United States v. Arizona

Opinion by Judge PAEZ; Concurrence by Judge NOONAN; Partial Concurrence and Partial Dissent by Judge BEA.

OPINION

In April 2010, in response to a serious problem of unauthorized immigration along the Arizona-Mexico border, the State of Arizona enacted its own immigration law enforcement policy. Support Our Law Enforcement and Safe Neighborhoods Act, as amended by H.B. 2162 (“S.B. 1070”), “make[s] attrition through enforcement the public policy of all state and local government agencies in Arizona.” S.B. 1070 § 1. The provisions of S.B. 1070 are distinct from federal immigration laws. To achieve this policy of attrition, S.B. *344 1070 establishes a variety of immigration-related state offenses and defines the immigration-enforcement authority of Arizona’s state and local law enforcement officers.

Before Arizona’s new immigration law went into effect, the United States sued the State of Arizona in federal district court alleging that S.B. 1070 violated the Supremacy Clause on the grounds that it was preempted by the Immigration and Nationality Act (“INA”), and that it violated the Commerce Clause. Along with its complaint, the United States filed a motion for injunctive relief…

concurring:

I concur in the opinion of the court. I write separately to emphasize the intent of the statute and its incompatibility with federal foreign policy.

Consideration of the constitutionality of the statute begins with Section 1 of the law, which in entirety, reads as follows:

This section of the act constitutes an authoritative statement of the legislative purpose. The purpose is “attrition,” a noun which is unmodified but which can only refer to the attrition of the population of immigrants unlawfully in the state. The purpose is to be accomplished by “enforcement,” also unmodified but in context re *367 ferring to enforcement of law by the agencies of Arizona. The provisions of the act are “intended to work together.” Working together, the sections of the statute are meant “to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”

It would be difficult to set out more explicitly the policy of a state in regard to aliens unlawfully present not only in the state but in the United States. The presence of these persons is to be discouraged and deterred. Their number is to be diminished.…

concurring in part and dissenting in part:

I quite agree with the majority that “[t]he purpose of Congress is the ultimate touchstone” in determining whether Arizona’s S.B. 1070 is preempted under the Supremacy Clause. Retail Clerks v. Schermerhom, 375 U.S. 96, 103 , 84 S.Ct. 219 , 11 L.Ed.2d 179 (1963). Thus, this court is tasked with determining whether Congress intended to fence off the states from any involvement in the enforcement of federal immigration law. It is Congress’s intent we must value and apply, not the intent of the Executive Department, the Department of Justice, or the United States Immigration and Customs Enforcement. Moreover, it is the enforcement of immigration laws that this case is about, not whether a state can decree who can come into the country, what an alien may do while here, or how long an alien can stay in this country.

By its very enactment of statutes, Congress has provided important roles for state and local officials to play in the enforcement of federal immigration law. First, the states úbe free, even without an explicit agreement with the *370 federal government, “to communicate with the Attorney General regarding the immigration status of…

Before: JOHN T. NOONAN, RICHARD A. PAEZ, and CARLOS T. BEA, Circuit Judges.

Opinion by Judge PAEZ; Concurrence by Judge NOONAN; Partial Concurrence and Partial Dissent by Judge BEA.

PAEZ, Circuit Judge:

In April 2010, in response to a serious problem of unauthorized immigration along the Arizona-Mexico border, the State of Arizona enacted its own immigration law enforcement policy. Support Our Law Enforcement and Safe Neighborhoods Act, as amended by H.B. 2162 ("S.B. 1070"), "make[s] attrition through enforcement the public policy of all state and local government agencies in Arizona." S.B. 1070 § 1. The provisions of S.B. 1070 are distinct from federal immigration laws. To achieve this policy of attrition, S.B. 1070 establishes a variety of immigration-related state offenses and defines the immigration-enforcement authority of Arizona's state and local law enforcement officers.

Before Arizona's new immigration law went into effect, the United States sued the State of Arizona in federal district court alleging that S.B. 1070 violated the Supremacy Clause on the grounds that it was preempted by the Immigration and Nationality Act ("INA"), and that it violated the Commerce…