propriate to assume will in be construed Washington, creates a with Fox conflict federal law. Cf. (“So (1915) may fairly 273, 236 U. S. far as statutes be way construed such a as to avoid constitutional doubtful questions they pre- should so it to construed; and be by way state sumed that laws will be construed the (citation omitted)). state courts” As a the United result, prevail challenge. States cannot in its current Huron See (1960)(“To Portland Detroit, Cement Co.v. U. S. ignore teaching hold otherwise would be to this the of enjoin seeking Court’s decisions out which conflicts between exists”). regulation clearly and where none opinion pre-emption This does consti- not foreclose other and challenges applied interpreted tutional the law as goes after it into effect.
V Immigration shapes policy destiny the of the Nation. On May distinguished 24, 2012, at one of this mu- Nation’s most history, immigrants seums a dozen stood before flag inspired Key tattered write Francis Scott they the National There Anthem. the oath be- took come Smithsonian, Release, American citizens. The News Ceremony Citizenship New Smithsonian Welcomes a Dozen (May 2012), http://newsdesk.si.edu/ Americans online at together bring releases. These naturalization ceremonies origins com- share a who now men and of different women destiny. They fidel- oath renounce mon common swear a ity foreign princes, and to bear Constitution, defend required country 8 CFR law. arms on when behalf 837.1(a). part history made States is The the United lasting who of those contributions stories, talents, of the here. crossed and deserts to come oceans regu- significant power to The Government has National power responsibility, immigration. comes late With depends power immigration national over sound exercise meeting responsibility to on its laws its base Nation’s thoughtful, political by searching, rational will informed may frustra- civic Arizona have understandable discourse. by illegal while problems tions caused policies process pursue continues, but the State that undermine federal law.
[*] [*] [*] 5(C), and 6 of that §§3, United States has established improper, pre-empted. however, to B. 1070 It are was §2(B) enjoin opportunity to had an before state courts showing that enforcement construe and without some provision immigration law in fact conflicts with federal objectives. and its *25 judgment Appeals Cir-
The for the Ninth of the Court of part part. is re- cuit is The case affirmed in and reversed in opinion. proceedings manded with this further consistent isIt so ordered. Kagan or deci- Justice took no in the consideration part sion of this case. in part.
Justice Scalia, dissenting concurring part sovereign is an United States indivisible “Union Cherry Creek States.” v. La Plata River & Hinderlider approv- Today’s opinion, Ditch Co., 304 U. S. 104 ing virtually injunction against all Ninth of the Circuit’s en- challenged provisions forcement of the four law, Arizona’s deprives defining States of what most would consider the sovereignty: power characteristic of exclude from sovereign’s territory people right who have no to be there. passed by Neither itself nor even Constitution Congress supports I this result. dissent.
I—1 sovereign, power As a Arizona has the inherent to exclude persons territory, subject only from its to those limitations expressed constitutionally imposed by in the Constitution or Congress. power long recognized That to exclude has been sovereignty. as inherent in Emer de Vattel’s seminal 1758 treatise on the Law Nations stated: sovereign may territory
“The forbid entrance of his general, foreigners particular cases, either to or in persons, particular purposes, to certain or for certain according may advantageous as he think it to the state. nothing There is in all this, does not flow from the rights sovereignty: every obliged domain one is pay respect prohibition; to the and whoever dares penalty it, violate incurs the decreed to render it effec p. of Nations, VII, tual.” The Law bk. II, § 94, ch. (B. 2008). Kapossy R. Whatmore eds. & Upon See Phillimore, also R. Commentaries International (“It pt. Law, Ill, ch. *233 maxim X, is a received of Interna- may prohibit Law, tional that the Government of a State strangers country”).1 entrance into the 18th-, Many 17th-, 19th-century of the maintained commentators Pufendorf, foreigners only should reason. good exclude “per for example, generally grant expected maintained that States are strangers manent from their settlement who have been driven former home,” though that, prospect of mass acknowledging when faced with the privilege immigration, “every what decide after its own custom Na- should of Nature and granted such situation.” Of Law *26 adoption the constitu no that “before the of There is doubt authority to State had the tion of United States” each the per being by “prevent [itself] influx of from burdened Mayor 132-133 Miln, 102, York 11 Pet. sons.” New (1837). strip the did not the States of And Constitution provi authority. contrary, To two of the the Constitution’s prevent designed “the sions enable were through Letter other intrusion of obnoxious aliens States.” (Aug. 27,1782), Randolph to Edmund from James Madison (G. 1900); Writings accord, ed. of James Madison Hunt (J. 1961) (C. pp. ed. 42, The Federalist 269-271 Rossiter No. Madison). provided that The had Articles Confederation vaga paupers, these States, “the inhabitants of each of free justice excepted, fugitives entitled shall be bonds and privileges all of free citizens the several and immunities alien that an unwelcome Art. This meant States.” IV. simply rights all a citizen of one State could obtain remedy becoming this, first another. To an inhabitant of pro Privileges Immunities Clause Constitution’s “[t]he all entitled vided that of each State shall be Citizens Privileges and Citizens in the several States.” Immunities of added). (emphasis had Art. cl. if one State IV, §2, But might particularly citizenship as standards, lax still serve entry gateway into other States. of “obnoxious aliens” “by general govern problem authorizing This was solved throughout ment to uniform rule naturalization establish a supra, 271; United States.” Federalist No. naturalization I, § 8, 4. In words, see Art. cl. other power power given Congress abrogate not to States’ was they it. want, exclude those did not but to vindicate 1934). (C. tions, Ill, III, § 10, eds. p. bk. ch. & W. Oldfather Oldfather Aliens, Indians, generally Cleveland, Sovereignty: See Powers Inherent in Plenary Territories, Over Century Origins and the Power Nineteenth Affairs, authority to Foreign L. 81 Texas Rev. 83-87 But universally accepted sovereignty, exclude inherent whatever was might prudential limitations there on its exercise. *27 provisions
Two other of Constitution an acknowl the are edgment sovereign protecting of the States’ interest in their provides “[n]o borders. I shall, Article State without lay Congress, any Imposts Consent of or Duties on Imports except absolutely Exports, be neces or what sary executing inspection (empha it’s Laws.” cl. 2 10, added). everyone sis This assumed what assumed: that the territory dangerous States or un could exclude from their goods. portion pro wholesome A section later of same Congress, “[n]o vides that State the Consent of shall, without engage actually War, invaded, ... unless or in such immi Danger delay.” (emphasis nent as will not admit Cl. of added). (in way sovereignty This limits the States’ here) pro power relevant but intact their inherent leaves territory. tect their
Notwithstanding myth “[t]he of im an era of unrestricted migration” years Republic, first of the the States restricting enacted numerous laws of cer including tain aliens, classes of indi criminals, convicted (in gents, persons contagious diseases, and Southern States) Century freed of Ameri Neuman, blacks. Lost (1776-1875), Immigration can Law 1833, 93 Colum. L. Rev. only provided 1835, 1841-1880 State laws not for the penalties immigrants imposed removal of unwanted but also immig unlawfully present aliens and those who aided their Id., at 1883. ration.2 controversy surrounding
In fact, the the Alien Sedi tion Acts involved a debate over Consti whether, under tution, the States had exclusive to enact such immigration laws. Criticism the Act has become of Sedition prominent jurisprudence, feature of our First Amendment g., see, e. New York Sullivan, Times Co.v. 376 U. S. E. g., (“If (1849) 198, § 39 Code, Va. Tit. master of a vessel ch. or person, other knowingly, bring state, any place import or into this States, any out United of the person convicted of ... he shall be crime dollars”).
confined in jail months, three and be fined one hundred (1964), contro Acts3 also aroused
273-276 the Alien but one versy at the time: Representa- “Be and House it enacted the Senate Congress as- tives America in the United States of the President That it shall lawful for
sembled, during of this the continuance United time judge dangerous all he act, to order such aliens as shall safety shall peace States, to the United *28 grounds suspect in have are concerned reasonable against govern- the treasonable or secret machinations depart territory ment of the United thereof, to out of the concerning 570-571. Aliens, Act 1 Stat. States ...An Kentucky Virginia in denuncia- Resolutions, and written power un- tion of to exclude Acts, insisted that the these solely Ken- wanted tucky Jefferson’s rested in the States. aliens the are under insisted “that alien Mends Resolutions jurisdiction protection the state wherein of of the laws delegated they power [and] are that no has been over them prohibited states, to the nor individual States, United to the Kentucky power Resolu- distinct from their over citizens.” Languages reprinted Power: tions of of 1798, Powell, J. History Early A of Sourcebook American Constitutional Virginia Madison’s likewise contended Resolutions power purported give that the “a Act the President Alien Virginia delegated government.” nowhere to the federal deleted). (emphasis id., Nota- Resolutions of at 134 bly, proponents Act moreover, the Federalist of the defended primarily ground “[t]he the it on the removal of aliens justi- preliminary hostility” usual of and could therefore be powers. fied in exercise of the war Federal Government’s Virginia, Reply at 136. id., Massachusetts Resolutions in Mayor In New York v. this Court considered Miln, of any ship required New York the of statute that commander Acts, aliens. only enemy There were two Alien one of which dealt Enemies, An Act respecting Alien 577. ch. Stat.
