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.
Sansabelt? Buddha, you are showing your age with that reference!
Except “intend” and “actually” are two different things, badreader.
“Lawful contact”? That simply means the officer must not be in illegal contact with the “suspect”. Which as Josh pointed out can be as simple as speaking to someone. “Lawful stop”? Means exactly the same thing. It’s perfectly lawful to stop someone to ask what time it is.
If they had wanted to assuage fears about racial profiling? They could have clearly stated the contact needed to be incident to a probable cause stop (including a concise definition of what constitutes PC), legal detention and/or legal arrest.
It’s a bullshit vague law, but it’s funny watching you try to defend it.
AY,
Sansabelt is reason #7 I don’t drink tequila.
After a good ways in to tequila FUBAR (but not to the undressed stage) sansabelt slacks not only sound like a good fashion decision, I will actively seek them out.
Arizona doesn’t clearly define a Lawful Contact but the revised version of SB 1070 has removed this wording.
The original law stated police can conduct an immigration status check during any quote “lawful contact,” if they have reasonable suspicion a person is an illegal immigrant.
It replaces “lawful contact” with “lawful stop, detention or arrest,” clarifying police may not stop people without cause.
The revised law also removes the word “solely” from the phrase “The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin.”
That’s intended to remove fears about racial profiling.
Bdaman,
“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.”
Why not? This law wouldn’t prevent that from happening. And, in fact obligates the officer to request documentation from said lady if he observes things that seem to implicate that she may be here illegally. Of course, that is after he makes lawful contact.
“Hi, Ma’am!”
Cute, can you get me a pair of those pants. I think they are sansabelts all synthetic. Yeah baby….
W=c,
Clarification.
If tequila wasn’t involved for both dog and man, it should have been.
Just so you know, both of my cats are still laughing.
Awww . . . poor bdatroll.
Having a rough first day back from vacation?
*sniff*
See, this is what happens when you totally lack credibility.
People take your drivel apart simply because they can.
Oh, wait. My bad. The word I was looking for wasn’t credibility. It was “sense”.
roflmao!
Oh Woosty truly is a cat.
A cat that like most loves nothing better than to see a dog, or better yet, a dog and a human make total fools of themselves.
If tequila wasn’t involved, it should have been.
“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.
Key word Tactic. IE. California rolling stop, you crossed the center line, didn’t use your signal prior to making a turn, following to closely.
Get the picture.”
You haven’t addressed anyone’s point at all. “Tactic” is your own “key word”; you aren’t quoting law.
“What is the meaning of, FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL Key word LAWFUL CONTACT. had it read FOR ANY CONTACT made by a law enforcement official, I think you would have a good argument. But it doesn’t.”
That’s sure to make things go down differently, isn’t it?
“I would have asked you to show ID, but since this is an illegal police encounter in the first place I legally can’t.”
“Tequila. It makes me get undressed in public. Which is good for no one.”
maybe that’s what happened to this guy…
Blouise,
It is my understanding that all of present-day Arizona was part of the Mexican State of “Vieja California” upon the Mexican independence from Spain in 1822.
The United States took possession (which means stole it) of most of Arizona at the end of the Mexican-American War in 1848.
In 1853, the land below the Gila River was acquired from Mexico in the Gadsden Purchase.
Arizona was administered as part of the Territory of New Mexico until it was organized into a separate territory on February 24, 1863.
Bdaman,
I’m afraid you’re asking the wrong person. I wouldn’t know how the courts would define lawful contact. It’s purposefully vague just so it can be implemented in any number of ways. As far as I know, almost all contact with law enforcement is legal. Don’t you think? And won’t you think it’s totally awesome once we empower… no, obligate other law enforcement officials to arrest citizens who upon the most cursory of examinations can’t provide proof of their innocence in other regards as well.
“Hello Officer, I wasn’t speeding was I?”
“No sir, I simply pulled you over to let you know your tail light was out. But, while we’re at it, this neighborhood is dangerous. Mind letting me know what you’re doing here? Can you prove to me that you’re not here to buy cocaine? No? Well, that’s alright. I’ll just take you back to the station and we’ll let ya go once we’ve sorted all this out. Maybe.”
Blouise,
You are right about Arizona, but you forgot about their favorite sheriff, Joe Arpaio!
Here’s a little background on Arizona:
1.) In 1861. Arizona, as a territory, joined the Confederacy during the Civil War by adopting an ordinance of secession.
2.) Fifty years later they delayed joining the Union so that they could do so on the 50th anniversary of having joined the Confederacy.
3.) They fought recognition of the Martin Luther King Jr. federal holiday.
4.) When put into context, this new “Show Your Papers Law” is pretty much par for the course in Arizona.
I’m not so sure about that “what you drink” analysis, AY.
There are two bottles I stay away from.
YodaMaster, for the aforementioned reason and the huge gapping holes it drills in my memory (I once knocked a guy out and didn’t remember doing it.)
And
Tequila. It makes me get undressed in public. Which is good for no one.
And three (three!) bottles I stay away from.
Codeine cough syrup. It makes me think I’ve been drinking Jager and Tequila shots. Which means I become a naked Jedi. But that’s due to allergies. Or so I was told by a Doctor of Journalism.
Now lets get down to the other items brought up, I have learned through experience once you are FUBAR it does not really matter what you drink, you just think it does because your thinking is all FUBAR’ED. But that ok, tonight I am not FUBAR. If I were, I probably would have been off of this site along time ago….I once spilled a beer on a brand new laptop….that was before they were affordable for the general public. I don’t do that no more….
rafflaw,
As Yoda taught us, it is good to annoy or is it…..
FFLEO was on Saturday or Sunday.
Bdaman,
Lets see, for years the cops used the ornament hanging from the rear view mirror as a visual obstruction. So there we have a “Lawful” traffic stop. Lets see the Sct threw it out as being too vague.
Lest we wait and see what else the boys in Blue, Black and Brown bring to you? How can we stop a Mexican at 50 yards. Oh yeah, the Mexican Sweat…..Once they have you for one thing, then they can jack you around for other things….Its a cops word against a Mexican’s right? Well, if the state won’t prosecute, we still have them on a Federal Detention hold as they can’t prove that they are here legally….
Your argument falls on deaf ears….Oh maybe because I am…