Immigration Policy Project

June 25, 2012

U.S. Supreme Court Rules on Arizona's Immigration Enforcement Law

The U.S. Supreme Court handed down its decision today in Arizona v. United States. At issue is whether federal law preempts the following provisions of Arizona’s omnibus immigration law (SB 1070), enacted in 2010. 

Section 2B, requiring law enforcement officers to determine immigration status during a lawful stop.


Section 3, creating a state crime for the failure to apply for or carry federally issued alien registration papers.


Section 5, making it unlawful for an unauthorized alien to solicit, apply for or perform work.


Section 6, authorizing the warrantless arrest of a person where there is probable cause to believe the person to have committed a public offense that makes the person removable from the United States.


Immediate Impact:
 Since Arizona enacted its law, five states—Alabama, Georgia, Indiana, South Carolina and Utah—enacted similar legislation in 2011. The lower courts have either partially or wholly enjoined these statutes. In particular, lawful stop provisions are present in Alabama’s HB56, Georgia’s HB87, South Carolina’s S20, and Utah’s H116. Failure to carry alien registration papers is considered a crime in Alabama and South Carolina. Also in Alabama and South Carolina is it unlawful for unauthorized aliens to solicit or perform work. Finally, Indiana’s SB 590 allows officers to make a warrantless arrest upon a probable cause belief that the individual has been indicted or convicted of an aggravated felony.













Omnibus Legislation in 2012: Unlike 2011, when more than 50 omnibus bills were introduced in 30 state legislatures, in 2012, only five states introduced omnibus enforcement bills similar to Arizona’s law, and none have been enacted. Bills in Mississippi, Missouri and West Virginia failed.   Kansas ended its regular legislative session and Rhode Island’s legislative session is scheduled to end July 2. 

The only state to act on an omnibus bill in 2012 was Alabama, which amended its 2011 law. The legislation eliminated the 2011 provision that allowed a citizen to bring legal action to enforce immigration law; amended the definition of business transaction to “public records transaction” limited to verifying citizenship or legal immigrant status for license plates, driver’s license/ID card, business, commercial or professional licenses (and not marriage licenses or water); and amended the state’s E-Verify requirement to require participation by primary contractors but not their subcontractors. 

All immigration bills in 2012: For the first time in seven years, immigration related bills and resolutions declined sharply in the first quarter of 2012. Compared to 1,538 bills in the first quarter of 2011, only 865 bills and resolutions relating to immigrants and refugees were introduced in the first quarter of 2012, a drop of 44 percent. Immigration-related bills have been considered in every state legislature in session in 2012. Key factors for the decline include:  five fewer states were in session, accounting for about a third of the reduction; redistricting and state budgets took priority in some state policy discussions, with some concerns raised about the cost of taking on federal immigration responsibilities and the potential for litigation. But most significantly, legislators cited the pending ruling from the Supreme Court on the extent of states’ authority in immigration enforcement as a reason to postpone state action. 

What’s next: No action is likely in 2012 as most legislatures have ended their legislative sessions for the year. Immigration could return as topic of debate in state capitols in 2013. The federal preemption case has been decided, but still to come are lawsuits based on equal protection. Arizona Judge Bolton, who enjoined SB1070, has allowed a class action lawsuit to test additional constitutional questions not considered in the Supreme Court case addressing the Fifth Amendment right to due process, First Amendment right to free speech and 14th Amendment right to equal protection.

Prepared by:

Chau Lam, Fellow and
Ann Morse, Program Director
Immigrant Policy Project
National Conference of State Legislatures