The Obama Administration filed a challenge of the Arizona immigration law in a move that comes with great legal and political risks. As noted in a recent column, the Arizona law remains quite popular around the country and the Administration will be in the unenviable position of arguing that increased enforcement conflicts with its own policies. Legally, the Justice Department will have to make out a case for implied preemption.
As expected, the Justice Department is arguing that there is no room for state enforcement in this federally controlled area. The Justice Department wrote that “[i]n
our constitutional system, the federal government has pre-eminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests.”
The Justice Department is also seeking an injunction which will expedite review. In such a request, the Justice Department must show that it is likely to prevail on the merits. The early challenge by the Justice Department indicates 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 conflict 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.
The complaint states that increased enforcement by Arizona would frustrate federal policies:
The United States understands the State of Arizona’s legitimate concerns about illegal immigration, and has undertaken significant efforts to secure our nation’s borders. The federal government, moreover, welcomes cooperative efforts by states and localities to aid in the enforcement of the nation’s immigration laws. But the United States Constitution forbids Arizona from supplanting the federal government’s immigration regime with its own state-specific immigration policy – a policy that, in purpose and effect, interferes with the numerous interests the federal government must balance when enforcing and administering the immigration laws and disrupts the balance actually established by the federal government. Accordingly, S.B. 1070 is invalid under the Supremacy Clause of the United States Constitution and must be struck down.
Notably, the complaint emphasizes that federal policy is often not to enforce immigration laws or at least not to deport. It refers to Arizona’s effort to arrest illegal immigrants as “attrition through enforcement:”
S.B. 1070 (as amended) attempts to second guess federal policies and re-order federal priorities in the area of immigration enforcement and to directly regulate immigration and the conditions of an alien’s entry and presence in the United States despite the fact that those subjects are federal domains and do not involve any legitimate state interest. Arizona’s adoption of a maximal “attrition through enforcement” policy disrupts the national enforcement regime set forth in the INA and reflected in federal immigration enforcement policy and practice, including the federal government’s prioritization of enforcement against dangerous aliens. S.B. 1070 also interferes with U.S. foreign affairs priorities and rejects any concern for humanitarian interests or broader security objectives, and will thus harm a range of U.S. interests.
The Justice Department is certainly correct that it has the power not to deport and has various options in combating illegal immigration. However, simply because an illegal immigrants is handed over to the federal government by a state does not mean that the federal government has to deport them. It would force the federal government to acknowledge such non-enforcement.
Here is a copy of the complaint: 070610_AZlawsuit
Source: Yahoo.
Tony C I’m trying to find reference or links to this statement.
The Supreme Court has already ruled that you don’t have to carry an ID or any proof of citizenship on you while in public.
Can you help? When was this?
Also if an officer regardless of status ask any questions of you you do not wish to answer, try this.
I have the right to remain silent, anything I say can and will be used against me in court. I do not wish to answer any more of your questions. Now will you get arrested for interfering in an official investigation? I don’t know but it is your right.
Tony, kinda. The way the law is set up, an infraction has to take place prior to any questions of citizenship.
In other words a police officer is not going to walk up to the little old lady at the ice cream shop with her grandchildren only to be asked are you a citizen. With that said I’m sure the tactic of, Do you know why I pulled you over today? Answer, your tail light is out, by the way are you a citizen will occur.
Ediberto Roman, a professor of law at Florida International University, goes even farther. “It’s pretext to try to suggest that there is no discriminatory purpose,” he told us. “Given that there is a lack of any other basis in terms of how they’re going to enforce it, it’s pretty clear that we’re looking to focus on a particular target group.”
Though the law only allows officials to ask for proof of citizenship in the case of “legal stop, detention or arrest,” this… can include those who are detained as victims of or witnesses to a crime, or people accused of violating local ordinances like noise laws or loitering laws. Roman is concerned that police will be more likely to both stop and to question those who they think look like immigrants. “The legislature was pretty careful in following criminal procedure notions, but it’s the discretion in how the law enforcement will use criminal procedure [that] is how the racial profiling comes into play,” he said.
http://www.mediaite.com/tv/this-week-panel-the-good-and-bad-about-arizonas-immigration-and-racial-profiling-and/
Bdaman at 4:01 pm
“AY you comment to me at 3:49. Prior to that and had not commented on this thread.
Are you anticipating or constipating”
I think you have answered it yourself.
@BDAMAN: ???
Are you trying to make a point in response to my statement?
I can’t tell. MY POINT was that law enforcement cannot tell whether a person is a citizen or not; there is no basis BESIDES physical appearance profiling that can conceivably let them judge whether somebody is legally present or not. We prohibit this basis of suspicion because a person’s appearance is either involuntary (like race or gender) or a fundamental right of self-expression (long hair, baggy pants, tattoos, etc.)
Having a government agent (a policeman) discriminate based on appearance leads directly to a chilling effect on a Constitutional right (freedom of speech) to dress as you wish. It violates a fundamental right to be treated equally under the law. Is that something you understand, or disagree with?
