U.S. v. Arizona: Who wins?
Tue July 13, 2010 1:23 pm

In its lawsuit against the state of Arizona that objects to S.B. 1070, the new Arizona immigration law, the U.S. Department of Justice [quoting from the complaint] "seeks to declare invalid and preliminarily and permanently enjoin the enforcement of S.B. 1070," because "S.B. 1070 is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution."

Considering that DOJ is supposed to have some of the finest legal talent in the land, the complaint is really not a very persuasive document. Preemption is merely asserted. The government made no effort to support its assertion with references to precedent or statutes. It doesn't even bother to cite the constitutional language pertaining to immigration, nor does it refer to any specific federal statutes. The complaint says only, "In our constitutional system, the federal government has preeminent authority to regulate immigration matters. The authority derives from the U.S. Constitution and numerous acts of Congress."

Is DOJ right? Does the Constitution preempt the states from taking action against illegal immigration?

The word "immigration" does not appear in the Constitution. The closest reference occurs in Article I, Section 8. Among the powers granted to Congress is: "To establish a uniform rule of naturalization...." The word "uniform" is the strongest argument for the government's claim of preemption. The Constitution also authorizes the federal government to "regulate commerce with foreign nations."

The most vulnerable section of the Arizona law is the language that mandates that for any lawful "stop, detention or arrest made by a law enforcement official ... where reasonable suspicion exists that an individual is an alien and is 'unlawfully present' in the United States, the officer must make a reasonable attempt to determine the person's immigration status when practicable and to verify it with the federal government...." The difficulty here is what is "reasonable suspicion that an individual is an alien?" The likelihood is that the initial determination will be based on the person's speech and appearance.

LAW PROFESSORS: IT'S UNCONSTITUTIONAL

The Wall Street Journal's "Law Blog" interviewed Karl Manheim of the University of Loyola (Los Angeles) law school. "The Arizona law appears to be “facially unconstitutional,” Manheim said. “States have no power to pass immigration laws because it’s an attribute of foreign affairs. Just as states can’t have their own foreign policies or enter into treaties, they can’t have their own immigration laws either.”

Erwin Chemerinsky, an expert in constitutional law and the dean of the law school at the University of California, Irvine, told Yahoo! News federal law clearly preempts the Arizona measure in his view, rendering the state law unconstitutional.

ARIZONA'S DEFENSE

Kris W. Kobach, a law professor who helped to draft the Arizona statute, plausibly contends that the Arizona law does not contravene the preemption doctrine because it provides for "concurrent" enforcement of federal law. Kobach has explained that the framers of the legislation were keenly aware of the preemption doctrine and took pains to craft it in a manner that would insulate it from a preemption challenge. In particular, the statute declares that it "shall be implemented in a manner consistent with federal laws regulating immigration."

* * * *

A hearing on the government's request for an injunction will be heard in a Phoenix federal court on July 22. That is just a few days before the effective date of the act.

My belief is that the Obama Administration will win the battle but lose the war. That is, the law will be found to be unconstitutional, but the loss will be pinned on Obama and the Democrats generally. The fight over Arizona's illegal immigration law is similar to the fight over Voter ID. A political party cannot tie itself to a law that has 70+ percent approval in the country without suffering political consequences.

"The United States Supreme Court has said states can't complement federal immigration law," he said, citing the 1941 Supreme Court case, Hines v. Davidowitz. In that case, the Supreme Court ruled that by its adoption of a comprehensive, integrated scheme for regulation of aliens — including its 1940 registration act — Congress has precluded state action like that taken by Pennsylvania."

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