Arizona and the federal preemption doctrine

¶ … 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."

State Enforcement of Federal Law

Proponents of SB 1070 argue that Arizona is not attempting to pass new law in the regulatory field of immigration, but rather that it is trying to enforce the criminal provisions of existing Federal law.

They point out that neither the Constitution nor the Supreme Court has precluded the States or localities from enforcing the criminal provisions of immigration law.

Because the enforcement of the criminal provisions of Federal Law has not been expressly prohibited by the Constitution, it would be reserved to the states respectively. According to the Tenth Amendment of the U.S. Constitution, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This is interpreted to mean that the states have implied powers in addition to the powers explicitly enumerated to them in the Constitution.

With this understanding of the Constitution, proponents argue that the disputed SB 1070 provisions are not immigration law provisions, but criminal law provisions.

For example, the provision making it a state crime for an alien to be in Arizona without carrying the required documents is only an enforcement of the U.S. regulation requiring aliens who have been in the country longer than 30 days to have registration documents on their person.

Generally, the Supreme Court has indicated that there is some role in immigration law for states. The Supreme Court has held that "the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal."

Proponents argue that not only has the Federal Government permitted state enforcement of Federal law, it has relied on states in enforcing immigration law. In the context of immigration, the INA itself requires states to share information about an individual's criminal history with federal agencies responsible for enforcement of the INA.

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).