As far as customs is concerned: You subject yourself to that voluntarily as a condition of entering a country; your own or a foreign country. The Supreme Court has already ruled that you don’t have to carry an ID or any proof of citizenship on you while in public. It is legal to walk in the park without your wallet on you. Even if you are Hispanic.
Nal so what you are saying is it’s fair for them to cross illegally while literally hundreds of thousands wait to do it legally for years.
” So you went to Cancun. I’m trying to generate some interest.”
Interest in my travels our amongst your friends or family?
If it is my travels, then yes, as well as a many number of other countries that have more stringent standards for entering their country than what the U.S. does.
These people don’t use a U.S. Port of Entry and have to go threw the same things I do and I am a citizen.
Yeah, your entry is so difficult and their entry it so easy. It just isn’t fair.
So you went to Cancun. I’m trying to generate some interest.
Popular?
Very few, .00001 percent have even read it. Like Health care.
So the populism is reaction to what someone said or what someone said someone said about it.
This is American civics.
It is like a nightmare food fight.
Customs Procedures at Cancun Airport
During the inbound flight, you will receive and need to fill out a customs form (Hacienda). After passing through immigration, you collect your bags and proceed to the exit. You will hand the form to the customs agent and press the button on what looks like a traffic light.
A green light means “go” and red means “inspection” in which case, officials perform a quick inspection.
http://cancun.travel/en/general-information/airport-and-customs/
Thats the problem. These people don’t use a U.S. Port of Entry and have to go threw the same things I do and I am a citizen.
My remarks are limited to proving citizenship at a US port of entry versus on a street in the US. I have no opinion regarding your airport adventures.
At a US point of entry, since the entrant is arriving from another country, it is reasonable to be suspicious that the entrant may not be a citizen. On a street in the US, no such reasonable suspicion exists.
Nal, have you ever seen the traditional stop light at an airport prior to going threw customs? You know, the one as you approach if it’s green you may continue and if it’s red you go threw extra scrutiny. It’s done on an individual basis.
Hows that for reasonable suspicion.
Nal every time I’ve been to or from. I’m always asked what is your reason for visiting _Blank___________.
Some of the time it is followed with more questions. Some times those questions bring up reasonable suspicion even though my documents are in order. I am then pulled to the side where more questions and some times a supplemental search is preformed.
Whats the difference on the street vs. the airport or a port of entry on the border.
Resonable suspicion.
AY you comment to me at 3:49. Prior to that and had not commented on this thread.
Are you anticipating or constipating?
“A routine check of citizenship after arrest seems prudent, just like a routine check of outstanding warrants or a check against fingerprints found at crime scenes. But I don’t see on what grounds an officer can demand anything of anybody without evidence of a crime being committed.”
Thats the whole point, no officer is going to randomly ask people to prove they are a citizen. Besides whether you cross legally or illegally either you are or your not a citizen of the United States.
You are free to leave the country at anytime. You are free to return with proper identification such as a U.S. Passport. Anybody that has been out of the country knows they examine your information and either you will be free to enter the country or customs or immigration start asking more questions and you could be denied, detained and or sent back if it doesn’t check out. Try flying to a foreign country with out a passport. Then when they send you back to the U.S. good luck getting in with out one.
Whats the difference on the street vs. the airport or a port of entry on the border. Either you are a U.S. citizen or your not.
WOW, Brennan’s decision does not surprise me in the least. I agree with the professor on this issue before the new implementation of the Federal Scheme. I agree that there can be dual implementation but the supremacy clause, preemption should apply as does in Bankruptcy. Could you imagine what the immigrations laws would look like state to State, if this were the case.
Would Thomas Jefferson’s family ever gotten back Monticello if it had not been for family friends? It was seized because he could not pay his debts on land speculation and the debt was due. Unfortunately it takes a great person or major general harm to all before someone takes action. This is why the Bankruptcy courts are separate from the US District Court(s).
I hope that the US does win on this front.
Bdaman,
I see the pilferage has begun again with the sojourner of truths return. When ya been, the G-20 summit? Getting retrained in another field of expertise? Lee Atwaters dead so Karl Rove must have been the training mentor.
What grade did you get in How to Attack without Repercussions, Slander without Malice or How to Defame and Rename?
Do you wear the same type of sheet and hood or does yours glitter with shiny stars?
I think you are right, Nal. Obama’s re-election depends on a huge turnout of people of color.
We already have a Supreme Court decision saying that citizens can be in public without any ID. Given that, and our First Amemdment freedom to dress as we like, speak in any language we like and behave as we like, and given that officers cannot discriminate based on race, or gender, how can any officer ever suspect that any given individual is NOT an American citizen exercising their Constitutional rights?
A routine check of citizenship after arrest seems prudent, just like a routine check of outstanding warrants or a check against fingerprints found at crime scenes. But I don’t see on what grounds an officer can demand anything of anybody without evidence of a crime being committed.
This could be a strictly political move. It will garner a lot of Hispanic voter support.