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The District Court issued a preliminary injunction preventing four of its provisions from taking effect. has committed any public offense that makes the person removable from the United States"; and §2(B) requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person's immigration status with the Federal Government. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security, is responsible for identifying, apprehending, and removing illegal aliens. A statute may contain an express preemption provision, see, , 563 U. ___, ___, but state law must also give way to federal law in at least two other circumstances. If accepted, the United States' pre-emption argument would give the Executive unprecedented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations. It is well established that state and local officers generally have authority to make stops and arrests for violations of federal criminal laws. 3d 1037 (1999) (en banc) (holding that "federal law does not preclude local enforcement of the criminal provisions" of federal immigration law). More importantly, no federal statute casts doubt on this authority. §1103(a)(10) (providing for the extension of "any" immigration enforcement authority to state and local officers in the event of an "actual or imminent mass influx of aliens arriving off the coast"); §1252c(a) (providing authority to arrest criminal aliens who had illegally reentered the country but only after consultation with the Federal Government); §1324(c) (providing authority to make arrests for transporting and harboring certain aliens).Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor; §5(C) makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; §6 authorizes state and local officers to arrest without a warrant a person "the officer has probable cause to believe . The Ninth Circuit affirmed, agreeing that the United States had established a likelihood of success on its preemption claims. The Federal Government's broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to "establish an uniform Rule of Naturalization," Art. 4, and on its inherent sovereign power to control and conduct foreign relations, see , 458 U. It also operates the Law Enforcement Support Center, which provides immigration status information to federal, state, and local officials around the clock. First, States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. This argument, to say the least, is fundamentally at odds with our federal system. In the situations that seem most likely to occur, enforcement of §2(B) will present familiar Fourth Amendment questions. And the United States, consistent with the position long taken by the Office of Legal Counsel (OLC) in the Department of Justice, does not contend otherwise. 33; see also Memorandum from OLC to the Attorney General (Apr. 268-273; Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. To be sure, there are a handful of statutes that purport to authorize state and local officers to make immigration-related arrests in 8 U. But a grant of federal arrest authority in some cases does not manifest a clear congressional intent to displace the States' police powers in all other cases. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. The President said at a news conference that the new program is "the right thing to do" in light of Congress's failure to pass the Administration's proposed revision of the Immigration enforcing applications of the Immigration Act that the President declines to enforce boggles the mind. 1070 authorizes Arizona law enforcement officers to make warrantless arrests when there is probable cause to believe that an arrestee has committed a public offense that renders him removable under federal immigration law. 581, 589 (1948) (holding that state law determines the validity of a warrantless arrest for a violation of federal law "in the absence of an applicable federal statute"). Unlike the Court, I would not hold that Congress pre-empted the field of enforcing those standards. Here, nothing in the text of the relevant federal statutes indicates that Congress intended enforcement of its registration requirements to be exclusively the province of the Federal Government. Nothing in the relevant federal statutes state and local officers to consider the Federal Government's priorities before requesting verification of a person's immigration status. In fact, §1373(c) dictates that the Federal Government "shall respond" to any inquiry seeking verification of immigration status, and that command applies whether or not the requesting officer has bothered to consider federal priorities. The United States sought to enjoin the law as preempted. Among other things, federal law specifies categories of aliens who are ineligible to be admitted to the United States, 8 U. Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all. The Supremacy Clause gives Congress the power to preempt state law. Intent can be inferred from a framework of regulation "so pervasive . If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. that federal immigration law does not pre-empt any of the challenged provisions of S. , J., concurring in judgment) ("Pre-emption analysis should not be a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict" (brackets; internal quotation marks omitted)). Among those factors is "the agency's civil immigration enforcement priorities," , which change from administration to administration. 1070 was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the State. §1182; requires aliens to register with the Federal Government and to carry proof of status, §§1304(e), 1306(a); imposes sanctions on employers who hire unauthorized workers, §1324a; and specifies which aliens may be removed and the procedures for doing so, see §1227. that Congress left no room for the States to supplement it" or where a "federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." , 331 U. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. I reach that conclusion, however, for the simple reason that there is no conflict between the "ordinary meanin[g]" of the relevant federal laws and that of the four provisions of Arizona law at issue here. 1070 provides that, when Arizona law enforcement officers reasonably suspect that a person they have lawfully stopped, detained, or arrested is unlawfully present, "a reasonable attempt shall be made, when practicable, to determine the immigration status of the person" pursuant to the verification procedure established by Congress in 8 U. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities"). If no federal warrant has been issued, these officers have more limited authority. (a) The state provision has three limitations: A detainee is presumed not to be an illegal alien if he or she provides a valid Arizona driver's license or similar identification; officers may not consider race, color, or national origin "except to the extent permitted by the United States [and] Arizona Constitution[s]"; and §2(B) must be "implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens." P. (b) This Court finds unpersuasive the argument that, even with those limits, §2(B) must be held preempted at this stage. Consultation between federal and state officials is an important feature of the immigration system. Arizona bears the brunt of the country's illegal immigration problem. Enforcement discretion thus lies with the Federal Government, not with Arizona. The United States' attack on §2(B) is quite remarkable. I am aware of no decision of this Court recognizing that mere policy can have pre-emptive force. Like most law enforcement agencies, ICE does not set out inflexible rules for its officers to follow.
