Arizona v. United States
Arguments on April 25
I. Issue before the Supreme Court1
Whether federal immigration laws bar Arizona’s attempt at cooperative law enforcement and impliedly
preempt four provisions of S.B. 1070 on their face.
II. Opinions Below
 United States v. Arizona, 641 F.3d 339 (9th Cir. 2011)
 United States v. Arizona, 703 F.Supp.2d 980 (D. Ariz. 2010)
III. Statute Being Challenged
 Arizona Senate Bill 1070 (2010)
Four provisions of S.B. 1070 are being challenged by the United States2
1. Section 3, Ariz. Rev. Stat. Ann. § 13-1509: makes it a state crime to violate federal
law requiring certain aliens to maintain federal registration papers
2. Section 5, Ariz. Rev. Stat. Ann. § 13-2928(C): makes it a state crime for an
unauthorized alien to apply or engage in work as an employee or independent
contractor
3. Section 2, Ariz. Rev. Stat. Ann. § 11-1051(B): two-part provision requires officer to
determine, when practical, the immigration status of an individual who is stopped or detained
for reasonable suspicion that the person is unlawfully in the United States; and if an
individual is arrested for any reason, law enforcement must verify the person’s
immigration status before releasing him
4. Section 6, Ariz. Rev. Stat. Ann. § 13-3883: allows state police officers to make a warrantless
arrest of any person whom they have probable cause to believe has committed a crime that
makes them removable from the United States
IV. Parties to the Proceedings
 Plaintiff/Respondent: The United States
 Defendants/Petitioners: The State of Arizona and Governor Janice K. Brewer
V. Major Legal Arguments
 Petitioners’ Arguments in support of S.B 10703
A. States have authority to regulate unlawfully present aliens in a manner consistent with
Federal immigration law
1
I want to thank my excellent research assistant, Lee Slack, for her drafting this summary
2
State of Arizona v. United States of America, 2011 WL 5548708 (U.S.), 7-9
State of Arizona v. United States of America, 2012 WL 416748 (U.S.)
3
1. Preemption Principles
2. State authority to regulate unlawfully present aliens
B. The law enforcement provisions of S.B. 1070 sections 2(B) and 6 are constitutional
1. Federal law expressly authorizes states and the federal government to communicate
and cooperate with each other on immigration enforcement
2. The Ninth Circuit misconstrued Section 2(B) and erred in holding Section 2(B) facially
invalid
3. The authority conferred by Section 6 to make arrests for removable crimes is
Constitutional
a. State officers have inherent authority to enforce the immigration laws
b. Section 1357(g)(10)4 recognizes states’ ability to make the arrests authorized
by section 6 and the facial attack on section 6 cannot succeed
C. Section 3 is constitutional
1. States are well within their right to prohibit conduct that is prohibited by federal law
2. Section 3 is an example of “parallel” enforcement
3. Section 3 is in line with Chamber of Commerce of U.S. v. Whiting5, which upheld an
Arizona statute that revoked business licenses of those employing unauthorized aliens
a. Court reasoned that the Arizona law was in line with the IRCA’s ban on
employing unauthorized aliens and was therefore not preempted
D. Section 5(C) is constitutional
1. States have the authority to regulate employment relationships
2. Section 5(C) reflects federal objectives of forbidding the hiring of unauthorized
aliens
E. Foreign criticism for S.B. 1070 has no preemptive effect
1. Foreign nations should not have the ability to invalidate a state law by simply
criticizing it
F. S.B. 1070 poses no disuniformity concerns
1. The fear that all fifty states will adopt their own immigration enforcement rules on
top of federal law is unfounded—in fact, federal immigration enforcement has failed
Arizona in many ways
2. Arizona is not attempting to create its own immigration policy, rather it hopes to go
the extra mile in ensuring that its law closely mirrors federal law
 Respondents’ Arguments in opposition to S.B. 10706
A. The court of appeals correctly held that the challenged provisions are not permissible
cooperative enforcement measures
1. The INA controls immigration regulations
a. Role of foreign policy
2. The INA incorporates principles of cooperative enforcement measures subject
to limitations and without interfering with the authority and discretion of the
4
8 U.S.C. § 1357(g)(10) states that “[n]othing in this subsection shall be construed to require agreement under this
subsection in order for any officer or employer of a State or political subdivision of a State (A) to communicate with Attorney
General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not
lawfully present in the United States; or (B) otherwise to cooperate with the Attorney General in the identification,
apprehension, detention, or removal of aliens not lawfully present in the United States.”
5 Chamber of Commerce of U.S. v. Whiting, 131 S.Ct. 1968 2011
6 State of Arizona v. United States of America, 2011 WL 5548708 (U.S.)
federal government in enforcing immigration
a. Federal law expressly provides for state and local officials to cooperate
in the enforcement of federal immigration
b. Federal law provides that a state may enter into a written agreement to allow
its officers to carry out immigration-enforcement functions subject to the
discretion and supervision of the federal government
c. Federal law provides that state and local law enforcement may cooperate with
immigration-enforcement functions without a formal agreement
3. Criminal provisions of S.B. 1070 are not “cooperative” with federal law as they impose
criminal punishment on conduct that federal law does not criminalize
4. Stop and arrest provisions
a. Section 2, which imposes a mandatory immigration status check by state
officers, is not “cooperative” with federal law because it strips officers of the
ability to exercise discretion, which cannot be reconciled with INA policies of
responsibility and discretion
b. Section 6, which allows officers to make warrantless arrests of those whom
they have suspicion of being unlawfully present, is not “cooperative” in that
it allows for second-guessing of federal enforcement priorities
B. Affirming the preliminary injunction against Section 6 did not create any circuit conflict
a. The Tenth Circuit ruling in United States v. Vasquez-Alvarez7
i. The Tenth Circuit was faced with the question of whether state officers,
when given the invitation to cooperate, were disabled from doing so by
federal law—this is not the concern posed by Arizona
ii. Court found an unexceptional example of cooperation between federal and state
officers during an apparent drug transaction and held that the INA did not
prohibit the arrest by the state officer
C. Taking up these issues before any other court of appeals addresses them would be
premature
a. It is important for other courts of appeals to address these preemption issues, which
will likely lead to a consensus
7
United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999)