arriving in
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. with
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discussing
to the said
II One wouldconclude that after the adoption Constitution there was some doubt about power immigration, Federal Government to control power but no doubt about to do Since so. founding (though immediately), era doubt about the *29 power pri disappeared. Indeed, Federal Government’s has mary responsibility immigration policy for has shifted Congress the to the Federal exercised Government. power “[t]o its Naturalization,” an uniform Rule establish of early very Art. cl. see Am I, §8, 4, on, Act to establish an 3,1 uniform of ch. 103. But with Naturalization, Rule Stat. fleeting Congress exception of Alien did not Act, any legislation immigration regulating enact for the better part century. pro Congress passed of a In “An 1862, Act to by hibit the ‘Coolie Trade’ American Citizens in American prohibited “procuring [Chinese nationals]... Vessels,” which disposed any to be of sold, or or term of, transferred, years any apprentices, or for whatever, as servants or time or 27, to be held 340. to service or labor.” Ch. Stat. Congress Then, in to 1875, that Act bar admission amended Japanese, immigrants had Chinese, Asian who and other agreement for a term of service “entered a contract or into purposes.” and immoral States, within for lewd the United immigration, supplementary to the acts An act relation Congress 1882, And in enacted 141, ch. 18 Stat. 477. regulate general immigration An act to first statute. See hardly Immigration, men- 214. it bears course, Stat. Of immigration extensive. tion federal law is now accept power—not be- I a valid of federal that as exercise (it necessary no con- cause of the Naturalization Clause has citizenship) attribute but it an inherent nection to because sovereignty than for no less for the of United States “ ‘accepted of has maxim said, this it is States. As Court an every power, sovereign nation has law, international sovereignty, self-preservation, as inherent and essential foreigners to forbid entrance within its dominions.’” (1893) Fong Ting 698, 705 States, v. United 149 U. S. Yue (1892)). (quoting States, Ekiu United 142 U. S. why control of immi- That is there no need to forth was set Congress, gration powers al- as one of the enumerated (as though acknowledgment power as of the of that well subject abridgment) power, was States’ similar Migration “[t]he provided contained in Art. which I, Importation States now or as of the such Persons prohibited existing proper admit, think not be shall shall prior eight hun- Year thousand to the one eight dred and . . . .” light predominance re-
In sight easy of the times, strictions in modern it is to lose immigration—and regulating role States' traditional accept sovereign prerogative I overlook to do so. their given regulation by the Constitution is excluded (1) prohibited by law, valid federal when it been (2) example, regulation—when, conflicts with federal *30 regulation exclude, or it admits would those whom federal regulation excludes whom federal would admit. those (1) Possibility not be There is no need considered here: prohibiting sovereign power federal to ex- law States’ law). (assuming clude The to enact such a immigration existence of federal action in the area— mere arising pre-emption and the action, so-called field from that upon heavily opinion ante, which the relies, Court’s so at regarded prohibition. 401-403—cannot be are such a We talking prohibiting not here about States regulating bubble-gum advertising, from or even the construc- plants. talking tion of nuclear We are about a federal law going power sovereignty: to the core of state to exclude. sovereign Like elimination of the States’ inherent other power, immunity suit, elimination of States’ sover- eign power requires “Congress unequivo- to exclude ... cally expres[s] abrogate,” its intent to Fla. Seminole Tribe of (1996) (internal quotation v. omitted). 517 U. Florida, marks Implicit pre-emption” “field will not do. power illegal
Nor can federal over be deemed opinion solicitously exclusive because of what the Court’s “foreign safety, countries^] concern[s] calls the status, about security ante, their nationals in the United States,” gives 395. all our shores Constitution those protections Rights—but just rights the Bill as those are expanded foreign nationals because of their countries’ (some example, recently views countries, for have discovered barbaric), penalty the death neither are the fundamen- sovereign powers abridged tal of the to accommodate foreign relations, Even in countries’ views. its international fact Federal must inconvenient Government live with independent States, it is a Union of who their own have powers. sovereign found This not the first time it has foreign policy. that a nuisance and a bother conduct years ago, example, importuned Four the Government thoroughly judicial us to interfere with constitutional state procedures foreign in the criminal trial of nationals because *31 opinion of the community, and even an international disapproved Med them. See Justice,
International Court
rejected that re
We
What this case comes down immigration law—whether zona law conflicts with federal or admits admit, would those whom federal law excludes purport It exclude. does those whom federal law would possess only applies a It aliens who neither to do so. present privilege been re- under law nor have be pursuant inherent au- moved thority. to the Federal Government’s provisions proceed challenged
I consider detail.
§2(B) any stop, made a “For lawful detention arrest official the enforcement enforcement ... county, city or this other law or town or ordinance of person suspicion state where reasonable exists that present unlawfully United in the is alien and is practi- attempt when States, made, reasonable shall person, immigration cable, to determine the status of except obstruct an if the hinder or determination investigation. Any person have shall who arrested person’s immigration before status determined §2(B), person amended, released....” S. B. (West 2012). 11-1051(B) Ariz. Rev. Ann. Stat. “even Section The Government before has conceded enacted, was local had state-law state and officers Security] inquire Department [the of DHS of Homeland suspect’s cooperate about unlawful status and otherwise with federal officers.” Brief for United States (citing 82); App. see also Brief for United 48-49. my That concession, view, obviates the need further inquiry. conflict-pre-emption The Government’s claim calls *32 on us “to determine under whether, the circumstances of particular State’s] [the this case, law stands obstacle as an accomplishment purposes to the and execution of the full objectives Congress.” 52, Hines Davidowitz, 312 S. (1941) added). (emphasis impossible It is make such a to finding concerning without a factual record the manner implementing provisions—something which Arizona is these preenforcement challenge pretermit- the Government’s has might operate [a law] unconstitutionally ted. “The fact that under some set of conceivable circumstances is to insufficient wholly recognized invalid, render it we since have not an ‘overbreadth’ doctrine the limited outside context First 739, Amendment.” United States v. U. S. Salerno, 481 (1987). 2(B) § merely And on its tells face, state officials they they by something that were, are authorized do already concession, Government’s to do. authorized properly rejects The Court therefore the Government’s challenge, recognizing stage, “[a]t that, this without the ben interpretation efit of a definitive courts, from the state 2(B) § inappropriate would be to assume will be construed way Ante, that creates a conflict with law.” at 415. federal reaching goes Before that conclusion, however, the Court great length assuage fears will be re that “state officers quired delay no reason release of detainees for some verify immigration Ante, than other their status.” 413. any investigatory including course, Of one under detention, §2(B), may seizur[e],” . U. S. become an “unreasonable . . long. Const., Caballes, if 4, Amdt. it lasts too See Illinois v. nothing 543 U. S. to do with But that has 2(B) pre case, this which the Government claims by immigration empted anyone’s Fourth law, not that rights I know no violated. And Amendment have been why protracted violate the reason detention does Fourth conflict Amendment would contradict law. §6 per- may peace warrant, arrest officer, “A without a probable . .. son if the officer has cause believe any public person [t]he of- to be arrested committed person United fense makes the removable from §6(A)(5), Ariz. Stat. Ann. B. Rev. States.” S. (West 2011). 13-3883(A)(5) Supp. statutory expands provision list B. This of S. police make an offenses for which an Arizona officer officer has arrest without a warrant. See 13-3883. If probable “removable” cause that an individual is to believe required public *33 not offense, reason of a then a warrant is primary contention is to make an The Government’s arrest. by immigration pre-empted because it that 6 is federal law regard to make fed- allows state arrests “without officials priorities.” Court’s eral Brief United States 53. Congress opinion placed on on limits that focuses federal possi- and officials’ to arrest removable aliens [Arizo- bility will that state officials make arrests “to achieve input policy” any immigration na’s] from own and “without Ante, the Federal 408. Government.” preenforcement is no reason course on record there Of this immigra- ignore to assume that Arizona officials will federal (unless policy questionable policy of not want- tion it be identify ing illegal aliens offenses who have committed removable). points out, that make them Arizona As “cooperate expressly may provides that state officers apprehen- Attorney identification, with the in the General lawfully present in sion, or removal of aliens not detention, “coopera- §1357(g)(10)(B); the United 8 U. S. C. States,” ap- requires tion]” prior nor neither identical efforts proval. It is with the Arizona consistent statute, system “cooperative]” that has created, for state officials a to arrest removable contact federal im- alien, migration authorities, and their on follow lead what to do logic identifying say next. And is assault an on a holding alien removable him for federal determination principle whether he should be removed “violates the process the removal is entrusted to the Fed- discretion of the eral Government,” ante, at 409. The does State’s detention represent process commencement of the removal unless the Federal Government it so. makes important point..
