Did the Supreme Court just quietly overrule Arizona v. United States? An Analysis of the Supreme Court’s recent order in United States v. Texas.

Blog Post | 112 KY. L. J. ONLINE | April 9, 2024

Did the Supreme Court just quietly overrule Arizona v. United States? An Analysis of the Supreme Court’s recent order in United States v. Texas.

By: Drayden Burton, Staff Editor, Vol. 112 

Just under twelve years ago, the Supreme Court handed down a decision in Arizona v. United States[1] that would become the preeminent case on federal preemption of state law.[2] On March 18th, 2024, the Supreme Court entered an order that, on its face, seemed to virtually eviscerate Arizona without a written opinion of the Court.[3]

In Arizona, the state passed S.B. 1070 with the purpose of discouraging and deterring unlawful entry and presence of illegal immigrants within the state. [4] The Court took issue with many of the sections of S.B. 1070, but explicitly held three specific sections as wholly preempted by federal law: Section 3, which created a state criminal offense for failure to carry an alien registration document,[5] Section 5C, which created a new criminal offense for applying to work as an illegal alien,[6] and Section 6, which allowed state officers to arrest people suspected of committing an offense that would make them removable from the United States without a warrant.[7] The court, per Justice Kennedy, explained that “[t]he Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.”[8] Due to this exclusive power of the federal government to regulate immigration, state law “must give way to federal law.”[9] The court also noted that state law must dissolve under the weight of federal law when state law is created that conflicts with federal law and “compliance with both federal and state regulations is a physical impossibility.”[10] Justice Kennedy emphasized the importance of uniform federal control and execution of immigration law, even when laws don’t directly conflict with federal immigration law there is still conflict in trying to enforce laws with different goals than federal law.[11] All of the Sections that the Court singled out were found to either directly conflict with a federal law or function in a manner that inhibited the overall implementation of Congress’ overall scheme in regulating immigration.[12]

A strikingly similar set of facts accompany the cases consolidated before the Court in March of 2024. In 2023, Texas passed S.B. 4, which created a state criminal offense for entering Texas illegally and would allow state judges to order aliens who entered Texas illegally to return to Mexico.[13] The law was set to go into effect on March 5th, 2024, but a Texas district judge granted an injunction preventing the enforcement of the law, reasoning that “the Supremacy Clause and Supreme Court precedent affirm that states may not exercise immigration enforcement power except as authorized by the federal government.”[14] Shortly after, the Court of Appeals for the 5th Circuit granted a temporary administrative stay on the district court’s injunction pending an application to the Supreme Court.[15] This was due to the Biden Administration requesting that the Supreme Court intervene and maintain the injunction blocking enforcement of the law until the matter could be fully resolved before the Supreme Court.[16] On March 18th, 2024, Justice Alito entered an order on behalf of the Court extending the stay and thus allowing Texas to enforce S.B. 4.[17] Justice Barrett filed a concurring opinion disagreeing with the Court’s procedural actions, while Justice Sotomayor filed a dissent joined by Justice Jackson. Justice Kagan dissented separately.[18] 

Justices Kagan and Sotomayor both cite to Arizona v. United States in their dissents.[19] They both urge the Court to remember that Arizona stands for the proposition that regulation of immigration is a wholly federal area of control, and to allow a state to pass laws that conflict with the federal scheme of implementing immigration policy is almost certainly unconstitutional.[20] Even if Texas’ argument that the regulations present within S.B. 4 do not directly conflict with federal law are found true, it is almost impossible to imagine how they do not conflict with the government’s overall scheme to regulate immigration. Under Arizona, the law would be wholly preempted in this scenario.[21]

The Court’s order in Texas v. United States will allow for Texas to enforce their own state-specific immigration laws for now, but the ultimate outcome of the case is yet to be decided. The case will work its way through the system and will eventually reach the Supreme Court for a full decision. Is this temporary order an indication that the Supreme Court is willing to upend another one of its foundational precedents?

[1] Arizona v. United States, 567 U.S. 387 (2012).

[3] Texas v. United States, No. 23A814 (2024) (order extending temporary stay).

[4] Arizona, 567 U.S. at 393.

[5] Id. at 400.

[6] Id. at 403.

[7] Id. at 406.

[8] Id. at 394.

[9] Id. at 399.

[10] Id. (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1962)).

[11] Id. at 416.

[12] Id.

[13] S.B. 4, 88th Leg., 4th Sess. (Tex. 2023).

[14] United States v. Texas, No. 24-50149, 2024 WL 909612, at *1 (5th Cir. Mar. 2, 2024), vacated, No. 23A814 (U.S. Mar. 19, 2024).

[15] Id.

[16] Amy Howe, Supreme Court allows Texas to enforce state deportation law, SCOTUSblog (Mar. 19, 2024, 3:28 PM), https://www.scotusblog.com/2024/03/supreme-court-allows-texas-to-enforce-state-deportation-law/.

[17] Texas v. United States, No. 23A814 (2024) (order extending temporary stay).

[18] Id.

[19] Id. (J. Kagan, dissenting); Id. (J. Sotomayor, dissenting).

[20]Texas v. United States, No. 23A814 (2024) (J. Sotomayor, dissenting).

[21] Arizona v. United States, 567 U.S. 387, 416 (2012).