Arizona’s SB 1070 Immigration Bill Deemed Mostly Unconstitutional Today by Supreme Court

Arizona’s immigration bill SB 1070 has been the subject of much media attention and we’ve reported on the bill here on FFC on several different occasions. The law was challenged and the Ninth Circuit granted an injunction against enforcement of four provisions in the bill. The Supreme Court granted certiorari on the case and the Court’s decision on Arizona SB 1070 was announced today.

The four provisions of the Arizona SB 1070 bill were challenged on the grounds of being preempted by the federal government authority and therefore unconstitutional. The Supreme Court ruled today that three of those four provisions are explicitly preempted by federal law, and the fourth must be construed narrowly in order to be constitutional.

The three provisions in Arizona SB 1070 deemed unconstitutional by the Supreme Court are: (1) state law crime of being in the country illegally, (2) ban on working in the state, and (3) warrantless arrest of individuals suspected to have committed a deportable crime.

The Supreme Court ruled that these three provisions are unconstitutional because the federal government has full authority in making laws about immigration. This authority comes in part from the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” in Article I §8 of the US Constitution and is further supported by the principle of preemption.

In some instances it is important that the federal government alone have the authority to make laws. Immigration is one of those areas. This is because immigration policies affect our relationships with other countries, the way US citizens are treated abroad, as well as the way immigrants in the US are treated and protected under US law. Immigration also affects trade, investment, and tourism, all financially important industries in the US. It is also important that foreign countries can communicate with the US about our immigration policies with one national sovereign, not fifty individual states. For all of these reasons there has been a long standing legal precedent that immigration is governed by the federal government, and therefore states laws regulating immigration are preempted.

The provision requiring police officers to check the immigration status of detainees before they are released was not ruled preempted by federal immigration laws. However, the Supreme Court relied on legal precedent that states if a law can be enforced in either a constitutional or unconstitutional manner, the Court cannot rule on the law until it is enforced by the States, because the States may in fact enforce the law in a constitutional manner. Its not fair for the Court to assume that the States will enforce a law in an unconstitutional manner, without giving the States a chance to actually enforce the law.

However, in regard to checking immigration status, the Court determined that detaining a person longer than necessary, just to check their immigration status would be a constitutional violation. Also, people cannot be detained on suspicion of illegal immigration status, they must be detained for other valid legal reasons and then before release their immigration status can be checked as long as other constitutional provisions are not violated. This ruling is extremely narrow, and most likely Arizona will push this interpretation to its limits, and the law will be challenged once again, after the state sets the boundaries of enforcement.

About Kimberly:
Kimberly is a law student at the University of Denver Sturm College of Law. When not studying or writing, she can be found devouring video games and books. She is commonly caught muttering under her breath a critique of the consumeristic mechanism that constantly insists on bombarding her personal space.


  1. You can bet that Arizona will push this to the limits. Our state officials don’t know how to do things any other way.

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