In a state alien-registration program was struck down on the ground that Congress intended its "complete" federal registration plan to be a "single integrated and all-embracing system." 312 U. That scheme did not allow the States to "curtail or complement" federal law or "enforce additional or auxiliary regulations." , at 66-67. (b) Section 5(C)'s criminal penalty stands as an obstacle to the federal regulatory system. §§1324a(a)(1)(A), (a)(2), and requires employers to verify prospective employees' employment authorization status, §§1324a(a)(1)(B), (b). The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees. (c) By authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable, §6 too creates an obstacle to federal law. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States' borders unprotected against immigrants whom those laws would exclude. Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws? Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. And, federal law imposes an affirmative obligation on federal officials to respond to a State's immigration-related inquiries. Nothing in that statute indicates that such cooperation requires a prior "request, approval, or other instruction from the Federal Government." at 18 (majority opinion). But here, Arizona is merely seeking to enforce the very registration requirements that Congress created. Section 5(C) operates only on individuals whom Congress has already declared ineligible to work in the United States. But it leaves States free to impose criminal sanctions on the employees themselves. In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. How can an officer identify those persons without first inquiring about their status? (a) Section 3 intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. To address pressing issues related to the large number of aliens within its borders who do not have a lawful right to be in this country, the State of Arizona in 2010 enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act. The Court opinion's looming specter of inutterable horror--"[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations," at 10--seems to me not so horrible and even less looming. States, as sovereigns, have inherent authority to conduct arrests for violations of federal law, unless and until Congress removes that authority. Here, no federal statute purports to withdraw that authority. And, federal law expressly recognizes that state officers may "cooperate with the Attorney General" in the "apprehension" and "detention" of "aliens not lawfully present in the United States." §1357(g)(10)(B). 1070 makes it a crime under Arizona law for an unlawfully present alien to willfully fail to complete or carry an alien registration document in violation of 8 U. "[O]ur recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it." , 413 U. That Congress created a "full set of standards governing alien registration," at most holds that federal law pre-empts the States from creating additional registration requirements. 1070 prohibits unlawfully present aliens from knowingly applying for, soliciting, or performing work in Arizona. Section 3 provides that an alien who willfully fails "to complete or carry an alien registration document" in violation of 8 U. Because no federal statute requires such consideration, §2(B) does not conflict with federal law. Section 6 attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. Federal law specifies limited circumstances in which state officers may perform an immigration officer's functions. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. See Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., p. They may arrest an alien for being "in the United States in violation of any [immigration] law or regulation," for example, but only where the alien "is likely to escape before a warrant can be obtained." §1357(a)(2). It was improper to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that §2(B)'s enforcement in fact conflicts with federal immigration law and its objectives. In fact, Congress has encouraged the sharing of information about possible immigration violations. The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. The United States suggests that a state law may be pre-empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. To the contrary, it provides a list of factors to guide its officers' enforcement discretion on a case-by-case basis.
Second, state laws are preempted when they conflict with federal law, including when they stand "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." , 312 U. Arizona has moved to protect its sovereignty--not in contradiction of federal law, but in complete compliance with it. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis.
This includes instances where the Attorney General has granted that authority in a formal agreement with a state or local government. Although federal law permits state officers to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States," §1357(g)(10)(B), this does not encompass the unilateral decision to detain authorized by §6. Thousands of Arizona's estimated 400,000 illegal immigrants--including not just children but men and women under 30--are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment. 4 (June 17, 2011) ("This list is not exhaustive and no one factor is determinative.