Justice Kennedy first addressed Section 3 of the Arizona law -- a provision that created a new state misdemeanor for the "willful failure to complete or carry an alien registration document" in violation of a federal law. He ruled that the state provision was preempted ("precluded" is a good lay word, by the way, to describe the effect of "preemption") by federal law. "Were Section 3 to come into force," Justice Kennedy wrote, "the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies."
Then the Court moved on to Section 5(c) of the Arizona law -- a provision that created a new state misdemeanor for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor." Justice Kennedy found this provision preempted by federal law even more clearly than Section 3. Basing his conclusion upon the Immigration Reform and Control Act of 1986, a Reagan era federal statute, Justice Kennedy wrote:
The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. A commission established by Congress to study immigration policy and to make recommendations concluded these penalties would be "unnecessary and unworkable." (citations omitted)
Because Section 5(c) of Arizona's law directly conflicted with that federal judgment, Justice Kennedy wrote, the state law had to give way to the "careful balance" the Congress had struck. (As an aside: don't you think that anxious supporters of the Patient Protection and Affordable Care Act would love to have Justice Kennedy similarly defer to the "careful balance" established by federal lawmakers when they enacted the new federal health care law in March 2010?)
Next, Justice Kennedy moved on to Section 6 of the Arizona law -- a provision that a state officer "without a warrant, may arrest a person if the officer has probable cause to believe... [the person] has committed any public offense that makes [him] removable from the United States." This provision was similarly preempted by Congress, Justice Kennedy wrote, because it purported to give state officials more power and authority over unlawful immigrants than "trained federal immigration officers have." Justice Kennedy wrote:
This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer
Which brings us to Section 2(B) of the Arizona law -- a provision that "requires state officers to make a 'reasonable attempt ... to determine the immigration status' of any person they stop, detain or arrest on some other legitimate basis if 'reasonable suspicion exists that the person is an alien and is unlawfully present in the United States." It is this provision -- and the Court's interpretation of it -- which generated a great deal of confusion early Monday morning between and among news organizations.