The Justice Department is reportedly moving toward challenging the Arizona law. If true, it would be a rare case where the United States directly challenges a state law as opposed to waiting to intervene as an amicus. Given the increasing number of cities and citizens planning to challenge the law, there is no paucity of plaintiffs requiring such a challenge. I will be discussing this issue tonight on Countdown.

An early challenge by the Justice Department would indicate that it is not going to wait to create an “as applied” challenge based on actual enforcement. That would make it more likely that the challenge would be based on preemption. That would be a tough challenge in my view. I do not see in the legislative history or language any congressional intent to preempt state laws to block concurrent jurisdiction. That would leave an implied preemption argument under the Supremacy Clause of Article VI.

The Court does not presume such preemption, which would have to be based on an inherent conflicts between federal and state law. Here the state is claiming to be assisting the federal government by rounding up illegal aliens.

In De Canas v. Bica, 424 U.S. 351 (1976), the Court ruled unanimously that California could exercise such concurrent jurisdiction. At issue was section 2805(a), stating that “no employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” In a decision written by liberal icon William Brennan, the Court rejected preemption under the Supremacy Clause, Art. VI, cl. 2, of the U.S. Constitution, by the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., the comprehensive federal statutory scheme for regulation of immigration and naturalization. This was obviously, however, before the current federal scheme was put into place.

Secretary Napolitano told the Judiciary Committee that the law “will detract from and siphon resources that we need to focus on those in the country illegally who are committing the most serious crimes.” That is not enough of a preemption argument — we do not want to arrest people under the law. It will be hard to argue that arresting federal violators interferes with federal enforcement unless the policy is non-enforcement.

The law is being characterized as a separate or alternative state enforcement system as opposed to a concurrent enforcement scheme. That is far from obvious from the language which was written to track the federal law. Unless preempted, the assumption is that the state can exercise concurrent jurisdiction. As the Court stated in lyer v. Doe, 457 U.S. 202, 228 (1982),

“Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.”

This is why I have been more interested in the reasonable suspicion provision. On its face, it is hard to see how that standard could be applied constitutionally except when officers determine status at the time of another criminal violation. The problem is that the strongest challenge to that provision would be based on actual enforcement — which various groups clearly do not want to wait for. Courts may view an effort to challenge the likely application of the reasonable suspicion provision as a demand for an “advisory opinion” — which courts do not render given the requirement of an actual “case or controversy” under Article III.