But that is not the most im- The most portant point that, discussed, as we have Arizona is enti- immigration tled policy”—including to have “its own a more rigorous policy—solong enforcement as that does not conflict says, though point with federal law. The Court utterly dispositive, “it is not crime for a removable present alien to remain States,” ante, the United at 407. It is crime, not a federal to be sure. But there is no reason Arizona cannot it a make state crime for a alien removable (or matter) any illegal present in for that to remain alien, Arizona. quotes 1226(a), “[o]n provides
The Court which that, Attorney warrant issued General, alien pending arrested and detained decision whether the alien is to be removed the United States.” Section 1357(a)(2) provides also official that a federal power “shall have without warrant... to arrest alien the United if he has alien States, reason believe any [federal so arrested is in United States violation *34 immigration] regulation likely escape law or is before statutory a warrant can be obtained for his But arrest.” upon enforcing limitations the actions of federal in officers power protect the United States’ not on its borders do apply enforcing their face to the actions state officers power protect the State’s more its borders. There is no provisions implying reason to read these offi- that state subject is to read than there are to similar limitations cials only implying re- arrest them as federal officials any implication would movable aliens. event neither And sover- constitute the of the States’ sort of clear elimination eign power that our demand. cases “unnecessary
The harassment Court concerns about raises should . of some aliens . . who federal officials determine we have no license Ante, not be at 408. But removed.” any support in that Arizona of- assume, record, without §6 to harass ficials under would use their arrest anyone. officials that federal And it makes no difference aliens] unlawfully present might [that “determine some They may not well determine removed,” should not ibid. right no who have to remove from the United States aliens given have been to be but aliens here; unless and until these right to arrest them remain, Arizona is entitled bring is all attention, which at least to federal officials’ them (In §6 go my necessarily can the State view, entails. entry punish further than unlawful this, and them their Arizona.) presence might complains not The state officials Government they particu- priorities.” might not, heed “federal Indeed larly priorities if or deliberate those willful blindness include presence in Arizona. inattention to the of removable aliens passed complaint—the The this law was State’s whole reason of Arizona be- and this case citizens has arisen—is priorities sover- lieve federal too The are lax. State eign power rigorously if protect more its borders any prohibition. Execu- wishes, absent valid federal policy consti- tive’s choice of lax enforcement does prohibition. tute such
§3 person law, “In addition to violation guilty complete carry alien willful failure to registration person of 8 if in violation document
5$ 1306(a).” 1304(e) §3(A), [U.S.C.] or B. S. as 13-1509(A). Ariz. amended, Rev. Stat. Ann. beyond question
It is
that a State
make
of
violation
federal
of
law violation
as
law well.
have held
We
protected
that to be so even when the interest
is a distinc-
tively
protection
dignity
federal
such as
interest,
of the
flag,
(1907),
the national
see Halter v. Nebraska, 205 U. 34S.
protection
ability
of the Federal Government’s
to recruit
(1920).
soldiers,
“[T]he
Minnesota,
Gilbert v.
its own citizens from (internal purposes.” quotation ment such at Id., omitted). marks Much more is that so as when, here, protecting State is integrity its own of its interest, bor- explicitly regard illegal ders. And we have said that immigration: “Despite the exclusive federal control of this borders, Nation’s we cannot conclude that the States are any power persons entering without deter the influx against law, United States federal and whose numbers might impact have a discernible on traditional state con- Plyler v. Doe, 202, 228, cerns.” n. 23 opinion upon Court’s relies Hines Davidowitz, Ante, U. S. 52. at 401. But that case not, did as the Court pre-emption” implicitly believes, establish a “field elimi- sovereign power nates the States’ to exclude those whom permit- It excludes. held that the are not auxiliary” registration ted to establish “additional or re- quirements S., for aliens. 312 U. at 66-67. But 3 does auxiliary registration requirements. establish additional or merely very It makes a violation of same fail- state law the register carry registration ure to failure evidence prevent that are of federal violations law. does not Hines system relying registration the State from on the “an available aid in enforcement of a number statutes validity applicable of the state to aliens whose constitutional (Stone, questioned.” J., dissent- Id., 75-76 has not been forbidding illegal ing). is Arizona’s law One such statute *36 unemployment Ann. Ariz. Rev. Stat. benefits, aliens to collect 23-781(B) (West 2012). laws that and other To enforce validly in status, has, Justice that turn on alien Arizona knowing in number and where- Stone’s “the words, an interest having “a of the state” and in means abouts aliens within punish 75. it can the identification,” at And S., their provisions comply law federal the aliens’ failure knowledge possible. that and identification make that g., uniquely in fraud In some federal concern—e. areas (Buckman process Co. v. a federal administrative Plaintiffs’ (2001)) Legal perjury in violation of Comm., U. S. (In (1890))— federally Loney, required 134U. S. 372 oath re legitimate in interest this a State has no Court held that registra- enforcing the alien But federal scheme. certainly uniquely system federal interest. tion is not of rely private on the federal entities, and individuals States, E-Verify program) (including registration system aon the protecting regular legitimate interest basis. Arizona’s system things) (among unemployment-benefits anis other its making entirely adequate of federal for the violation basis requirements registration carry state law a violation of as well. points ante, 402-403, that out, however,
The Court pre- respects punishments the law exceeds the some state pardon, probation and It rules out scribed federal law: it law. The answer which are available under federal Illegal immigrants 3 vio- no who violate makes difference. Supremacy say thing that the late Arizona law. It is one excluding prevents whom law those fed- Clause Arizona say something quite that a else eral admits. It is severely punished more of Arizona law cannot be violation here) (as Especially where than a violation of federal law. sovereign defending interests, its own there is State is illegal drugs, precedent The sale of no for such a limitation. example, ordinarily state law as well as violates penalties law, and no one thinks cannot exceed state pre- As discussed, federal. I have “field moreover, emption” prohibition cannot establish additional penalties immigration. in the area §3
Finally, suggests poses Government also obstacle to the law, administration of federal see Brief for United but 31-33, “there no conflict in possibility [if] no terms, and of such conflict, state statute makes federal law own,” its Zook, 336 U. S. California 725, 735
It no holds fear for me, Court, does §3 “[w]ere to come into force, State would have power bring against charges criminal individuals for vio- lating a federal law even circumstances where federal of- *37 charge comprehensive ficials in of the scheme that determine prosecution policies.” would frustrate federal 402. Ante, at entirely appropriate That seems me uses when State (as must) law as the criterion for the exercise power, implementation of policies its own and the itsof own excluding belong of those do I who not there. What do support what fear—and Arizona and the States that it fear— policies” “federal of nonenforcement will leave helpless illegal immigra- States before those evil effects opinion dutifully prologue tion that the Court’s in its recites 397-398) {ante, disposition. at but leaves unremedied in its
§5(C) person unlawfully present “It is for a unlawful who is in the United States and is an alien who unauthorized knowingly public apply work, solicit work in place perform employee independent or work an or as §5(C), contractor in B. amended, this state.” as 13-2928(0 2011). (West Supp. Ariz. Rev. Stat. Ann. rightly Here, the Court Bica, with De starts Canas v. (1976), providing U. S. 351 which a California involved law “ employer knowingly ‘[n]o employ shall who an alien is not entitled in if lawful residence the United States employment lawful res- effect on would have adverse
such (quoting Ann. Code Lab. ident workers.’” at Cal. Id., 2805(a)). was concluded the California This Court occupied pre-empted, Congress the field not had neither expressed “regulation illegal employment nor aliens” reg- purpose” displacing such state “the clear manifest (internal quotation marks S., ulation. 424 U. at 356-357 §5(C) omitted). decided, time De Canas was Thus, indubitably would have lawful. been Congress change only since relevant employers illegal who hire on enacted its own restrictions legislation that includes 1324a, also aliens, U. S. C. criminal) (but illegal penalties aliens who no on some civil accept employment. The concludes from unlawful Court (reasonably enough) a deliberate this “that made impose penalties seek, criminal aliens who choice engage employment,” at 405. But in, ante, unauthorized prohibit the that is not the a deliberate choice to same as Congress’s imposing penalties. intent criminal guessed regard at, law need not be to exclusion of state provision, express pre-emption but is found the law’s “any imposing or crim- excludes or local law civil which State laws) (other through licensing inal and similar sanctions than upon employ, those or recruit or who fee for refer for §1324a(h)(2) (emphasis employment, aliens,” unauthorized added). expressio sense, Common reflected the canon *38 suggests specification of alterius, unius est that the exclusio implies pre-emption employ” punishing for laws “those who punish- pre-emption including of laws the lack for other laws, ing accept employment.” “those who seek or response quotes
