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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.’”  

What’s more, SB 1070 explicitly states that the purpose of the law is to make “attrition through enforcement the public policy” of Arizona. “Attrition by enforcement” is the preferred policy of the xenophobic Tom Tancredo wing of the conservative movement, but it clearly contradicts federal immigration policy. Right-wing lawmakers tried and failed to make it the law of the land in 2005. 

Perhaps the greater falsehood in Pearce’s spin is that the federal government hasn’t argued, and won, a whole slew of cases based on federal immigration laws trumping competing legislation passed by the states. The reality is that the courts have held the government has exclusive domain over immigration law dating back to the 1880s.  

The National Immigration Law Center summarized those early decisions like this: 

…In a series of cases in the late nineteenth century upholding provisions of the Chinese Exclusion Acts, the Supreme Court described the federal immigration power in sweeping terms, as a plenary power not subject to normal judicial restraints. In subsequent decisions the Court has repeatedly confirmed Congress’s full and exclusive authority over immigration. State and local laws that attempt to regulate immigration violate the Supremacy Clause of the U.S. Constitution and are therefore preempted by federal law. 

Later, in the 1940 case Hines v. Davidowitzthe court struck down a Pennsylvania law that would have criminalized “aliens” who failed to carry state registration cards. The Supreme Court held that “Whatever power a State may have to restrict, limit, regulate and register aliens as a distinct group, is subject to the national legislative and treaty-making powers.” The justices found that the federal government had enacted “a comprehensive and integrated scheme for the regulation of aliens,” which “precludes the enforcement of state alien registration Acts such as that adopted by Pennsylvania.” 

Arguably the most definitive decision came in the 1976 ruling in De Canas v. Bica. In that case, a California law that prohibited employers from knowingly hiring undocumented workers was upheld by the court specifically because they found it was aimed not at regulating immigration, but at setting employment standards within the state. The case resulted in three tests to determine whether a local ordinance was preempted by federal law: 

1. Constitutional preemption: Is the state or locality attempting to regulate immigration? 

2. Field preemption: Did Congress intend to occupy the field and oust state or local power? 

3. Conflict preemption: Does the state or local law stand as an obstacle to or conflict with federal law, making compliance with both the state and federal law impossible? 

A state statute or local ordinance that fails any one of these three tests is unconstitutional, and therefore invalid. 

In his concurring opinion in the 1982 case Plyler v. Doe -- which struck down a Texas law denying public education to the children of unauthorized immigrants -- Justice Lewis Powell noted that “The Federal Government has… broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization.” 

A year later, a federal circuit court upheld an Arizona ordnance that was similar to SB 1070 in some respects. But in that case, Gonzalez v. City of Peoria, the court found that while local law enforcement agencies were within their rights to enforce federal criminal law, they could not make arrests based on violations of the civil code. “Many of the problems arising from implementation of the City's written policies,” the justices wrote, “have derived from a failure to distinguish between civil and criminal violations of the [Immigration and Naturalization] Act. Several of the policy statements use the term ‘illegal alien,’ which obscures the distinction between the civil and the criminal violations.” This is exactly what Arizona’s SB 1070 does -- mandates that local law enforcement detain people who have violated the federal government’s civil code. 

A district court ruling (PDF) shooting down a Hazleton, Pennsylvania law aimed at illegal immigrants may speak most directly to the claims made by Arizona Governor Jan Brewer and other supporters of SB 1070.  “Whatever frustrations officials of the City of Hazleton may feel about the current state of federal immigration enforcement,” the court wrote, “the nature of the political system in the United States prohibits the City from enacting ordinances that disrupt a carefully drawn federal statutory scheme.” 

That’s only a sample of the cases in which the courts held that federal law preempts the states from regulating immigration. Given 130 years of legal precedents on the matter, the Feds’ case should be a slam-dunk. But bear in mind that conservative charges of “liberal judicial activism” are pure projection; studies show that so-called "conservative" justices are more likely to overturn established precedent and ignore the will of Congress -- it’s the “liberal” justices who tend to show judicial restraint. If U.S. v. Brewer makes it to the Roberts Court, we’ll get a glimpse of just how far they’re willing to go.

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