Wednesday, April 25, 2012
Today, eight justices of the Supreme Court (Associate
Justice Elena Kagan, formerly President Obama’s solicitor general, has recused
herself) will hear oral arguments in The United States v. Arizona, a case that
will decide whether the Obama administration may impose its strategic neglect
of federal immigration laws on the states, or whether instead the states may
use their law-enforcement resources to “do the jobs Americans the Justice
Department won’t do.”
In April 2010, Arizona governor Jan Brewer signed the
Support Our Law Enforcement and Safe Neighborhoods Act into law. The tough,
commonsense immigration-enforcement package that would come to be known simply
as S.B. 1070 had passed comfortably in both houses of Arizona’s legislature and
enjoyed broad public support. But in July of 2010, the Obama Justice Department
asked a federal court for, and was granted, an injunction against enforcement
of major provisions of the law, including the requirement that police make an
effort to ascertain the immigration status of lawfully detained individuals
when there is reasonable suspicion they are in the country illegally; the
complementary requirement that immigrants carry federal immigration papers or
be subject to misdemeanor charges; and the imposition of penalties on illegal
immigrants who improperly seek work. In April of 2011, the Ninth Circuit Court
of Appeals added to the annals of its infamy by upholding this injunction, and
in December the Supreme Court agreed to hear an appeal.
The conflict centers on whether the aforementioned
provisions of S.B. 1070 preempt federal law on a matter of federal prerogative
— in contravention of the Supremacy Clause in Article VI — or whether, as the
state of Arizona has argued, they merely complement that law. But we can save
the Court the trouble. There is simply no plain-language reading, either of the
Arizona law or of federal immigration code, that renders the one incompatible
with the other. The Justice Department’s case rests instead on a willful
misreading of federal statute, and it reinterprets the requirement that states
not preempt federal immigration laws as a requirement that states harmonize
their own laws with federal immigration enforcement practices — or in this
case, with the lack thereof.
Federal courts have generally held that although setting
immigration law is the exclusive domain of the federal government, the states
can and indeed should play a role in enforcing that law. For example, in United
States v. Vasquez Alvarez (1999), the Tenth Circuit saw “a clear invitation
from Congress for state and local agencies to participate in the process of
enforcing federal immigration laws” and a “preexisting general authority of
state or local police officers to investigate and make arrests for violations
of . . . immigration laws.” The Fifth Circuit similarly noted in Lynch v.
Cannatella (1987) that “no statute precludes other federal, state, or local law
enforcement agencies from taking other action to enforce this nation’s
immigration laws.” And in Plyler v. Doe (1982), Justice William Brennan,
writing for the majority in an otherwise pro-open-borders opinion, held that
“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.”
This is all S.B. 1070 does. Let us take each of the
enjoined provisions separately. Section 2(B), arguably the most controversial,
requires that police officers who have lawfully arrested, detained, or
otherwise stopped persons for a violation of any law or ordinance take
reasonable measures to ascertain the immigration status of those persons should
there be a reasonable suspicion they are here illegally. The Justice Department
has argued, and the lower courts have agreed, that this unjustly singles out
aliens as a group for discrimination and surveillance. But the provision is
aimed specifically at aliens already suspected of breaking the law. U.S. code
requires aliens to be properly registered with the federal government, and it
already commands federal authorities to respond to any inquiries “by a Federal,
State, or local government agency, seeking to verify or ascertain the
citizenship or immigration status of any individual.” So it stands to reason
that local authorities with custody of a suspected illegal alien (who may have
committed one of the deportable infractions codified in federal law, to boot)
have the investigative and enforcement resources to confirm that alien’s
status.
The same goes for section 3(C), which imposes penalties
on aliens for not carrying registration papers. Federal law already requires
that “every alien, eighteen years of age and over, shall at all times carry
with him and have in his personal possession any certificate of alien
registration or alien registration receipt card issued to him.” And federal
penalties for a willful failure to complete and carry proof of registration
already exist. The Arizona law merely adds a layer of state penalties to
existing federal ones.
Lastly, section 5(C) of S.B. 1070 makes it unlawful for
illegal aliens to solicit work. Opponents have argued that this preempts the
clear congressional preference to focus on employers of illegal workers and not
the workers themselves. Federal law does prohibit states from imposing their
own sanctions on employers — but it does not forbid states to impose sanctions
on illegal workers, who are already required to swear, under penalty of
perjury, that they are lawfully authorized to work in the United States. Under
this section, S.B. 1070 thus avails itself of the means open to it in the
pursuit of an avowed congressional end: to stem the employment of illegal
workers.
While it is thus clear that nothing in the Arizona law
runs afoul of federal immigration statutes, it is equally obvious that, facing
an immigration crisis in its back yard, Arizona has decided to enforce those
statutes more strenuously than the current administration in Washington. That
it has been compelled to do so should not be cause for a censure of the former,
but of the latter.
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