The Court no to this. It our credible jurisprudence “express pre-emption to an the effect that provisio[n] ordinary working pre conflict does not of bar emption principles.” (quoting Ante, v. Ameri at 406 Geier (2000)(internal quo can Honda Co., 861, Motor 529 U. S. 869 omitted)). enough—conflict pre-emption tation marks True goes say principles. “Congress It then to since de impose inappropriate penalties it be to would criminal cided engage employment,” on aliens who seek or in unauthorized contrary “[i]t that a to the follows state law is obstacle system regulatory Congress Ante, chose.” at 406. For “ ‘[wjhere comprehensive intentionally a federal scheme portion regulated leaves a controls, field without then pre-emptive can Ante, inference be drawn.’” at 406- (quoting Dept. Puerto Rico Consumer ISLA Affairs (1988)). Corp., Petroleum 485 U. All S. description pre-emption classic not of oí but conflict field pre-emption, (concededly) beyond which not occur does express pre-emption provision. terms of an 5(C) The Court concludes that “would interfere with the (another by Congress,” careful ante, balance struck at 406 pre-emption way), easy say field notion, but that is impossible primarily The Court demonstrate. relies “[proposals on the fact that to make unauthorized work a during long criminal offense and discussed were debated process Immigration drafting [the Reform and Control Act (IRCA)],” rejected “[b]ut Ante, of 1986 them.” rejection 405. There is no more reason that this to believe expressive was of desire that there be no on em- sanctions ployees, expressive than a desire that such sanctions be likely truth, left To tell the it was most ex- States. pressive ordinarily expresses: nothing of what at all. inaction assumption It is a a bill make “naive that the failure of adopted reported out of to the committee, when rejection congressional floor, the bill the same what Crosby Foreign Council, contained.” v. National Trade (in- (2000) concurring judgment) J., (Scalia, omitted). quotation ternal marks and brackets [*] [*] [*] brief for the case asserted Government in this ability “the Branch’s discretion and set Executive to exercise *39 priorities important particularly need of the because wisely.” Brief for scarce resources allocate enforcement why the Fed- United States 21. course there no reason Of re- its enforcement eral Executive’s need to allocate scarce devoting resources from its sources should disable Arizona illegal immigration Federal in its view the in Arizona that pre- Congress’s given Despite Executive short shrift. has immigration scription States United that “the laws of the uniformly,” vigorously 115, be enforced IRCA should 3384, Arizona without contradiction Stat. asserts supporting citations: “[I]n efforts have the last decade enforcement primarily Texas, leav- in California and focused areas neglect. ing comparative Arizona’s border to from suffer increasing funneling has tide The result been the illegal crossings Indeed, over border into Arizona. illegal past bor- over a third of the Nation’s decade, crossings Petition- Brief der occurred in Arizona.” (footnote omitted). 2-3 ers protect yield ability to the Arizona’s
Must reality its borders funding inadequate provided has un- enforcement—or, Executive’s worse, even to the targeting funding? wise en- It that federal
But leave that aside. has clear become priorities priorities—in on the based forcement sense of not the need to allocate resources”—is “scarce enforcement problem argued it was here. this while After case was Security Secretary an- under of Homeland consideration, program exempting enforce- nounced a age illegal immigrants ment under some 1.4 million unlawfully present 30.4 If an United individual “(cid:127) age sixteen; came to the States under the United “(cid:127) continuously for at resided in United States years .;
least five .. Remain in Migrants To To Cushman, Young Preston & Permit Obama S., Times, A1, N. Y. June A16. pp. *40 “(cid:127) currently graduated high school, school, has from general development cer- obtained education honorably discharged tificate, ; is an veteran . . . “(cid:127) [serious crime]; has not been convicted of a and “(cid:127) thirty,”5 age is not above the immigration “defe[r] then U. S. officialshave been directed against period years, action” such individual “for a of two subject husbanding to renewal.”6 The of scarce enforce- hardly justification ment can resources be the since this, conducting many the considerable administrative cost of as background ruling 1.4 checks, million and biennial requests dispensation program that the nonenforcement necessarily immigration envisions, will be deducted from en- forcement. The President at a said news conference that program right thing light the new is “the to do” in Con- gress’s pass proposed failure to the administration’s revision Immigration Perhaps though of the Act.7 is, it Arizona say, not think But to so. as the Court that Arizona does, by enforcing applications contradicts of the Im- migration boggles Act that President declines to enforce the mind. opinion’s specter looming
The Court of inutterable hor- ror—“[i]f every valid, 3 of the Arizona statute were State give independent authority prosecute could itself registration violations,” ante, at 402—seems to me so looming. pass, horrible and even less But there has come to today, specter and is with us that Arizona and the States Secretary Memorandum Janet Napolitano, Security, of Homeland Aguilar, Commissioner, David Acting V. U. S. Customs and Border Pro tection; Alejandro Mayorkas, Director, U. S. and Citizenship Immigration Services; Morton, Director, Immigration John Customs En (June (all forcement, p. 15, 2012), at http://www.dhs.gov online Internet materials 22, 2012, as visited June available in Clerk Court’s case file). 6Id., at 2. (June Immigration 15, 2012), Remarks the President on at online http://www.whitehouse.gov. support predicted: that does Federal Government written, and laws as
not want to enforce the immigrants against unprotected leaves the States’ borders one. is a issue stark whom those would exclude. So the laws mercy sovereign Execu- Federal Are the immigration laws? tive’s refusal to enforce Nation’s answering good way question Would ask: A conceivably if the Union have into the the States entered Today’s holding? contained the Court’s Constitution itself judgment surely Con fails that test. At the Constitutional jealousy delegates “the vention *41 contended 1787, sovereignty.” regard to 1 Records of the states with their 1911) (state (M. of the Farrand ed. Federal Convention Randolph). Through fun of the ment ratification of Edmund produced, the States damental that the Convention charter sovereignty the Federal ceded much of their Government. jealously guarded—as in But much reflected of it remained Independence proposals left innumerable never right imagine provision—perhaps Hall. a Now, inserted I, § 8, after Art. cl. the Naturalization Clause—which powers Congress es among “To included the enumerated upon Immigration that will be exclusive tablish Limitations only and that President will be enforced to the extent the appropriate.” delegates deems the Grand Convention would have rushed to the exits. dry legalities that case,
As often the of the discussion very proper suppresses object are of our attention gave bears human suit. Arizona realities rise to the country’s immigration problem. illegal Its the brunt of the siege by large of ille- citizens feel numbers themselves under gal immigrants property, social who strain their invade their place jeopardy. of- services, Federal and even their in lives remedy problem, indeed ficials have been unable to recently unwilling they have so. Thou- are to do shown illegal immigrants—in- sands of Arizona’s estimated 400,000 cluding just 30—are not women under children but men and immunity now assured from enforcement, and will be able compete openly employment. with Arizona citizens for protect sovereignty—not
Arizona moved to its in con- compliance complete tradiction of in law, federal but it. challenge The laws under here do not fed- extend or revise immigration merely eral but restrictions, enforce re- those effectively. securing territory strictions more If its in this power fashion is not within we cease Arizona, should referring sovereign it as I State. dissent. Thomas,
Justice in concurring part and dissenting part. agree
I with Justice law Scalia pre-empt challenged provisions does not B. of the of S. simple I 1070. that conclusion, however, reach for the rea- “ordinary son that there is no conflict between the mean- ing]” provi- of the relevant laws and that of the four Wyeth sions of Arizona law at issue here. Levine, (2009) concurring judgment) U. S. (Thomas, J., (“Pre-emption analysis freewheeling judicial should inquiry into whether state statute is tension with federal objectives, inquiry ordinary but an into whether the mean- (brackets ings and federal conflict” internal *42 omitted)). quotation marks 2(B) provides
Section of B. 1070 Arizona law that, when person they reasonably suspect enforcement officers lawfully unlawfully stopped, have detained, or arrested is present, attempt practica “a made, reasonable shall be when person” immigration pur ble, to determine the of the status procedure by Congress suant to the verification established § 11-1051(B) 1373(c). in 8 U.S.C. Rev. Stat. Ann. Ariz. (West 2012). Nothing any or other in the text of that prohibits directing federal statute Arizona from its officers immigration-related inquiries to make in situations. these contrary, expressly To the that “no State federal law states way government entity may prohibited, or in local or receiving sending federal of to or from” restricted, from immigration regarding an status” of “information ficials imposes af law an And, U. alien. 8 S. C. 1644. federal obligation respond to a State’s firmative federal officials 1373(c). immigration-related inquiries. 6 of Arizona enforcement
