Federal preemption and Arizona's immigration law SB 1070

¶ … Arizona

The Federal Preemption of Arizona Immigration Law SB 1070

Arizona's new immigration law, the Support Our Law Enforcement and Safe Neighborhoods Act - SB 1070, is one of the most controversial pieces of legislation in recent memory.

It gives states unprecedented power in regulating illegal immigrants, which is traditionally handled by the Federal Government.

Proponents believe that it is necessary to reduce illegal immigrants' exploitation of our broken immigration system, where "crossing the border is like crossing the finish line."

Opponents believe that it is motivated by racism and xenophobia.

SB 1070 potentially violates a number of Constitutional principles, such as the Equal Protection Clause and the Fourth Amendment's Prohibition of Unreasonable Search and Seizure. However, the Act's intrusion on federal power will prove to be its biggest vulnerability as it is litigated in the Federal court system.

The Legal Provisions of Arizona's SB 1070

SB 1070 gives the state the power to arrest and try illegal aliens who are in Arizona without carrying the required documents.

It gives state police the power to investigate the immigration status of an individual if there is reasonable suspicion that the person is an illegal alien when the individual is arrested or stopped by the police.

If the individual is arrested by the police on suspicion of being an illegal alien, the police will detain the individual until they receive confirmation of the person's legal immigration status by the federal government.

Federal Preemption

Federal Preemption of state law is rooted in the Supremacy Clause of the U.S. Constitution, which states that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof & #8230; shall be the supreme Law of the Land; & #8230; any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.."

Courts have interpreted this clause to give the Federal Government the right to mark off exclusive domains of regulation.

Even when the Federal Government fails to explicitly mark off a domain of regulation, Courts will infer that the Federal Government intended to do so if the federal regulatory scheme is so pervasive as to "occupy the field" in that area of the law, a concept known as "field preemption."

SB 1070 may be preempted by Federal law because the Federal Government has already created a regulatory scheme which is so pervasive so as to occupy the field of immigration regulation through the Immigration and Naturalization Act ("INA") and the agencies which enforce the INA, such as the Department of State and United States Citizenship and Immigration Services (USCIS).

For example, the U.S. already requires aliens who have been in the country longer than 30 days to have registration documents on their person.

Thus, there is already an extensive statutory scheme in place and states have played no role in the regulation of immigration before this point.

Opponents of SB 1070 take particular issue with the Act's provisions regarding the arrest and detention of suspected illegal aliens.

Those that believe it to be tacitly racist or anti-alien believe that it violates the Equal Protection Clause of the Fourteenth Amendment.

Although there are many discrimination and civil liberties issues at play here, opponents of SB 1070 recognize that it is best to bet on the interests of the Federal Government.

In Whiting v. Friendly, a recent case brought by the American Civil Liberties Union ("ACLU"), the plaintiff argued that SB 1070 will "(1) require police to investigate and determine who may remain in the United States; (2) erect a state immigration registration and punishment scheme by creating state crimes and criminal penalties relating to alien registration, immigration status, and work authorization; and (3) require police to arrest and detain individuals and transfer them to federal authorities based merely on a belief that they have violated federal civil immigration laws, when state and local officers are not competent to make such a determination or authorized to make it under federal law."

Conclusion

It is yet to be seen whether SB 1070 is constitutional. As of now, many states appear to believe that it is Constitutional enough, as they are considering similar legislation.

However, it may be premature for states to even consider this legislation. Even if the SB 1070 passes Constitutional muster on the Federal Preemption issue, it would still face strong Constitutional challenges on the issues of Equal Protection and Unreasonable Search and Seizure.

Arizona SB 1070

U.S.C. 8 § 1101

United States v. Arizona, No. 10-16645, from opening statement of John J. Bouma, legal representative for Defendant in 9th Circuit Supreme Court, (2010). Available at http://www.ca9.uscourts.gov/media/view_subpage.php?pk_vid=

Mary Fan, Post-Racial Proxies: Resurgent State and Local Anti-Alien Laws and Alternate Frames for Antidiscrimination Values. Cardozo L. Rev. 103-104 (2010).

Kevin R. Johnson, a Case Study of Color Blindness: The Racially Disparate Impacts of Arizona's SB 1070 and the Failure of Comprehensive Immigration Reform. UC Davis Legal Studies Research Paper Series, 24 (2010).

Arizona SB 1070, §3.

Arizona SB 1070, §5.

SB 1070; 8 USC § 1373(c)

U.S. Constitution, Article VI, Clause 2

Donald E. Lively and Russell L. Weaver. Contemporary Supreme Court Cases: Chapter 6 Federal Preemption of State Power. 28 (2006).

Gade v. National Solid Wastes Mgmt. ass'n, 505 U.S. 88, 98 (1992)

Lively, Donald E.; Weaver, Russell L. (2006). Contemporary Supreme Court Cases: Chapter 6 Federal Preemption of State Power.

U.S.C. § 1101

Friendly v. Whiting, No. CV 10-1061115, 115 (2010).

8 U.S.C. § 1304(e)

Friendly v. Whiting at 115.

Friendly v. Whiting at 115.

Mary Fan, Post-Racial Proxies: Resurgent State and Local Anti-Alien Laws and Alternate Frames for Antidiscrimination Values. Cardozo L. Rev. 103-104 (2010).

See Friendly v. Whiting

Friendly v. Whiting at 74

United States v. Arizona, No. 10-16645, Brief of Amici Curiae State Legislators for Legal Immigration, 5 (2010).

Gonzalez v. Peoria, 722 F.2d 468, 476 (1983).

U.S. Constitution, Tenth Amendment

Donald E. Lively and Russell L. Weaver. Contemporary Supreme Court Cases: Chapter 6 Federal Preemption of State Power. 28 (2006).

United States v. Arizona, No. 10-16645, Brief of Amici Curiae State Legislators for Legal Immigration, 5 (2010).

8 U.S.C. § 1304(e)

United States v. Arizona, No. 10-16645, Brief of Amici Curiae State Legislators for Legal Immigration, 6 (2010).

Plyler v. Doe, 457 U.S. 202, 225 (1982) (citing De Canas v. Bica, 424 U.S. 351 (1975)).

United States v. Arizona, No. 10-16645, Brief of Amici Curiae State Legislators for Legal Immigration, 7-10 (2010).

Laura Sullivan and Beau Hodai, How Corporate Interests Got SB 1070 Passed, November 9, 2010, available at http://www.npr.org/templates/story/story.php?storyId=131191523

Gabriel J. Chin, et.al., a Legal Labyrinth: Issues Raised by Arizona Senate Bill 1070. Arizona Legal Studies Discussion Paper No. 10-24, 3 (2010).