On April 2010, the law SB 1070 also known as “Support Our Law Enforcement and Safe Neighborhoods Act”, designed to curb illegal immigration into the United States, and specifically into Arizona, was issued and signed by the governor of Arizona. The stated legislative intent behind SB 1070 was forcing illegal immigrants to leave the United States on their own accord. Some legislators called this “attrition through enforcement.”
The law had several major parts to it, in the following provisions:
1) All state and local police officers, performing a lawful stop or arrest, must also check the immigration status of a person the officer believes is in the country illegally. Furthermore, the suspect shall not be freed until the officer could determine the his / her immigration status.
2) According to SB 1070 failing to carry immigration documents, physically and constantly, is a state criminal offense. In parallel, and at the same time the law –somewhat vaguely– prohibited police officers from using race or national origin based reasons for enforcing this provision.
3) SB 1070 also prohibited an illegal alien from performing or soliciting work.
Shortly after Arizona State Government has issued this law, it was challenged in federal court by US Federal Government, being a violation of the “commerce clause,” which basically means that the law impinged on the exclusive authority of the Federal Government to create immigration policy, and to enforce immigration law. The case eventually reached the United States Supreme Court. The court held that the second two provisions (listed above) were unconstitutional because they both interfered with the Federal Government’s authority to create immigration policy. The Supreme Court also held the laws went further than Federal Law by creating new crimes where the federal framework did not envision crimes to exist.
While the court did rule that the first provision was constitutional because there was nothing in the Federal Law that would preempt this law, but declared that if it was later found that the law is being applied in a discriminatory matter, then this provision of SB 1070 could also be struck down.
Several other states have also attempted to pass similar laws to Arizona’s. For example, Georgia has recently passed a law mirroring Arizona State’s law, and it was struck down by the Eleventh Circuit Court of Appeals.
It remains to watch how the law will affect the nation’s immigration policy. Already the White House new administration has pledged to overhaul the United States’ immigration system by the end of Summer 2013, and give this reform a top national priority. What is certain is that the Supreme Court’s decision has basically shut down many state immigration laws and states are hesitant to pass more laws until Congress steps in and creates a new comprehensive immigration framework.
The information contained in this article does not constitute a legal opinion nor does it serve as replacing a proper individual legal consultation. Any use of this information shall be entirely at the risk of the reader.
This article was written by Dotan Cohen Law Offices, an immigration law firm that handles legal matters related to the United States, Australia, United Kingdom, Canada, and Israel. Our contact details are:
Tel. +1-646-797-5717
e-mail: [email protected]
