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.
LEO
I too have been an AZ resident for 34 years (this Nov). When they start taking away the business licenses of employers who employ and exploit illegals, I’ll give this some consideration. Until then I will call this bill what it is: RACIST.
I don’t care one way or the other about illegals, I care about the position this ridiculous law places legal immigrants and American citizens of Hispanic descent. Iit singles them out for special treatment. If, as you say, you’ve been in AZ as long as I have you KNOW the police (especially in Arpaio’s office) are racist and seek every opportunity to exert their racism against Hispanics. That is undeniable.
Every bad thing going on in our country right now, from the economic mess, to the high unemployment, to dead miners in KY, dead oil riggers, the environmental disaster in the Gulf and unconstitutional laws in AZ are ALL the result of the complete failure of conservative policies and politcs. It’s well past time to kick these thugs to the curb.
FF LEO,
Nal asked about you. Your thoughts have been missed.
I know you are a FF LEO, from what you have said you hold yourself to a very high standard. I think that if it were not Arizona with the possibilities of Araipos’ office having the last say before a person is detained, I probably would not have an issue with it.
If you look at it in the converse arena, that is like having Madoff being appointed Secretary of Treasury. I would guess that about 90 % of his office are not up to your standards.
Unfortunately we rarely hear about the good things that LEO’s do, nor the good things that Attorneys do. We only hear the extremes.
I recall a paper went into production that printed only “Good News” it lasted about 6 weeks. No readership. I wonder why the scandal sheets do so well. Lee Atwater used them, it was his gauge of the pulse of the nation.
Another side I read recently, Paris Hilton was arrested or detained in South Africa for possession of Weed. For some reason or another her female companion confessed to having it and it was only by mistake that Paris had it and she was the really guilty one. Case dismissed after 130$ was paid. Whats wrong with that picture?
There are good cops and bad cops and the boys of Brown, Black or Blue will honor the code.
Former Federal LEO,
When traveling through the Southwest a couple of summers ago, the grandkids and I were totally impressed by the completely solar-powered rest-stops in New Mexico. They even had the technology mounted on posters on the walls and a web site for more info. The youngest wrote a school report complete with pictures and received an A … the teacher was more impressed with the rest-stops than with the report she did on the Grand Canyon.
I am still around but do not post as much during the summer months because of limited cooling in my totally solar-powered home—my choice, since I am a frugal fellow who lives a 50s lifestyle and who tries to live as close to nature as possible. Thanks for your concern.
I am a 34-year full-time Arizona resident and I support the new ‘immigration’ law because it forced the Federal government to act on immigration. I would have no problem enforcing the law in a fair and impartial manner and the rank and file LEOs in Arizona support the law. We will just have to let the courts sort this out now and I guess it could go as far as the Supreme Court.
Professor Turley, thanks for your analysis.
The second quote in the above was taken from mespo727272 … I don’t know what happened when it posted … sorry, my dear.
” … This kind of action is PRECISELY what our Founders were fighting AGAINST and sought to prevent in our little experiment called the USA. But then, one shouldn’t expect much intelligent thought from Republicans and Conservatives. I know I don’t. …” (rcampbell)
*****************************************************************mespo727272
I think an issue not fully explored is the effect the law has on American foreign policy. We have already seen Mexico’s reaction to the Arizona statute and I suspect we’ll see more reaction if citizens of other Central American countries are unlawfully detained. States bordering other nations have no right to jeopardize overriding national interests or legitimate foreign policy goals with their own myopic statutory schemes. For this reason alone, I would overturn it and return the enforcement of immigration exclusively to the federal authorities.
==============================================================
Just for emphasis.
correction should have stated after the “Brennan Court.”
Rcampbell,
I think after the Brennan (Who I think was one of the Greatest Jurist to have ever served) the area is murky.
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 gives the states the ability to regulate concurrently.
I admit I haven’t read every post on this thread, so maybe this was covered earlier, but here’s my question:
The Supreme Court recently ruled in a gun case that federal law trumps state or city laws. Doesn’t this present an open and shut case for the AZ law being unconstitutional in it’s effort to be superio to an exclusively federal function?
I can see the add or the media spin now, White has the largest Mexican turn out ever…..
