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.