The Arizona law contained an immigration status check provision that required local law enforcement to check with ICE to determine a person's status where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States after a person has been the subject of "a lawful stop, detention or arrest." This was the only provision of the Arizona law that the Court upheld today, noting that Arizona's law provided that law enforcement officers were prohibited from considering the person's race or national origin in enforcing it. Under existing agreements with state and local governments, ICE officials already agree to check a person's immigration status after they are taken into the legal custody of state or local law enforcement officials. If ICE determines that further action is warranted, it will request the state or local law enforcement agency to place a hold on the individual's release in order for custody of such detained persons to be transferred to ICE officials for further processing in accordance with federal law, a process that is supposed to occur within 48 hours. No sooner had today's decision been handed down than the Department of Homeland Security signaled that it would no longer honor its 287(g) agreement with Arizona officials, a move that could render that provision of the law meaningless.
Federal preemption in the area of immigration enforcement resulted in the Court striking down three major provisions of Arizona's law as unconstitutional, including:
- A provision making it a crime not to carry valid immigration documents establishing a person's lawful presence in the country.
- A provision making it a crime to apply for a job in Arizona unless a person has valid documents establishing their right to accept employment in the United States.
- A provision allowing warrantless arrests of persons who state and local law enforcement officials have probable cause to believe has committed an offense that would cause the person to be removable from the country.
Last year, the Supreme Court upheld a separate Arizona law that requires employers within the state to participate in E-Verify, a program that allows the federal government to confirm that a person applying to accept employment is legally authorized to do so. That state law penalizes non-complying businesses with the loss of business licenses. Indiana's immigration enforcement law subjects Indiana employers to tax penalties if they employ aliens lacking employment authorization unless the employers utilize E-Verify to determine the employee's status. Indiana's law also requires all state and local government agencies to utilize E-Verify, as well as businesses that contract with state or local agencies. Indiana's law also created new crimes for false identity statements and for persons engaged in trafficking of illegal aliens. The fate of these provisions of Indiana's immigration enforcement law is less clear after today's sweeping ruling recognizing federal preemption in immigration enforcement