Section S. B. 1070authorizes law probable arrests when there officers make warrantless public of- cause to that an committed believe arrestee has that renders him removable under federal fense sovereigns, to con- States, law. have inherent law, duct arrests and until for violations of federal unless authority. Di States v. removes that See United (1948) (holding Re, 332 U. S. that state deter- validity violation of mines the of a arrest for a warrantless applicable [the] stat- law “in federal federal absence an ute”). purports withdraw Here, no federal statute (opinion authority. notes, ante, As Justice Scalia concurring dissenting part part), law does authority of officials to removable limit the arrest apply And, but do not to state officers. aliens, those statutes expressly recognizes “co- federal law that state officers operate Attorney “apprehension” General” in the lawfully present “detention” “aliens not United § 1357(g)(10)(B). Nothing in statute indi- States.” “request, ap- cooperation requires prior cates such proval, Government.” or other instruction the Federal (majority opinion). Ante, at 410 Arizona law 3 of
Section S. B. 1070makes a crime under complete present willfully unlawfully an alien to fail carry registration of 8 S. C. in violation alien document 1304(e) 1306(a). §§ incorporates simply fed Section 3 registration I eral would not Court, standards. Unlike the enforcing Congress pre-empted those hold that field of rejected frequently “[O]ur standards. cases recent have pre-emption statutory language ex field in the absence of *43 pressly requiring Camps it.” Inc. Newfound/Owatonna,
439 (1997) (Thomas, Town Harrison, 564, v. 520 U. 617 S. of J., dissenting); Dept. g., e. New see, York State Social Servs. of nothing Dublino, v. 413 Here, in the S. Congress text of the relevant federal statutes that indicates registration requirements intended of enforcement its to be exclusively province of the Federal That Government. Congress governing a “full created set of standards alien registration,” opinion), (majority merely ante, at 401 indicates capable working that it intended the scheme to be on preclude its own, not that it wanted the States from en forcing the federal standards. Hines Davidowitz, (1941), contrary. U. is not As Justice Scalia explains, ante, at Hines at most holds federal pre-empts creating registra law additional requirements. merely seeking tion But Arizona is here, registration very requirements Congress enforce created. 5(C) prohibits unlawfully present
Section B.S. soliciting, knowingly applying performing aliens from for, 5(C) only operates work in Arizona. Section individuals already ineligible whom declared to work in Nothing the United States. in the text of the immi- gration prohibits imposing laws States from their own crimi- penalties expressly nal on such individuals. Federal law pre-empts “imposing States from civil or criminal sanctions (other laws) through licensing upon than and similar those employ, employment, who or recruit or for a refer fee 1324a(h)(2) (emphasis unauthorized aliens.” C. U. S. added). impose But it leaves States free to criminal sanc- employees tions on the themselves.
Despite ordinary the lack of conflict between the meaning of the Arizona law and of the laws at provisions issue here, the Court holds various pre-empted they “stan[d] Arizona are because accomplishment obstacle full execution purposes objectives Congress.” supra, Hines, 67. *44 theory
I and objectives” have the explained “purposes of is Constitution inconsistent with implied pre-emption specula- freewheeling in because invites courts engage beyond well about roams tion congressional purpose concur- Wyeth, statutory S., text. See at 604 (opinion Motor v. Mazda see also Williamson in judgment); ring America, (2011) Inc., con- 340-341 (opinion U. S. 729, 767 Drown, in judgment); Haywood U. S. curring (2009) Clause, (dissenting Supremacy opinion). Under enacted effect pre-emptive given is to be congressionally laws, not See purposes. divined judicially legislative in Wyeth, supra, J., concurring judgment). at 604 (Thomas, of some tension between Thus, even assuming existence and objectives” Arizona’s law supposed “purposes I of the provisions would not hold that Congress, Arizona at issue on that basis. here are pre-empted in part. Alito, dissenting in
Justice concurring part Arizona’s Support This case concerns four provisions Act, S. B. Our Law Enforcement and Safe Neighborhoods 2(B) offi- 1070. Section Arizona law enforcement requires practicable,” cers to make a “reasonable “when attempt,” an officer who ascertain the status of any person suspi- reasonable lawfully detains, or arrests “where stops, unlawfully pres- cion exists is an alien person §11- Ann. ent United Ariz. Rev. Stat. States.” (West 2012). 1051(B) alien that an who Section 3 provides doc- or willfully registration fails “to alien complete carry 1306(a) is 1304(e) § guilty ument” violation of 8 U. C. or (West 13-1509(A) a misdemeanor. Ariz. Rev. Stat. Ann. 2011). 5(C) for an it a misdemeanor Section makes Supp. the United unlawfully unauthorized alien who present a public States “to work in work, solicit knowingly apply or con- place as an perform independent work employee §13-2928(C). §6 au- And tractor.” Ariz. Rev. Stat. Ann. Arizona law thorizes enforcement officers to arrest without any person probable a warrant who an officer has cause to any public believe “has committed offense that makes the person from the United States.” removable Ariz. Rev. Stat. 13-3883(A)(5). §Ann. 2(B) agree
I pre-empted. Court is not provision require That does not authorize or Arizona law en- *45 anything they already forcement to officers do are al- not existing lowed to do under federal law. The United States’ 2(B) argument pre-empted, by any that not federal stat- regulation, simply by ute or but the Executive’s current policy astounding enforcement is an assertion federal ex- power rejects. rightly ecutive that the Court agree pre-empted I also with the Court that 3 vir- tue of Hines our decision in Davidowitz, 312 Congress Our conclusion in that that ease had system” “all-embracing registration enacted an of alien regula- auxiliary that or States cannot “enforce additional attempt id., tions,” 66-67, here 74, forecloses Arizona’s impose penalties for additional, state-law violations of the registration federal scheme. §§2(B) agree part ways
While I with the Court and 3,1 on 5(C) §5(C) §§ holding on and 6. The Court’s is inconsist- (1976), ent Bica, with De Canas v. which held U. S. unlawfully employment regulation, pres- even of aliens country, ent in area is an of traditional state concern. police prece- powers implicated here, Because state are our require presume dents us to law not dis- federal does place Congress’ clear state law unless intent do so is spoken manifest. I do not with the believe has §5(C). requisite clarity justify I Nor do invalidation §6 §2(B), §6 virtually believe that is invalid. Like adds nothing authority law enforcement offi- Arizona authority they already cers exercise. And whatever little gained have is consistent with law. 2(B)
Section A §2(B) Although much law has occasioned of the Arizona controversy, authority nothing that Arizona adds to the States, al- in all like officers other officers, enforcement agree ready possess I reason, For that law. under 2(B) pre-empted. is not with the Court that 2(B) authority clearly expand quite not Section does triggered stops arrests. It is Arizona officers make or [is] only stop, . or made . . when a detention arrest “lawful local] [state law or in the other or enforcement §11-1051(B) (emphasis .” Ann. ordinance added). Ariz. Rev. Stat. 2(B) play only of- when an thus comes into Section suspicion probable cause to believe ficer has reasonable nonimmigration person Ari- committed offense. §2(B) authority plainly possessed zona officers this before took effect. 2(B) expand of Arizona also does
Section persons inquire about status officers *46 stopped lawfully person or detained. is who are When person suspicion is exists that the arrested and “reasonable unlawfully present States,” in the an United alien is §2(B) to make at- instructs Arizona officers a “reasonable person’s tempt,” practicable,” immi- “when to ascertain that 11-1051(B). gration Even Ariz. Rev. Stat. Ann. status. §2(B), Legislature the federal law Arizona enacted before inquiries. permitted In make such and local officers to state § 1357(g)(10)(A), Congress has clear that S. C. made governments formal state and need not enter into local agreements “to com- in order the Federal with Government regarding Government] [Federal municate immigration any addition, Con- In status individual.” gress Federal has that neither the Government mandated any any government may “prohibit, nor or state local or sending way entity any government or officialfrom restrict, receiving [the Government] to, or from, Federal informa- regarding citizenship immigration tion status, or lawful §1644 1373(a); any unlawful, or individual.” see also (providing government entity may or “no State local prohibited, way sending any be or in restricted, from receiving [the Government] or from Federal information regarding immigration status, of an unlawful, lawful States”). provisions alien in the United And while these preserve state and local to seek officers immigration-status information Federal Govern- §1373(c), requires ment, another federal statute, respond inquiries “by pro- Federal Government such viding requested verification or status It information.” surprise, many comes as no therefore, that States and locali- permit ties their law enforcement officers make the kinds §2(B) (re- inquiries prescribes. App. See 294-298 porting juris- surveyed that officers state and local “generally” immigration dictions ask arrestees about their jurisdictions status while 34 do not and that officers “generally” Immigration inform Enforcement Customs (ICE) they when believe arrestee to an undocumented not). only alien while 17 do has invited state and governments immigration-related inquiries local to make obligated respond. has even the Federal Government §2(B), Through Congress up Arizona taken on that invitation. deny may,
