Attorney General Marty J. Jackley announced today that the United States Supreme Court's ruling striking provisions of the Arizona immigration law does not affect existing South Dakota law or enforcement efforts.
"While a state should be able to extend its enforcement efforts when federal authorities fail to respond, the Supreme Court has fortunately rejected the federal government's dangerous position 'that the power to regulate immigration is vested exclusively in the federal government'," Jackley said. "South Dakota presently enjoys and will strive to continue our tradition of cooperative immigration enforcement with our local federal partners, which is supported by the language and directive of today's Arizona decision."
In July 2010, the federal government filed suit challenging Arizona's new law governing state immigration enforcement. At this time, South Dakota joined several states in a capacity as amicus curiae, or friend of the Court. South Dakota joined the amicus curiae state attorneys generals primarily to protect existing South Dakota cooperative law enforcement efforts to ensure public safety, and also to support a state extending its enforcement efforts when federal authorities fail to appropriately respond.
Significantly, throughout the litigation, the federal courts have rejected the federal government's argument "that the power to regulate immigration is vested exclusively in the federal government."
It has been and continues to be recognized even after this Supreme Court decision that federal immigration law also envisions certain areas of cooperation in immigration enforcement among the federal government and state and local governments.
In the Arizona decision, the United States Supreme Court recognized that the Supremacy Clause gives Congress the power to preempt state law, and that state law must give way to federal law in at least two other circumstances.
First, states are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance.
Second, state laws are preempted when they conflict with federal law, including when they stand "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
Although the Arizona decision sets forth that federal law specifies limited circumstances in which state officers may perform an immigration officer's functions, it clearly recognized that federal law permits state officers to "cooperate with the attorney general in the identification, apprehension, detention or removal of aliens not lawfully present in the United States."
The Arizona decision went on to recognize that consultation between federal and state officials is an important feature of the immigration system, and that Congress has encouraged the sharing of information about possible immigration violations between state and federal authorities.
With respect to potential future South Dakota legislative action, the Arizona decision directed that if a state law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision would likely survive federal preemption.
At least absent some showing that it has other consequences that are adverse to federal law and its objectives.
However, the Supreme Court warned that this opinion does not foreclose other preemption and constitutional challenges to state law as interpreted and applied after it goes into effect.