Report on the Constitutionality of Arizona Immigration Law S.B. 1070

Executive Summary:

The Committee on Immigration and Nationality Law of the New York City Bar Association has examined the Arizona Revised Statutes known as “SB 1070 Anti-Immigration Act,” as amended by HB 2162, and concluded that its core sections are unconstitutional in whole or in part under the Supremacy Clause of the United States Constitution and violate the First, Fourth and Fourteenth Amendments. The body of this Report sets forth the Committee’s analysis, and provides an overview of the Arizona legislation in the broader context of needed federal immigration reform. program for workers who are already here. The vehemence of efforts such as Arizona’s to formulate legislative policies which are, in their essence, anti-immigrant, runs the risk of coarsening the dialogue which must support and eventually lead to a rational federal program.

The substantive content of these state statutes, as manifested by SB 1070, promotes racial profiling while infringing upon the exclusive role of the federal government to regulate immigration. Our analysis shows that the Arizona statute is preempted under the Supremacy Clause for several reasons which are set out below, but chiefly because it adopts a parallel immigration enforcement program to the one maintained by the federal government through the pretext of conflating civil and criminal provisions of the Immigration and Nationality Act. At the same time, the statute fails on due process and Fourth Amendment grounds, in that it offers insufficient guidance to officials administering it as to when “reasonable suspicions” of unlawful presence exist, and will target the foreign-born. The anti-work solicitation provisions violate the First Amendment. We urge New York and other states to resist emulating Arizona’s SB 1070 because of these grave constitutional concerns and we urge instead that the federal government undertake necessary, comprehensive immigration reform. Failure to enact comprehensive immigration reform is providing the fuel for states to overreach in this area of exclusive federal regulation.

Link to entire report.