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Archive for April, 2012|Monthly archive page

The Immigration Law Case That Isn’t About Immigration

In Constitutional Law, Immigration on April 12, 2012 at 3:42 PM

Sometime before the Supreme Court adjourns in June, the Court will determine the fate of S.B. 1070, Arizona’s controversial immigration regulation bill. The bill itself has generated much national and international controversy. In fact, this is not even the first time S.B. 1070 has been before the Court. The case currently before the Court, Arizona v. United States, does not involve the “merits” of Arizona’s regulation. Instead, the Court confronts only a structural issue: can a state regulate immigration—an area that greatly impacts international relations—under our federal structure of government?

The case before the Court, then, is not about the political issues surrounding immigration. It is instead a clash between federal and state power, contemplating an area of the law the Court has dealt with quite frequently in the last few years. The Constitutional provision that creates this conflict is Article IV, Clause 2, the Supremacy Clause. It states:

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, anything in the constitution or laws of any state to the contrary notwithstanding.

The Court has construed this Constitutional provision to prohibit state action in three contexts. The first is express preemption. This occurs when Congress explicitly states that a law preempts all other state laws. Preemption cases are rarely this straight forward. The next category is conflict preemption. Under this doctrine, when it not possible (either practically or actually) for an individual to comply both with the federal law and the state law, the state law must cede to the federal law. Finally, field preemption prohibits state action when a statute, or series of statutes, practically “occupies the entire field.” Examples of recognized statutory schemes that preempt the entire field are the Occupational Safety and Health Administration Act and the National Labor Relations Act.

Soon after Arizona’s governor signed S.B. 1070 into law, the United States filed for a temporary injunction to stay the law’s implementation until it could be determined whether the law was constitutional. The district court in Arizona granted an injunction of four specific provisions of S.B. 1070 because the district court believed the United States could likely show they are in fact preempted by federal law. A panel of Ninth Circuit judges upheld the district court’s findings.

The four provisions enjoined are:

  1. Section 2(b), which requires police making any lawful stop or arrest to inquire about the legal status of the individual if the officer has a reasonable suspicion of illegality.
  2. Section 3, which makes it a crime in Arizona for any individual to intentionally either fail to obtain or carry their immigration papers with them.
  3. Section 5(c), which makes undocumented individuals applying for a job, publicly soliciting a job, or receiving pay for work in Arizona a misdemeanor offense.
  4. Section 6, which authorizes Arizona law enforcement to make warrantless arrests of any individual the officer has probable cause to believe has committed a crime that would make that individual subject to deportation.

While these provisions have generated an abundance of commentary from all parts of the political spectrum, that commentary is not what is before the Court. What is actually at issue, however, is the consistent tug-of-war between the federal government and states. The law’s backers frame S.B. 1070 as a law that helps state law enforcement cooperate with the federal government, while protecting its citizens. In doing so, it invokes “police power,” which exclusively belongs to the states, to justify the would-be-law on a constitutional basis. Several interests groups across the country agree with this view of the law and have filed amicus briefs in support of this position.

The United States, the district court in Arizona, and the Ninth Circuit panel that decided the appeal, however, viewed the law in an entirely different light. While acknowledging Arizona’s intent to harmonize with the federal law governing immigration and naturalization issues, their argument frames the S.B. 1070 as one that directly conflicts with federal law. The United States also argues that by implicating foreign policy, S.B. 1070 occupies an area of the law that belongs solely to the federal government. Fearing that the end result of allowing S.B. 1070 to stand would be fifty-one different immigration law schemes, the United States wishes to prevent the law from taking effect. Thus far, the two courts to weigh these arguments have sided with the United States’ view.

Although the Court has entertained several important preemption cases over the last few years, the disparate results of these cases provide little indication as to how the Court will decide Arizona v. United States. But one thing is for sure, while this case involves immigration law, it is not a case about immigration, per se. Instead, it is part of a continuing conversation about what and which powers the federal and state governments possess. So later this year when the Court issues its decision and the media hubbub escalates with respect to immigration reform, remember that the Court is not entering the immigration reform debate; all it is doing is continuing a centuries old debtate about how power should be allocated in our federal system of government.

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