The legal issue at question is taken directly from Article VI, Paragraph 2 of the Constitution, commonly called the Supremacy Clause:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
The principle which arises out of this paragraph is called preëmption. Preëmption can be express (i.e. explicit, stated clearly) or implied. The basic question for the Court, in oral arguments today, will be: does SB 1070 run afoul of the Supremacy Clause?
Article I Section 8 of the United States Constitution gives Congress the authority to regulate naturalization, that is, explicitly preëmpts state law on the matter:
The Congress shall have Power To … establish an uniform Rule of Naturalization …
It’s not a huge cognitive leap to imagine that naturalization rules and immigration policies are in the same realm.
Arizona (ironically then led by Governor Janet Napolitano who is now the Secretary of Homeland Security with authority over immigration policy) declared an emergency surrounding immigration in 2005. In a double irony, a report today by the Pew Hispanic Center says that net immigration into the United States from Mexico has been near-zero in the 2005 to 2010 period. That is, 1.4 million Mexicans immigrated to the U.S. during that period, while 1.4 million Mexicans emigrated back to Mexico during the same period. This is presumably due to the Great Recession of 2008. Is the timing of this report a coincidence, on the eve of oral arguments before the Court? It’s hard to believe it could be.
There are four disputed parts to SB 1070:
- Law enforcement is required to determine an individual’s immigration status upon any contact, or if they even suspect someone is an illegal immigrant (see #4 below). [This is section 2b of the law.]
- It is a violation of Arizona state law to fail to register as an alien. [Section 3]
- Illegal aliens are not allowed to find work under Arizona law. [Section 5c]
- Arizona police have the power to make warrantless arrests of those suspected to be in violation of Federal immigration law. [Section 6]
A partially divided Ninth Circuit Court has ruled that these four provisions of SB 1070 fall under the principle of preëmption and are therefore unconstitutional.
Under long-standing policy, Congress allows the states to coöperate with the Federal government to enforce Federal immigration laws. Bill author Russell Pearce (who has since been recalled by voters) was among those spewing partisan rhetoric and thumbing their noses at the Federales, claiming they don’ need no stinkin’ badges.
This ought to be a no-brainer for the courts. I hope the appeals court allows our state to enforce the rule of law because the Obama administration doesn’t seem to care one whit for the safety of the citizens of Arizona. SB 1070 simply reflects federal immigration law. This Obama team doesn’t want immigration laws enforced — but that doesn’t mean that Arizona can’t take common sense steps to protect its own citizens. This is the first time in the history of this Republic, that a sitting President has sided with a foreign government against our citizens and in fact sued them to prevent them from enforcing the laws of the land.
Now counsel for Arizona will argue before the Court that Arizona legislators only intended to help out the United States, in the required spirit of coöperation evident in the above quote.
Over at SCOTUSblog, Stephen Wermiel writes:
Coöperation did not seem to be Arizona’s main motivation in passing the law. When Governor Jan Brewer signed the legislation, known as S.B. 1070, in April 2010, she described it as “another tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix.” Alabama, which recently passed a more restrictive immigration law, has defended its action in lower federal court proceedings on the basis of a need to stem the tide of unlawful aliens. In seeking Supreme Court review, however, Arizona now argues that its law is an effort to coöperate with federal enforcement.
Gabriel Chin, a professor of immigration law, firmly believes that SB 1070 will be struck down by the Supreme Court.
Every lower court to look at these types of statutes in Alabama, South Carolina, Utah and Arizona has said they’re unconstitutional. As a sort of plain vanilla constitutional analysis question, if you look at the old cases, if you look at the statute, it’s pretty clear that Congress is in charge here. The federal government is in charge here.
These whole problems came up before. They came up in the 1870s in California, when California wanted to drive out the Chinese. And the basic law was established by the U.S. Supreme Court and by Congress, then. And the idea is that these laws should be established and carried out by Congress.
Here’s what the Supreme Court said in 1876. The responsibility for the character of those regulations and for the manner of their execution belongs solely to the national government. If it be otherwise, a single state can, at her pleasure, embroil us in disastrous quarrels with other nations.
Chin is arguing, as other experts have, for the doctrine of express preëmption in this case. Despite the heated arguments on this issue, it appears unlikely that the Supreme Court will find any Constitutional grounds to support Arizona SB 1070.
- Why the decision on SB 1070 has already been made (thehill.com)
- SB 1070, the Arizona immigration law, is on for oral argument tomorrow (tarpon.wordpress.com)
- Should Immigration Supporters Hope SCOTUS Upholds Arizona’s Law? (reason.com)
- Arizona’s Immigration Law Is Constitutional–and Already Working (usnews.com)
- Obama Administration Doesn’t Want to Enforce the Immigration Laws (usnews.com)
- Ahead of Supreme Ct. Hearing, Legislators Grill SB1070 Author (newamericamedia.org)
- SB 1070 Summary: Read Arizona’s Controversial Immigration Law! (openmarket.org)
- What’s at Stake in Tomorrow’s Supreme Court Immigration Showdown? (reason.com)
- Rep. Grijalva: Arizona’s Immigration Law Would Lead to Chaos (usnews.com)
- AZ: Arizona’s immigration law gets its day in U.S. Supreme Court (eastvalleytribune.com)