The United States does not that officers at their inquire per- own discretion, about the status of they lawfully sons whom detain. Instead, the United States 2(B) argues pre-empted impedes federal- because cooperation by mandating verify the im- that officers migration every person status of if detained there reason *47 person unlawfully present believe that the coun- is in the try. §2(B)’s The United runs mandate claims contrary “precludes to federal law in that it officers taking [the priorities Government’s] Federal and discretion interpos- “[B]y 50. account.” United States
into Brief for mandatory ing local officers and state between state counterparts,” States, their federal writes the United and §2(B) accomplishment of the “stands as an to the obstacle requirement cooperation and the full effectuation judgment of the enforcement discretion Ibid, (internal quotation vested Branch.” Executive omitted). marks and citation argument underlying premise United of the States’ to their officers,
seems to be that when left state local generally priorities own take federal enforcement devices, prem- this into account. But is no reason to think that there if it it follow that were, ise is true. And would not even 2(B)’s § is with law. Noth- blanket mandate at odds ing requires and local the relevant federal statutes priorities officers to be- consider the Federal Government’s requesting person’s immigration fore status. verification of a 1373(a) § § 1357(g)(10) Neither U. S. C. nor conditions right the Fed- of state and local officers to communicate with priori- taking its eral Government on their first account of 1373(c) ties. Nor does condition Federal Government’s obligation requests the sensitiv- to answer for information on ity enforcement discretion. state and local officers to its 1373(c) In fact, Federal Government “shall dictates immigration respond” any inquiry seeking verification of applies not the re- status, whether or command questing priorities. officer has bothered consider federal 2(B) requires consideration, Because no such federal statute does conflict with federal law.
In hard to officers event, see how state and local proceed conformity could with Federal Government’s priorities inquiry making into enforcement a sus- without pected example, of the alien’s For one status. highest priorities apprehension Federal Government’s comply and removal of a final who have failed to aliens App. order of removal. can iden- See 108. How an officer *48 persons tify inquiring those first without about their status? ultimately At bottom, the discretion that matters not is person’s verify whether to status but whether person’s to act the once status is known. reason, For that §2(B)’s requirement contrary verification not to federal law because Federal Government retains the discretion that matters most—that is, discretion law enforce the particular If cases. an Arizona officer contacts Fed- verify person’s immigration eral Government to status person country federal records reveal that the is in the un- lawfully, presumably the Federal decides, Government based priorities, person on its enforcement whether to have the custody. released transferred Enforcement thus Government, discretion lies with the Federal not with 2(B) Nothing suggests Arizona. otherwise. 2(B) quite attack on United States’ remarkable. suggests pre
The United States that a state law empted, reg not it conflicts because with a federal statute or agency’s but ulation, because it is inconsistent a federal priorities. priorities, current however, enforcement Those They nothing agency policy. are not law. are than I more recognizing am aware no of this that mere decision Court policy pre-emptive Barclays have can force. Cf. Bank PLC (1994) (hold Cal., Franchise Tax Bd. S. ing express “Executive Branch communications policy but lack the force of cannot render uncon congressionally valid, stitutional” an “otherwise condoned” law). § 2(B) present pre-empted If at were time sync it is cur because out of with the Federal Government’s priorities, unpre-empted rent it be time in the would some agency’s priorities changed? future if the agencies, Like most ICE out law enforcement does set contrary, it inflexible rules for its officers to provides To follow. guide a list of factors its officers’ enforcement case-by-case discretion basis. See Memorandum John Director, Morton, ICE, All Field Office Directors Exercising With
et Prosecutorial Discretion Consistent al., Agency Immigration Enforcement Priorities Civil Apprehension, of Aliens and Removal Detention, (June (“This no one factor list is not exhaustive and 2011) *49 attorneys agents, officers, should is ICE determinative. case-by-case always prosecutorial a discretion on consider totality of on the basis. The decisions should based conforming goal ICE’s enforce- of to circumstances, with agency’s priorities”). Among those is “the civil ment factors change immigration priorities,” which ibid., enforcement accepted, the If from administration administration. to argument give pre-emption the Execu- would United States’ do unprecedented power laws tive that invalidate approval, laws are other- with even if the state meet its duly promulgated wise regulations. with statutes and consistent federal argument, say fundamen- least, This is tally system. odds our
B 2(B) § persons suggested some will It has been cause stopped lawfully their who are to be detained violation investigation prolonged rights their while a constitutional nothing immigration on the face But is undertaken. status way suggests in a of the law that it will be enforced provision other violates the Fourth Amendment or make a “rea- The law officers to Constitution. instructs investigate immigration attempt” status, this sonable incorporating language the Fourth is best understood Indeed, the Ari- Amendment’s standard of reasonableness. §2(B) Legislature imple- zona “shall be has directed that pro- . . in a federal laws . mented manner consistent with respecting persons tecting rights of all civil privileges Ariz. and immunities of United citizens.” 11-1051(L). Rev. Stat. Ann. likely occur,
In enforce- the situations that seem most ques- present ment of will familiar Fourth Amendment 2(B)
447
suppose
To
a
situation,
tions.
take a common
car
(Recall
stopped
speeding,
nonimmigration
offense.
§2(B)
play
stop
only
comes into
where
or arrest
offense.) Suppose
nonimmigration
made for a
also that the
stop subsequently acquires
who
officer
makes the
reasonable
suspicion
country
believe that
driver entered the
ille-
1325(a).
gally, which is a federal crime. See 8
S.U. C.
generally
well
It is
that state and
established
local officers
stops
have
to make
and arrests for violations
g.,
criminal
v.
See,
laws.
e. Miller United
357
States,
(1958);
301,
U. S.
v. Di
Re,
United States
why
principle
I see no reason
this
should not
apply
crimes as
Lower
well.
courts have so
g.,
See,
held.
e.
F. 3d
Island,
Estrada
Rhode
(CA1 2010) (upholding
lawfulness
detention because
objectively
the officer
had
reasonable
ar-
belief that the
*50
violations”);
immigration
“had
restees
committed
United
(CA10 1999)
Vasquez-Alvarez,
v.
1294,
F.
176
3d
1296
(noting
general
that “state
officers
the
law-enforcement
have
authority
investigate
to
and
arrests
of
make
for violations
laws”);
immigration
722
Peoria,
Gonzales v.
F. 2d
(CA9 1983),
grounds, Hodgers-
468, 475
overruled
other
(1999)(en banc)
Durgin
(holding
v. de la
More no federal statute casts doubt on this authority. sure, To there are a handful statutes purport that to authorize state local officers make g., immigration-related See, arrests certain situations. e. 1103(a)(10) “any” (providing for extension of U. S. C. authority immigration local officers enforcement state influx of aliens imminent of an “actual or mass the event 1252e(a) authority coast”); § (providing arriving to ar- off country illegally aliens reentered rest criminal who had Government); only the Federal but after consultation with 1324(c) transport- (providing authority make arrests aliens). grant ing harboring of federal certain But a a clear con- not in some cases does manifest arrest powers gressional displace police in all intent to the States’ too an inference weak more, other cases. such Without pre-emption presumption against tradi- where our overcome Accordingly, police powers in our tional at stake. are may hypothetical driver arrest the case, the Arizona officer 1325(a) probable violating And if the cause. has officer may suspicion, detain if reasonable the officer the officer permitted by Amend- the Fourth driver, the extent entry investigated. question illegal ment, while suspi- on reasonable We have held that detention based particular crime “can be- cion the detainee committed a reasonably beyond prolonged time unlawful if it is come required complete Caballes, 543 Illinois v. mission.” stop during But if the course U. S. acquires suspicion differ- that a detainee committed a officer a reasonable crime, ent the detention be extended for verify dispel suspicion. Muehler time to Cf. (2005) (holding “no additional Mena, 544 U. justification” required Fourth Amendment was because questioning concerning prolong status did *51 detention). hypothetical if the therefore, the our case, In initially speeding, stopping after the car officer, country suspicion ille- that entered the reasonable the driver illegal entry. gally, may investigate officer for evidence length investigation remain But must and nature of this cases. within the limits set out Fourth Amendment our An if investigative can become an stop, prolonged, arrest supra, Caballes, thus cause. require probable See at 407. if a is moved from the Similarly, person site prob stop, Hayes Florida, able cause will be See likely required. (1985) 470 U. 811, 816 that the line (holding between deten tion and arrest is crossed “when the without police, probable cause or a warrant, remove from his home forcibly person or other he which is entitled to be and him place transport to the station, where he is police detained, although briefly, for investigative purposes”).
