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The provision of Arizona’s anti-illegal immigration law requiring police officers to make a “reasonable attempt . . . to determine the immigration status” of persons stopped, detained or arrested when they have reasonable suspicion that the person is an alien “unlawfully present in the United States” is constitutional, but the other three provisions of S.B. 1070 are preempted by federal law.

Arizona enacted statute S.B. 1070, aimed at discouraging the presence of illegal aliens. Among other provisions, S.B. 1070 made it a crime for unauthorized aliens to fail to obey federal alien registrations requirements (§3) and to seek or perform work (§5(C)). S.B. 1070 also allowed officers to arrest, without a warrant, those they believe have committed an offense that makes the arrestee deportable (§6). Finally, S.B. 1070 required police officers to make a “reasonable attempt . . . to determine the immigration status” of persons stopped, detained or arrested when they had reasonable suspicion that the person was an alien “unlawfully present in the United States” (§2(B)). The United States sought to enjoin S. B. 1070 on grounds that the four provisions above were preempted by federal law.

The Ninth Circuit Court of Appeals affirmed a preliminary injunction issued by the U.S. District Court, barring the four provisions.

The Supreme Court ruled that §3 duplicated federal law and is therefore preempted as Congress meant to exclude the States from the area of alien registration. Further, the Supreme Court held that because §5(C) criminalized actions the Federal Government did not intend to be crimes, that §5(C) was an obstacle to the regulatory format chosen by Congress as embodied in the Immigration Reform and Control Act and was thus also preempted. Similarly, the Supreme Court found that since Congress has already established parameters for warrantless arrests of aliens, §6 is preempted as well. However, the Supreme Court found there is currently no evidence that §2(B) is at odds with federal immigration law and upheld it as constitutional.