Fam­ily Feud

On April 29, 2010, Ari­zona Gov­er­nor Jan Brewer signed into law SB 1070, which gave local author­i­ties sweep­ing pow­ers to detain sus­pected ille­gal immigrants.

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.

Gold Hat: “We are Fed­erales… you know, the mounted police.” Dobbs: “If you’re the police, where are your badges?”

There are four dis­puted parts to SB 1070:

  1. 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.]
  2. It is a vio­la­tion of Ari­zona state law to fail to reg­is­ter as an alien. [Sec­tion 3]
  3. Ille­gal aliens are not allowed to find work under Ari­zona law. [Sec­tion 5c]
  4. 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.