Arizona's New Immigration Law Is Unconstitutional -- But this Right-Wing Supreme Court May Have Other Ideas

Last week, Eric Holder’s Justice Department sued to block Arizona’s new immigration law, SB 1070, from taking effect. If the case makes its way to the Supreme Court, it will offer a test of just how brazen the ideologically informed judicial activism of the Roberts court’s five conservative justices really is. 

The Justice Department’s claim avoids the most controversial aspect of the law -- its ripeness for racial profiling. U.S. v. Brewer is one of seven suits filed in federal courts so far -- others will address the profiling issue (the court has ruled in the past that ethnicity can be taken into account when enforcing immigration law). The federal government’s suit is narrowly focused on the question of whether the statute steps on its turf -- whether it effectively regulates immigration, which the courts have long held to be Washington’s exclusive domain. (Article I of the Constitution holds: “The Congress shall have Power....To establish a uniform Rule of Naturalization.")

The courts have long held, under the Constitution’s Supremacy Clause, that when a state law conflicts with a federal law, the former is, in the words of Justice John Paul Stevens writing for the majority in a 2008 case, “without effect.”  

Despite the rather clear case law on the subject, conservatives have, predictably, tried to fit the lawsuit into their favorite narrative of a federal government run amok. Arizona State Senator Russell Pearce, one of the sponsors of SB 1070, told Fox News, “There’s never — and let me repeat, never has there been a preemption issue on states enforcing this law….  We enforce many federal laws. It’s outrageous, what they’re doing! This is about an agenda! This is a president that is acting like a dictator!” 

The statement isn’t just an egregious lie -- it contains several. The first is that SB 1070 doesn’t seek to redefine immigration law, but merely “enforces” what the feds already have on the books. SB 1070 makes it a crime to be in the state of Arizona without proper papers. Federal law holds that it’s a crime to enter the country illegally, or to be here if you’ve already been deported in the past. But under federal law, it’s a civil violation, not a criminal offense, to be here without papers if those other factors don’t come into play. As the lawsuit charges, “Congress provided for the civil removal of unlawfully present aliens, but did not criminally penalize their mere presence or movement within the country absent other factors.” 

SB 1070’s “trafficking” provisions also go much further than federal law. As far as the feds are concerned, transporting or harboring undocumented immigrants “in furtherance” of unlawful immigration is illegal. In Arizona, transporting or housing someone without valid papers for any reason would be a crime if the law goes into effect. Congress was careful not to criminalize good Samaritans helping out an unauthorized immigrant in need. Lawmakers didn’t want to make it illegal to pick someone up in distress -- to take undocumented immigrants to a health clinic or assist them with humanitarian aid. Arizona didn’t make that distinction. (These are just a few of the provisions that conflict with federal immigration law -- a more detailed overview is available here.) 

Perhaps the most serious flaw in the argument that SB 1070 merely enforces federal law is the text of the legislation itself. As the Department of Justice notes in its claim, “According to the statute’s statement of ‘intent,’ S.B. 1070 is not meant to exercise traditional state police powers but rather seeks to establish an Arizona-specific immigration ‘public policy.’”