Tuesday, August 3, 2010
Gabriel J. Chin and Marc L. Miller (pictured, lower right) (both of University of Arizona James E. Rogers College of Law) have posted Cracked Mirror: SB1070 and Other State Regulation of Immigration through Criminal Law on SSRN. Here is the abstract:
While the Supreme Court has held that regulation of immigration is an exclusively federal power, some claim that pursuant to “cooperative enforcement”, states can enact statutes that are “mirror images” of federal criminal immigration laws. This theory, that federal criminalization enhances state power to enact consistent laws, led to Arizona’s SB1070 as well as legislation in several other states. Through cooperative enforcement measures, it is proposed, states can create regimes encouraging undocumented non-citizens to self-deport under threat of prosecution.
This paper contends that the mirror image theory, pioneered by Professor Kris Kobach, is doubtful, by exploring some points not yet fully ventilated in the SB1070 litigation. First, the mirror image theory extrapolates from case law allowing states to enforce federal law in the sense of permitting arrests by local police for federal crimes. But power to arrest does not imply power to try or criminalize. Second, the theory builds on the observation that the Immigration and Nationality Act (“INA”) includes a role for state law enforcement. However, the INA permits only local action that is preliminary, in the form of arrests or information sharing (which leave decision-making in federal hands) or is supervised and controlled by federal agencies.
This paper also focuses on the criminal nature of the statutes created under the mirror image theory. While cooperative enforcement may make sense in the civil arena, since the Judiciary Act of 1789, Congress has granted federal criminal jurisdiction to federal courts, “exclusively of the courts of the several States.” While of course state legislatures often have concurrent criminal jurisdiction over particular matters, there are also areas of exclusive federal criminal jurisdiction. The Court has held that if “an offense against the public justice of the United States” it is “within the exclusive jurisdiction of the Courts of the United States” even if a state statute seems to cover the misconduct. The Constitution’s assignment to the federal political branches of exclusive federal power to regulate immigration, coupled with the INA’s grants of administrative discretion and regulatory authority to the Secretary of Homeland Security and Attorney General but not the states, leave little room for the proposition that authority to prosecute, “an exercise of the sovereign power of the United States” has somehow been delegated to the states sub silentio.