S.B. 1070, ACA, AND FEDERAL PREEMPTION 1070, the ACA, and Federal Preemption

S.B. 1070, the ACA, and Federal Preemption

Tenth Amendment

The Tenth Amendment was intended to limit the scope and power of the federal government, thereby preserving some measure of state autonomy (Lash, 2006). The Tenth Amendment accomplishes this by stating explicitly that the federal government can only exercise those powers enumerated within the U.S. Constitution. All other powers are left to the states. In James Madison's words, a Federalist, the "… powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." (p. 166). The Tenth Amendment therefore allows states to retain their freedom, sovereignty, and right to self-determination, as long as it does not conflict with the powers conferred to the federal government by the Constitution.

Madison, however, never viewed the Tenth Amendment as restricting the construction of federal powers (Lash, 2006). Two hundred years ago the Ninth Amendment was interpreted as limiting the growth of federal powers enumerated in the Constitution. During the Federalist period, the Ninth and Tenth Amendments were therefore distinct, yet complimentary. By the late 20th century, U.S. Supreme Court jurisprudence had essentially rendered the Ninth Amendment moot when the Rehnquist Court, in a number of decisions, interpreted the Tenth Amendment as both enumerating the powers of the Federal government and strictly limiting construction. The Rule of Strict Construction was therefore tied to the Tenth Amendment by the Rehnquist Court.

Federal Preemption

The Ninth and Tenth Amendments, as interpreted by the Supreme Court, protect state rights, but the text of these amendments fail to address how to resolve conflicts between federal and state constitutions and laws. The Supremacy Clause in Article VI, paragraph 2, states that when such conflicts arise federal law preempts state law (LII, 2010a; LII, 2010b). Some examples include the Voting Rights Act passed by the U.S. Congress, which preempts all state voting laws. The Food and Drug Administration (FDA) has been given the authority to take over regulation of all

In contrast, the FDA also regulates prescription medication labeling, but only by setting minimum standards. State laws can therefore impose stricter labeling guidelines for medications if they wish.
S.B. 1070: A Case Study in Federal Preemption

One of the more controversial cases of federal preemption is the battle over provisions within Arizona's anti-immigration law S.B. 1070. Federal jurisprudence concerning preemption challenges is all over the map, according to Jennifer Phillips (2011). The Court of Appeals for the Third Circuit tends to view federal immigration laws as taking precedence over anything remotely related to immigrants and their status in this country. By contrast, the Ninth Circuit Court of Appeals has permitted states to require employers to take part in the E-Verify program, thereby limiting the scope of federal preemption when it comes to immigration laws within its jurisdiction.

Four provisions of Arizona's anti-immigration law S.B. 1070 were challenged in federal court and eventually the Supreme Court agreed to hear arguments (Arizona et al. v. United States, 2012). This law was the result of growing frustration at the local level with the federal government's unwillingness or inability to address a growing problem with illegal immigrants. The name of the law is Support Our Law Enforcement and Safe Neighborhoods Act and the stated goal was to establish policies that discouraged illegal immigration and eliminate the economic incentives that fuels illegal immigration. The law emphasized the greater use of law enforcement to achieve these goals.

Two provisions in S.B. 1070 created new crimes (Arizona et al. v. United States, 2012). If an illegal immigrant fails to register with the appropriate federal agency and then tries to seek employment they are guilty of two misdemeanors for each act. A third provision challenged before the Supreme Court gave local and state law enforcement officers the authority to arrest, without a warrant, anyone who could be deported for having committed an offense. The fourth provision allows law enforcement officers to check the immigration status of anyone they stop or arrest. The District Court for Arizona issued a preliminary injunction…