Hell thats how LBJ stayed in Power in the Senate. Give em strings to match up with the Ballot. Have knots tied to the appropriate persons name and then punch the car.
That is why no things can be taken into the ballot area and that they now have rotating ballots through out the counties…Archie Phar, the Duke of Duval county….Ask Billy Sol Estes….
It seems to be only the state of Arizona that has chosen this path so far. The governors of Texas, New Mexico and California do not seem to want to go there yet. In the latest poll Perry is tied. He cannot afford a large Hispanic turnout.
Since “law”-makers in AZ seems to think it can enact laws reserved and restricted to the federal government, one wonders when AZ will pass a state law against espionage.
I am an Arizona resident. I am thoroughly disgusted with the AZ legislature, it’s ignorance of the US Constitution and it’s (and many of my fellow Arizonans) willingness to be stupidly wrong. This kind of action is PRECISELY what our Founders were fighting AGAINST and sought to prevent in our little experiment called the USA. But then, one shouldn’t expect much intelligent thought from Republicans and Conservatives. I know I don’t.
mespo,
If memory serves me correctly after a few years the USA, Mexico and Canada will be covered by the NAU.
The North American Union (NAU) is a theoretical economic union, in some instances also a political union, of Canada, Mexico, and the United States. It is loosely based on the European Union, occasionally including a common currency called the Amero or the North American Dollar.
While the idea for some form of union has been discussed or proposed[1] in academic, business and political circles for many decades,[2] government officials from all three nations say there are no plans to create such a union and no agreement to do so has been signed.[3][4][5] The formation of a North American Union has been the subject of various conspiracy theories.[6][7]
http://en.wikipedia.org/wiki/North_American_Union
I read the above in a hard bound book in disgust, in the late 90’s in something called a one world government. It was various theory’s discussed of whats possible when W takes over and finishes selling us out.
I think an issue not fully explored is the effect the law has on American foreign policy. We have already seen Mexico’s reaction to the Arizona statute and I suspect we’ll see more reaction if citizens of other Central American countries are unlawfully detained. States bordering other nations have no right to jeopardize overriding national interests or legitimate foreign policy goals with their own myopic statutory schemes. For this reason alone, I would overturn it and return the enforcement of immigration exclusively to the federal authorities.
Blouise,
I understand that kind of memory loss!
Blouise,
Have you heard about tequila and Jagermeister? 😀
It’ll make you forget just about everything. 😉
rafflaw
Blouise,
You are right about Arizona, but you forgot about their favorite sheriff, Joe Arpaio!
================================================================
I try to forget him ……….
AY,
The history of Arizona is a fascinating read. March of 1861 they voted to join the Confederate States of America but the Confederacy was not yet ready to take territories so Arizona kind of sat in no-mans’ land until 1862 when it became a Confederate territory.
When Fort Sumter happened, Lincoln ordered all troops back to fight the war which left Arizona without any Union troops. The Apaches went on a rampage. (Perhaps one of the reasons they turned to the Confederacy)
In 1863 the Union retook the territory.
They finally were admitted to the Union as the 48th state in 1912.
Arizona seems to have a history of bucking the Feds and losing.
raff,
I’m much older than that. 😉
No, in all seriousness, my recall of sansabelt slacks is seeing the commercials on TV as a little kid. Right between the Mr. Owl Tootsie Pop commercial and the Gorilla With Samsonite commercial.
But I’ll go anywhere for a joke, damn it! Even into the past.
Bdaman,
Understand this. I will write it very plainly.
I do not take issue with undocumented peoples within our borders being held to account for breaking our laws. That said.
This law compels law enforcement officials to arrest and detain peoples ,citizen or not, if they, in the opinion of the individual officer, seem foreign enough and cannot immediately upon request provide proof of legal status. In short, any American citizen who forgets their drivers license and is pulled over or stopped in Arozona is at risk for detention sanctioned by the state.
The practical implications of enacting this law in Arizona is that all U.S. citizens (especially if you’re latino) in Arizona must carry government I.D. at all times, or risk the possibility of arrest and detention.
In addition, the law is ripe with possibilities for abuse. The law never makes clear what it is asking officers to look for anyway. It says you can’t use race, color, or other racially divisive means to assess the potential that a person may be here illegally, so how exactly are the officers supposed to know? ESP? The law doesn’t specify.