Today, the United States Supreme Court issued its opinion in Arizona v. United States. By a vote of 8 -0, the Court found that the most controversial provision of the law, as written, did not violate federal law, and thus could stand.
Section 2(B) of the law requires local law enforcement officers, when conducting a stop, detention or arrest, to make efforts to verify a person’s immigration status. All eight Justices (Justice Kagan recused herself from the decision) found this provision to be constitutional. The Court left open the question of whether, as applied, a particular stop, detention or arrest could violate federal law. The Court held, at pages 27-28,
The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.
As an example of what the Court means, the Court speaks about someone stopped and given a warning for jaywalking, and someone arrested for driving under the influence of alcohol. I would suppose that detaining the jaywalker for a period of time might not pass muster, but detaining the DUI driver for a period of time would probably be acceptable. Also, the law prohibits profiling in making the initial stop, so, as applied to a particular person, the initial stop could be illegal if profiling was the only basis for the stop. Consequently, until the Arizona courts begin to rule on the circumstances surrounding the stop and detention, the Court cannot say whether the Constitution may have been violated in any particular case.
Three of the justices, however, would have gone further. Justices Scalia and Thomas, in separate opinions, would have found the three other challenged provisions to be constitutional. Those provisions provided that failure to comply with federal alien registration requirements was a misdemeanor under Arizona law (Section 3), seeking work or working if one is an illegal alien was a misdemeanor (Section 5 C), and, allowing officers to arrest without a warrant a person if the officer has probable cause to believe the person has committed a deportable offence (Section 6). Justice Alito, however, believes that only Section 3 violates federal law, and the remaining three provisions should stand.
The main opinion, finding Section 2 (B) to be constitutional was written by Justice Kennedy and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, and Sotomayor.