By The Editors
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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