Obama's Challenge To Arizona Law No Slam Dunk

To read mainstream new media reports on Arizona's new law designed to crack down on illegal aliens, you would think it is without question unconstitutional. Those reports are based on the U.S. Constitution's grant of power to Congress to enact an immigration and naturalization law. The Obama administration maintains that the federal law provides no room for the states to concurrently exercise power to aid the federal government in the enforcement of federal immigration laws.  “In our constitutional system, the federal government has pre-eminent authority to regulate immigration matters," the Justice Department argues in its complaint seeking to strike down Arizona's law. "This authority derives from the United States Constitution and numerous acts of Congress," the government continues. "The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests.” Judicial review of the case will be expedited because the government is seeking to enjoin Arizona from enforcing the law. It must convince the court, however, that it is likely to prevail on the merits of the underlying case before the court will grant its request for an injunction.

Respected constitutional law professor Jonathan Turley says the government's case is not going to be as easy as some might think to prove. Because the government is not waiting for an "as applied" challenge to a specific enforcement of the state law against an individual, Turley assumes the government's challenge will not be based on express federal preemption; rather, he assumes the government is basing its claim on implied preemption. He notes that he finds nothing in the legislative history of federal immigration laws that indicate an intent to preempt concurrent jurisdiction by the state's in enforcement matters. Thus, the government is relying on the Supremacy Clause found in Article VI to make its case. The federal courts do no assume preemption is intended he notes. The claim must be "based on an inherent conflict between federal and state law."

You may be surprised to learn that our Supreme Court has already unanimously approved of the exercise of concurrent jurisdiction by the states more than three decades ago. Explaining that decision, Turley writes:

In De Canas v. Bica, 424 U.S. 351 (1976), the Court ruled unanimously that California could exercise such concurrent jurisdiction. At issue was section 2805(a), stating that “no employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” In a decision written by liberal icon William Brennan, the Court rejected preemption under the Supremacy Clause, Art. VI, cl. 2, of the U.S. Constitution, by the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., the comprehensive federal statutory scheme for regulation of immigration and naturalization. This was obviously, however, before the current federal scheme was put into place.

The federal laws in force today are actually tougher than the immigration enforcement laws that were in effect at the time De Canas was decided. It's just that the federal government has been extremely lax in enforcing those laws. If the truth be told, the Obama administration has actually been conducting more enforcement actions than the prior Bush administration. Secretary of the Department of Homeland Security Janet Napolitano, the former governor of Arizona, believes Arizona's law "will detract from and siphon resources that we need to focus on those in the country illegally who are committing the most serious crimes.” Turley believes that argument is a weak one. "It will be hard to argue that arresting federal violators interferes with federal enforcement unless the policy is non-enforcement," he says.

Turley's reading of the Arizona law is not one that represents an alternative enforcement scheme as opposed to a concurrent enforcement scheme. Again, Turley cites yet another Supreme Court decision speaking favorably of concurrent state enforcement of our immigration laws.

“Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.”  lyer v. Doe, 457 U.S. 202, 228 (1982).

The Arizona law allows law enforcement officers to detain persons based on a "reasonable suspicion" standard and turn them over to federal immigration enforcement officers if it turns out they are present in the U.S. illegally. He sees that as the greatest weakness in the law for a constitutional challenge. "On its face, it is hard to see how that standard could be applied constitutionally except when officers determine status at the time of another criminal violation are present in the U.S. illegally," he writes. But because the case filed by the government does not challenge an actual case involving enforcement, that argument will be more difficult to prove he notes. Courts should refrain from issuing advisory opinions. Instead, they limit their review to actual "cases and controversies" pursuant to Article III.

The Justice Department's complaint readily notes the government's deliberate policy of non-enforcement.  "Arizona’s adoption of a maximal 'attrition through enforcement' policy disrupts the national enforcement regime set forth in the INA and reflected in federal immigration enforcement policy and practice, including the federal government’s prioritization of enforcement against dangerous aliens," the complaint reads. Turley notes though that Arizona is not making any determination on whether to deport an illegal alien. It is simply handing over illegal aliens to the federal government for further action.

One final comment on this matter. I note another local attorney blogger is suggesting Arizona's law requires everyone in that state to carry proof of U.S. citizenship. That is simply patently false. Typically, a person in the country lawfully will have a current valid driver's license. Non-immigrants on employment-based visas or asylees will possess an employment authorization card indicating a lawful presence in the U.S. Visitors will have a visa in their passport. Permanent residents will carry green cards. The Arizona law allows law enforcement to detain persons if they have a reasonable suspicion the persons are in the country illegally. Such persons would presumably lack any of these types of evidence of lawful presence in the country. Often, local law enforcement agencies in Indiana today, while detaining such persons arrested and jailed for other criminal offenses ,will confer with ICE agents to determine their status. If ICE indicates an interest in deporting the person, local law enforcement holds them until ICE agents pick them up and take them to Chicago for deportation or removal proceedings. Interestingly, a number of more liberal cities in America have deemed themselves by local law to be "sanctuary cities" and refuse to cooperate in turning over illegal aliens to federal agents. Isn't that an exercise of immigration authority in direct conflict with federal immigration laws? I haven't seen the Obama administration take those cities to court to strike down their local laws.

I don't like to see states have to take matters into their own hands; however, in a time when state and local budgets are being slashed because of the worst economic downturn since the Great Depression, it's understandable that states are concerned about a growing population of illegal immigrants who are straining social service budgets, school budgets and criminal justice budgets. In Arizona, the state has had to contend with a disproportionate number of illegal immigrants committing violent crimes. Phoenix, for example, has become the kidnapping capital of the U.S. Many of these kidnappers are illegal immigrants taking persons hostage until ransoms are paid, a practice that is common in Mexico. Public opinion polls indicate that an overwhelming percentage of Americans favors crackdowns on illegal immigrants. My own immigration clients often complain about the unfairness to persons who immigrate to this country lawfully when so many simply walk across the border and do as they please once they arrive here. Sen. Mike Delph has already indicated he plans to push an Arizona-like law for Indiana during the 2011 legislative session. Indiana may want to wait and see how the Arizona law plays out in the courts, though, before it gets too far out front.