Arizona v. US and Obama's Deferred Action Policy Commentary
Arizona v. US and Obama's Deferred Action Policy
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JURIST Guest Columnist Geoffrey Hoffman of the University of Houston Law Center says that the Supreme Court’s holding in Arizona v. US serves as a strong reminder of the executive branch’s power to create and enforce a coherent, and ideally compassionate, immigration policy…

The Supreme Court’s recent decision in Arizona v. US has been championed by both sides of the debate. On the one hand, the federal government certainly comes away from the litigation with a stronger position, having been vindicated. The Supremacy Clause trumps the efforts of states to create a patchwork of individual immigration enforcement schemes. On the other hand, the State of Arizona can point to section 2(B) of SB 1070 [PDF] (the bill that was challenged in the case), concerning requests for information about immigration status after lawful stops, which was held to not be preempted by the federal scheme of enforcement. What has not been reported is how much the decision supports Obama’s new policy on deferred action for DREAMers, not just through the general tenor of the majority’s decision but, more importantly, through specific language.

In a most telling passage from the decision by Justice Anthony Kennedy, “college students” are mentioned as an example of a class of persons who might not be targeted for removal. In analyzing whether section 6 of SB 1070, the “warrantless arrest” provision, was preempted, Kennedy remarked that “state authority could be exercised [under section 6] without any input from the Federal Government about whether an arrest is warranted in a particular case.” The next sentence hints directly at the propriety of deferred action decisions by federal immigration officials: “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.” Kennedy’s decision is clear: a system where state officials could determine federal enforcement policy was not one that Congress envisioned.

Importantly, the framework for the entire analysis of the preemption arguments in Kennedy’s opinion is preceded by an extended discussion of “discretion.” In a bold statement, the majority opined that: “Discretion in the enforcement of immigration law embraces immediate human concerns.” The Court recognized that the federal removal system provides the “broad discretion” exercised by immigration officials. In a nod to the prosecutorial policy memos of US Immigration and Customs Enforcement (ICE) director John Morton, the Court noted that such discretion was not limited to the merits phase of proceedings but also in deciding whether to “pursue removal at all.” Later, the opinion cites a June 17, 2011 policy memorandum [PDF] from the ICE laying out factors for making decision about prosecutorial discretion in the analysis of section 6.

With regard to section 3 of SB 1070, relating to the proposed creation of a new state law penalty for failure to register, the majority opinion held that such a scheme would diminish the federal government’s control over enforcement and detract from the scheme created by Congress. Similarly, section 5(C), relating to proposed state law penalties for employment, was preempted in part because of the “comprehensive [federal] framework” which does not impose federal criminal sanctions on the employee side.

The decision of Kennedy is important not just for the recognition of the overriding interest and extensive structure of the federal scheme, but because of its nuanced understanding of what it means to be undocumented in the US. In a passage that echoes back to the 1982 decision in Plyler v. Doe, recognizing the possibility in limited cases of an “inchoate federal permission to remain,” Kennedy explicitly noted that “[a]s a general rule, it is not a crime for a removable alien to remain in the United States” (citing INS v. Lopez-Mendoza). The majority’s opinion was clear in recognizing a point which is all-too-often forgotten or missed in debates about immigration: many undocumented immigrants may have legitimate claims to remain in the United States, such as asylum, adjustment of status or cancellation of removal.

The final clue pointing to support for the new deferred action policy is section V of the opinion. In this section, the Court announced: “Immigration policy shapes the destiny of the Nation.” Notice that the Court did not say “immigration laws” or “immigration enforcement” shapes the destiny of the nation. Instead, the word “policy” is consciously and deliberately chosen. This last section of the decision, which does not really add anything to the preemption analysis, is considered “dicta” but it may turn out to be far more important and prophetic than the Court’s legal holdings on SB 1070. In this section, the Court reiterates that the federal government has “significant power” to regulate immigration. The Court concludes with an urgent reminder that “with power comes responsibility.”

This reminder to exercise power responsibly is a good one. The implications of the majority’s final section should not be lost or overshadowed by the detailed legal analysis preceding it. More importantly, the Court hinted at something further: that our civic debate must be grounded in a “searching, thoughtful, rational civic discourse.” I am hopeful that this decision is fully utilized for what it actually stands for: embracing the executive’s power to fashion an intelligent and targeted approach to immigration enforcement. There should be no doubt that the president’s power to do just that was the real holding of Arizona v. US. I am hopeful too that the new deferred action policy from Obama is just the beginning of a more sophisticated understanding of what it means to be undocumented, a more intelligent enforcement of our immigration laws and a new, thoughtful debate about immigration reform.

Geoffrey Hoffman is a Clinical Associate Professor and Faculty Supervisor of the University of Houston Law Center’s Immigration Clinic. He has published articles on international law, international human rights, and racial profiling in the Nova Law Review and Dalhousie Law Review as well as in the Loyola Journal of International and Comparative Law and the New York Law Journal.

Suggested citation: Geoffrey Hoffman, Arizona v US and Obama’s Deferred Action Policy for DREAMers, JURIST – Forum, July 27, 2012,

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