If 2(B) should properly implemented, not lead violations, constitutional but there is no en- denying 2(B) §of forcement will the occasions on sen- multiply which sitive Fourth will Amendment civil- up. issues These crop liberty concerns, it, I take are at the heart of most objections 2(B). §to Close and difficult will arise questions inevitably as to whether an officer had reasonable suspicion believe that a who is some person stopped for other reason entered is a country illegally, there risk that lawful citizens, permanent who residents, others are lawfully present the country will be detained. To mitigate risk, this Arizona could guidance issue officers the circumstances detailing rise to give reasonable of unlawful typically suspicion And in presence. of the spirit federal-state cooperation the United States Federal Government champions, could share its own Arizona could also guidelines. provide officers with a nonexclusive list forms of identifi- containing 2(B) cation sufficient dispel under of unlaw- any suspicion ful If presence. Arizona from most licenses accepts status, proof legal of roadside detentions problem will be greatly mitigated.1 effect, When the REAL ID Act of 2005 takes the Federal Government
will longer accept no fail to certain state forms of identification that meet requirements. 202(a)(1), is that requirement 312. 119 Stat. One lawfully only applicant proof identification issued
Section §3 I agree pre-empted Court, like the because, I that Although require opinion that result. read in Hines to the largely spoke in ambiguity in the Hines, Court there is some explained language pre-emption. that the Court field regula complete Congress a scheme where “has enacted registration provided the a tion and has therein standard inconsistently purpose of with aliens, cannot, states complement, Congress, or curtail with, conflict or interfere auxiliary regula or law, enforce additional or Pennsylvania finding In S., tions.” 312 U. alien-registration at 66-67. pre-empted, that observed Court registration “provided Congress had for alien standard integrated all-embracing system” single that its and law-abiding protect personal intent “to liberties was system.” through registration aliens uniform national one holding Id., that If our Hines 74. we credit system” single integrated all-embracing enacted “a “complement” registration of alien cannot that States regulations,” auxiliary system that or “enforce additional attempt impose additional, id., at 66-67, 74, Arizona’s then registration penalties re state-law of federal for violations quirements must be invalidated. 5(C)
Section § disagree agree pre-empted, I 3 is I While 5(C). large meas- so in decision to I do Court’s strike down give to our ure because the fails to same solicitude Court willing give our it is Canas, decision in De upheld against Canas, decision in Hines. In De the Court employ- pre-emption imposing challenge a fines on state law unlawfully present ers that hired who were aliens id., present 202(c)(2)(B), anticipate I in the at 313. United States. most, all, eventually if not will of identification issue forms 2(B). presence suffice to establish lawful under explained United States. The Court that the mere fact *53 subject the of “aliens are a state statute not render it does regulation immigration.” 424 S., at 355. The Court emphasized possess instead that broad “States police regulate powers employment under their to rela- the tionship protect to Id., workers within State.” at 356. light authority, In of that broad declared Court “[o]nly complete power demonstration ouster of state purpose .. Congress’ . was The clear and would manifest justify” regulation designed the conclusion that to “state protect give way paramount vital state interests must (some legislation.” quotation Id., federal at 357 internal omitted); Agrosciences LLC, marks see also v. Bates Dow (2005)(“In regula- U. S. areas of state traditional sup- [the Court] assume[s] tion, that a federal statute not planted Congress state law unless has made such an inten- (some quotation tion ‘clear and manifest’” marks internal omitted)). changed.
The Court now tells us that times have Since Congress comprehensive Canas, De has enacted “a frame- illegal combating employment work aliens,” though even who aliens seek or obtain work unauthorized subject they are not civil sanctions, to criminal can suffer omitted). (internal penalties. quotation Ante, marks Undoubtedly, regulation perva- in this is area more today. unchanged: sive But task our remains determine whether the manifest federal scheme discloses a clear and congressional displace state intent law. gives presumption against
The Court to our short shrift Having pre-emption. express congressional no statement of support analysis, intent to its infers stale Court from legislative history comprehensiveness and from the “Congress federal scheme that made a deliberate choice not impose penalties engage in, criminal seek, on aliens who or §5(C) employment.” Ante, unauthorized at 405. Because imposes penalties, such concludes that it stands Court by Con- chosen
as an obstacle to of enforcement the method gress. Ante, at 406-407. thing is that scheme
The one is clear from federal Congress impose penalties on criminal not chose But that does aliens unauthorized work. who seek obtain Congress pre-empt criminal not mean that also chose necessary. penalties. plausible, far from but inference regula- adopt a we not to before, As have said “decision prohib- regulation equivalent tion” not “the functional adopt- iting political all States subdivisions and their Mercury ing Sprietsma regulation.” Marine, 537 such a statutory scheme, U. S. With things If that alone chooses to do some others. *54 enough pre-emptive there would intent, were to demonstrate especially regulate, be little left over States to authority now that reaches so far and wide. tiny power. occupy This would in a sea of federal islands powers implicating explains why state state laws traditional pre-empted manifest” are unless is “clear and not there congressional intention to do so. Congress only to there intended
Not is little evidence that pre-empt 5(C), that like there some evidence state laws is Congress opposite making it unlaw In intended the result. employers aliens, 8 U. S. C. ful for hire unauthorized see to § 1324a(a),Congress “any or local State made it clear that (other through imposing civil or criminal sanctions than laws)” licensing employers pre-empted, upon and similar was 1324a(h)(2). Noticeably any directive similar absent targeting pre-empting who seek local laws aliens state or Congress employment. or obtain unauthorized Given pertaining expressly pre-empted certain and local laws state employers pertaining but silent about laws remained Congress employees, one intended could infer that preserve employee regulate state and local very equation. it raises serious least, side At the Congress pre-empt doubts about whether intended to such authority. any might
The Court dismisses inferences that be drawn express pre-emption provision. from the ante, See at 406. though provision But even the existence of that “does not ordinary working pre-emption bar principles” of conflict “ ” impose ‘special against or pre-emption, burden’ Geier v. (2000), American Honda Motor Co., 529 U. S. 869-870 probative congressional it is still intent. And it is the Congress intent of that is the “ultimate touchstone.” Retail Clerks Schermerhorn, 375 U. S. Congress’ impose Court infers decision not to penalties Congress pre- criminal intended to
empt penalties. given express state criminal But that the pre-emption provision only regu- covers state and local laws lating employers, just one could as well infer that pre-empt did not intend to state or local laws aimed at alien employees unlawfully Surely who seek or obtain work. Congress’ express pro- pre-emption decision not to extend its 5(C) probative vision to local laws like is more subject pre-emption its intent than its decision impose penalties federal criminal for unauthorized work. point emphasize In I event, wish inferences way. necessary can be drawn either There are no inferences point decisively against pre-emption. for or Therefore, *55 regulation seriously employment if we that take state is a pre-empted only a traditional state concern and can be showing congressional of re- “clear and manifest” intent as 5(C) quired § by prece- De then Canas, must survive. “Our high dents a establish that met if a state threshold must be pre-empted conflicting purposes law is to be with a federal Act.” Chamber Commerce United (2011) Whiting, opin- (plurality America ion) (internal 563 U. S. 607 omitted).
quotation I do not marks believe the United States has surmounted that here. barrier
Section §6 pre- disagree that is I decision also with Court’s authority empted. provision Ari- little to the This adds already possess, and whatever additional zona officers authority law. with federal Section confers consistent an warrantless Arizona statute that authorizes amended 2010). (West §13-3883 Ann. arrests. See Ariz. Rev. Stat. already permitted arrests 6 was statute added, Before committed felonies, without warrant for misdemeanors arresting presence, petty offenses, and certain officer’s 13-3883(A)(l)-(4). §§ See traffic-related criminal violations. by authority already Largely duplicating conferred §13- §6 prior subsections, subsection, these added new (West 3883(A)(5) 2011), Supp. officers that authorizes probable that the arrestee make arrests on cause warrantless “public the arrestee has offense” which committed “public de- A offense” is from the United removable States. punishable imprisonment fine fined or a as conduct that is according occurred the State where the conduct law of punishable con- law had the would be under Arizona 13-105(27). duct in Arizona. occurred See authority way, any, enlarge In does 6 the arrest what if §6 suggested has confers Arizona officers? It been (1) following circumstances: new in the three charged has where the arrestee committed but not been (2) committing State; the officer an another where offense probable an of- has committed cause to believe the arrestee prose- previously fense arrested but for which he was (3) already cuted; committed but where arrestee F. 3d served the a removable sentence for offense. (CA9 2011). categories, exceedingly are These narrow involving rarely But such will arise. circumstances that possible, decide whether cases are and therefore we must precludes a there are under which circumstances making prohable cause officer from arrest based on that the arrestee committed a removable offense.
