- Section 3, creating a state law crime of being unlawfully present in the United States and failing to register with the federal government;
- Section 5, creating a state law crime of seeking work or working while not authorized to do so;
- Section 2, which requires state and local officers to verify the citizenship status of persons arrested, stopped or detained; and
- Section 6, which authorizes warrantless arrest of non-citizens believed to be removable.
Immigration policy has been part and parcel of U.S. foreign relations since the country’s founding. As this Court has recognized, the text, history, and structure of the Constitution require that the U.S. government speak with one voice on all issues of international relations. Consequently, the exclusivity of the national government’s power over foreign policy matters such as trade or war applies with full force to immigration policy, including the regulation of aliens crossing or within U.S. borders.Justice Kagan has recused herself from this matter; if the Court ties 4-4, the decision below blocking SB 1070's enforcement will be upheld. And if you want the argument in a nutshell, here it goes from Solicitor General Donald Verrilli's argument against SB 1070:
[...] Arizona’s S.B. 1070 illustrates the ways in which state immigration laws can interfere with and thereby harm the Nation’s foreign relations. It inherently undermines the exclusivity and uniformity of federal foreign relations power, threatens negative consequences for U.S. relations with other countries, and risks retaliation to U.S. citizens abroad.
JUSTICE SOTOMAYOR: General, could you answer Justice Scalia's earlier question to your adversary? He asked whether it would be the Government's position that Arizona doesn't have the power to exclude or remove -- to exclude from its borders a person who's here illegally.
GENERAL VERRILLI: That is our position, Your Honor. It is our position because the Constitution vests exclusive authority over immigration matters with the national government.
JUSTICE SCALIA: All that means, it gives authority over naturalization, which we've expanded to immigration. But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?
GENERAL VERRILLI: Your Honor, the Framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations. The national government, and not an individual State --
JUSTICE SCALIA: But it's still up to the national government. Arizona is not trying to kick out anybody that the Federal government has not already said do not belong here. And the Constitution provides -- even -- even with respect to the Commerce Clause -- "No State shall without the consent of Congress lay any imposts or duties on imports or exports except," it says, "what may be absolutely necessary for executing its inspection laws."
The Constitution recognizes that there is such a thing as State borders and the States can policetheir borders, even to the point of inspecting incoming shipments to exclude diseased material.
GENERAL VERRILLI: But they cannot do what Arizona is seeking to do here, Your Honor, which is to elevate one consideration above all others. Arizona is pursuing a policy that maximizes the apprehension of unlawfully present aliens so they can be jailed as criminals in Arizona unless the Federal Government agrees to direct its enforcement resources to remove the people that Arizona has identified.
So what's going to happen here? This is a facial challenge to the law—i.e., "under no circumstances can it be constitutionally enforced," as opposed to an as-applied challenge ("unconstitutional as to these circumstances"). As such, the surely-in-need-of-a-vacation Paul Clement, arguing for Arizona, called for a wait-and-see attitude towards the law's enforcement. He urged the Court to trust Arizona to enforce it fairly, and view SB 1070 as a well-meaning way to assist the federal government in doing its job:
JUSTICE BREYER: [...] Example one is the person is arrested. Now, it says any person who is arrested shall have the person's immigration status determined before the person is released. So I wonder if they have arrested citizen, he's Hispanic-looking, he was jogging, he has backpack, he has water in it and Pedialyte, so they think, oh, maybe this is an illegal person. It happens he's a citizen of New Mexico, and so the driver's license doesn't work.Will it work? Dahlia Lithwick was there:
And now they put him in jail. And are you -- can you represent to us -- I don't know if you can or not -- can you represent to us he will not stay in jail in detention for a significantly longer period of time than he would have stayed in the absence of section 2(B)? Do you want to represent that or not?
MR. CLEMENT: I don't want to represent that --
JUSTICE BREYER: All right. Now, if you cannot represent that -- and I'm not surprised you don't want to -- I mean, I don't know --
MR. CLEMENT: Sure, sure. But what I can represent --
JUSTICE BREYER: What?
MR. CLEMENT: -- is that he's not going to be detained any longer than the Fourth Amendment allows.
Interestingly, it’s Sotomayor and Justice Samuel Alito who seem most concerned about what happens when U.S. citizens get swept up in the Arizona dragnet. Alito questions Clement about a hypothetical U.S. citizen, pulled over by police for driving 10 miles over the speed limit and suspected of being an illegal alien. “How would that work out? If you do the records check, you're not going to get anything back, right, because the person is a citizen.” Sotomayor even seems to tacitly acknowledge that she herself is the justice most likely to be arrested under the law, noting, “Today, if you use the names Sonya Sotomayor, they would probably figure out I was a citizen,” but that there is no U.S. citizen database. ...
Two other provisions at issue today make it a state crime to be in Arizona without legal immigration papers and criminalize any attempt by undocumented aliens to work or attempt to work in the state. They both appear to raise red flags for the justices, especially Roberts, Kennedy, and Alito, who don’t seem persuaded by Clement’s argument that Arizona’s zeal in punishing employees isn’t in conflict with Congress’ decision to punish employers. That raises the possibility that the decision here won’t be a neat one, with the court splitting on which parts of the statute survive and which must go.