455 A The idea that state out may and local officers arrests carry in the law service of federal is not As pre- unprecedented. that viously noted, our cases establish state and local officers make may of federal warrantless arrests violations and that in “absence of an federal statute applicable law of the where state an arrest without warrant takes place Re, Di determines S., 589; its at U. see also validity.” Miller, S., that, where a state officer (stating makes arrest based on “the of the law, lawfulness arrest without warrant to be determined reference law”). I under- Therefore, given premise, which stand both the United States Court accept, state and local officers do make authority have inherent in arrests aid of federal ask whether law, we must has done in to curtail anything authority or pre-empt this case. particular
Neither the United nor the Court far States so goes say that state and local have no to arrest crim- power officers inal aliens based on To fly their do so would removability. §§ the face of U. S. C. Under 1357(g)(10). 1357(g)(l)-(9), the Federal Government enter formal agreements into may with States under which their officers municipalities perform certain of a But duties officer. makes clear §1357(g)(10)(B) and municipalities need not enter into those “otherwise agreements cooper- ate identification, ... re- detention, or apprehension, moval of aliens not in the lawfully United States.” present It goes without that state and local officers could saying provide deten- meaningful cooperation apprehension, tion, and ultimate criminal aliens without some removal of power to make arrests.
Although §1357(g)(10) state and local au- contemplates criminal aliens for the of re- thority apprehend purpose moval, out hand that of- rejects Court any possibility ficers could exercise without federal direction. *57 “ambiguity to what
Despite as acknowledging that there is says coherent cooperation,” “no that the Court constitutes understanding incorporate unilateral of the term would being remov- for an alien decision of officers arrest request, approval, any instruction or other able absent adopts The Ante, at 410. Court the Federal Government.” unnecessarily cooperation. No one an view of stunted cooperate say would that a state or local officer has failed by making Un- on-the-spot law. federal arrest enforce necessarily uncooperative. aid is not solicited making persist an arrest sure, To were an officer be not would that officer such conduct unwanted, knows cooperation. nothing as But in the relevant count suggests Congress who aliens statutes does not want To the have be committed removable offenses to arrested.2 1226(c)(1) § contrary, “shall the Executive commands having custody deportable any take into alien” who is 1226(c)(2)substantially § specified committed a And offense. has dis- limits the under which the Executive circumstances paragraph custody cretion to release held in aliens under having if an So officer an alien who is removable arrests 1226(c)(1), § the Federal one committed crimes listed in custody. obligated Government is to take the alien into Congress generally requires to take That the Executive custody on the doubt of criminal aliens casts considerable Govern- Court’s concern obstacle to the Federal is an that the au- ment’s thority exercise of discretion. Court claims §6 without conferred “could be exercised input an arrest from the Federal about whether Government particular allow “would is warranted in case” and this resulting immigration policy,” the State to achieve its own “unnecessary . who harassment of some .. aliens Ante, at 408. officials determine should not removed.” 1226(c)(1) many, most, But In if belies the Court’s fear. appre well, made the goes That for the Executive Branch has which App. 108. priority. hension removal of criminal aliens See involving having cases aliens who are removable for com- mitted offenses, criminal left the Executive no custody. discretion but to take alien into local State process by arresting officers do not frustrate removal complete criminal aliens. The Executive retains discretion ultimately over those are whether aliens And removed. once the Federal Government makes determination that a particular will criminal alien not be removed, then Arizona presumably longer officers are no authorized under to ar- rest the alien.
To sure, not all offenses which officers have author- 1226(c)(1). § ity §by to arrest under 6 As are covered Congress aliens offenses, who have committed those has 1226(a) § given the Executive discretion under over whether pending to arrest and detain a decision them on removal. But the mere fact that the Executive has discre- enforcement police powers tion cannot mean that the exercise of state support automatically pre-empted. If of federal law is were true, then state and local could make ar- officers never rests to enforce federal statute because the Executive always general at least has some discretion over enforce- practical ment of federal law as a But even assum- matter. 1226(a) § ing express statutory grant that the of discretion in congressional pre-empt somehow indicates desire to unilat- authority eral state local to arrest criminal aliens cov- § provision, given pre-empted ered 6 is not face its 1226(c)(1). § overlap its with substantial §6 emphasizing It bears not mandate does apprehension of all aliens who have committed warrantless they only Instead, crimes for which it are removable. grants permission such ar- local officers make challenge premature, rests. The trouble this with facial is opportunity implement that it affords Arizona its no way any potential in a that would avoid conflicts with example, guidelines promulgate law. For Arizona could § regulations limiting authority by 6 to the arrest conferred 1226(c)(1). § specified extent And to the crimes 1226(c)(1) covered,3 are exact crimes about which unclear identify specific go crimes Arizona could even further and alien be removable. for which there no doubt an would point plenty permissible applications is that are there at this the statute 6, and the should not invalidate Court point im- Arizona has at indication that without least some plemented Congress' in a clear it manner odds challenge ato intent. have facial manifest We said successfully” challenge “the to mount statute is most difficult challenger set circum- “the must that no because establish [statute] valid.” stances which would be exists under (1987); also see Salerno, United States U. S. (1995) (apply- 143, 155, n. 6 Edwards, Anderson v. 514 U. S. case). ing pre-emption As standard Salerno heavy I has carried that do United States not believe the burden.
B §6 Finally, with federal tells conflicts the Court us that provides local with “even law because state and officers greater possible on the basis of to arrest aliens removability given im- than trained federal *59 points migration Ante, to at 408. The officers.” Court § 1357(a)(2), empowers officers U. S. C. “authorized” which employees a war- of to make arrests without federal ICE viola- if in rant “the alien arrested in United States so likely regulation [immigration] to tion of and is law escape Be- a can his arrest.” obtained for before warrant §6 “re- cause officers to make arrests would allow Arizona gardless alien a federal has issued or the whether warrant likely escape,” ante, Court 408, at concludes objectives. accomplishment Congress’ is an obstacle readily particular 3 I admit that it can be difficult to whether determine v. Ken See Padilla will necessarily conviction make an alien removable. (2010) tucky, J., (Alito, concurring judgment). 559 U. S. 377-378 only But 6 is an obstacle the extent it conflicts with Con- gress’ preclude clear and manifest intent to state and local making except officers from arrests where a warrant likely escape. By granting has issued or the arrestee is authority warrantless arrest tó officers, strip not an manifested unmistakable intent to state and authority local of their warrantless arrest under officers state law. authority
Likewise, limitations on federal arrest do mean that the arrest and local officers similarly opinion Miller, must be limited. Our 357 U. S. case, instructive. In that District Columbia offi- is. by accompanied cer, a federal made an officer, arrest based suspected on a Id., federal narcotics at offense. 303-304. statutory The federal officer did not have authorization warrant, arrest without a at Id., but local officer did. 305. We held that District of Columbia dictated Id., lawfulness of the arrest. at Where a state or 305-306. local officer makes a warrantless arrest to enforce federal law, we said that “the lawfulness of the arrest without war- by rant is Id., to be determined reference to state law.” may 305. §6, Under an Arizona officer be authorized to make arrest that a federal officer not be authorized 1357(a)(2). to make under clear, As Miller fact makes pursu- alone does not render arrests state or local officers §6 ant congres- unlawful. Nor does it manifest clear displace police powers sional intent to the exercise of state brought that are to bear aid federal law.