Wednesday, April 28, 2010

Arizona's Immigration Law, Supremacy, and Federal Preemption

Does Arizona's new immigration law, SB 1070, violate the Supremacy Clause of the U.S. Constitution?  It may, in (at least) two ways.


First, Arizona's immigration law, which authorizes state and local law enforcement officials to inquire into the immigration status of any person "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States," runs up against the comprehensive federal scheme in Title 8 U.S.C. that governs treatment of aliens.  Congress enacted Title 8 pursuant to its plenary power under Article I, Section 8 of the Constitution to "establish a uniform Rule of Naturalization . . . throughout the United States."  The federal scheme reflects Congress's judgment to completely occupy the field of immigration and naturalization (with an important exception, discussed below)--a judgment that is well within its powers until Article I, Section 8--and the comprehensive federal scheme therefore likely preempts Arizona's new law.  The new law is almost certainly invalid under the Supremacy Clause.

But even if Arizona's new law doesn't fall under field preemption, it almost certainly falls under conflict preemption.  The federal immigration and naturalization scheme includes a place for state and local authorities.  8 U.S.C. Sec. 1252c reads:

(a) In general.  Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who--

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

(b) Cooperation.  The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.

The provision contemplates a circumscribed role for state and local officials, to be sure, but the Arizona law authorizes a much broader role.  Particularly: The Arizona law authorizes arrest without a showing of a prior felony, the requirement under (a)(2), above.  Here's the provision from SB 1070:

E. A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.

An alien's unauthorized presence in the United States is just such an offense under 8 U.S.C. Sec. 1227.  Arizona's law is thus in conflict with the federal law and likely violates the Supremacy Clause under conflict preemption.

This isn't the first time that Arizona law came under challenge as running up against federal immigration law.  Just last year, the Ninth Circuit in Chicanos por la Causa v. Napolitano upheld Arizona's Legal Worker Act against a preemption challenge.  That act allows Arizona courts to revoke or suspend business licenses of employers who knowingly or intentionally hired unauthorized aliens.  But there the federal law, which prohibited employers from hiring unauthorized aliens, contained a specific savings clause that exempted state and local sanctions related to licensing from the broader preemption of state enforcement.  Arizona's law in that case fell squarely within this savings clause, and the court ruled that the Legal Worker Act was therefore not preempted.  (The Ninth Circuit also took its lead from De Canas v. Bica, the 1976 Supreme Court case that upheld a state law prohibiting employers from hiring unauthorized aliens, because the employment relationship is "within the mainstream of the state's police powers.")

The new law is different.  It regulates aliens directly, not by way of the employer-employee relationship (which is more obviously within the traditional powers of the state).  And the new law doesn't fall within a savings clause to a broader preemption provision; instead, it seems to run directly up against the corresponding federal law.

We've posted previously on the Arizona law here and here.  Jack Balkin posts his thoughts on preemption here; Jonathan Adler responds here.

UPDATE:  The law as enacted addresses some of these problems, but it does not solve them.  Thus, for example, Section B. requires "any lawful stop, detention or arrest" (not merely "any lawful contact") by a law enforcement official "in the enforcement of any other law or ordinance of a county, city or town or this state" (not merely for no reason) in order to trigger the "reasonable suspicion" standard.  This helps dodge the second conflict problem above (under the old section E. and 8 U.S.C. Sec. 1227), but not the first one (under 8 U.S.C. Sec. 1252c).  And it does nothing to dodge the field preemption problem.

Other sections of the law, too, are likely preempted under field and conflict theories.  Thus Sections C. and D. authorize state officials to securely transport an unauthorized alien to federal authorities upon release from state prison or on the assessment of any monetary fine.  This, too, runs up against 8 U.S.C. Sec. 1252c, because it does not require a felony or deportation or departure from the country, and violates field preemption.  Section F. authorizes the state to maintain immigration records for certain purposes; this, too, probably violates field preemption.

UPDATE: For DOJ Complaint filed July 6, 2010 and analysis see here.

Update: Arizona immigration statute partially enjoined on July 28, 2010, see here.


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Great point. Now, if 8USC 1252c changed the language to:

"is an alien illegally present in the United States; and/or...." this point may be moot.

This is what I love about the law. Language matters.

Posted by: Darren | Apr 28, 2010 8:22:42 PM

re: arizona immigration law sb1070
yup. and instead of this 'knowingly or intentionally hired illegals' talk, it'd probably be more productive to compel the state courts to prosecute ALL those who employ illegals, whether they know it or not. sentencing can then fluctuate throughout the different cases, depending on the effort that each employer was found to have enacted in the prevention of hiring slaves.

the only thing the employers will respond to is their bottom line, anyway. force them to adjust their own policies to protect it.

Posted by: asaad | May 2, 2010 2:01:20 AM

The law is more arguably in conflict with the Fourteenth Amendment, not the Supremacy Clause, LOL, who's writing this blog???

Posted by: Rob | May 4, 2010 8:22:27 AM

Asaad, so what if the law runs into problems as regards the fourteenth amendment? Does that mean one can't discuss any problems it potentially could run into as regards preemption and the Supremacy clause? I have to admit that when I heard of the law, my first thought was a problem with the equal protection clause in the fourteenth, although the law seems to cover that problem by specifying that race can't be used as a factor in reasonable suspicion except to the extent allowed by the Arizona and U.S. Constitution. So I'd be interested to see the professor's arguments relative to the fourteenth amendment.

That being said, I'm not sure that I buy the preemption argument.

Posted by: James | May 25, 2010 3:33:40 PM

Looking at the law from a different perspective, the Court has often used the "least restrictive means" doctrine in a number of cases. If a state has an interest in dealing with illegals, does this law use the least restrictive means to do so?

Posted by: John | May 31, 2010 7:32:05 AM

Here is a paper which sets forth the original intent of the "supremacy clause":

I would appreciate your comments.

Posted by: Publius Huldah | Jun 21, 2010 7:20:03 AM

No where in the U.S. Constitution is the U.S. Congress empowered with writing law regarding immigration. Immigration is not naturalization.

In spite of the perverse rhetoric of those who want to live under a nationalist, elitist dictatorship, the U.S. Constitution defines specifically what is supposed to be a very limited federal government.

In short, if the U.S. government wants constitutional authority over immigration, politicians, at the behest of the people of the various states, first must amend the U.S. Constitution to grant this power to the U.S. Congress.

All can see that in Article 1 Section 8 of the U.S. Constitution, the role of the U.S. Congress gets limited to naturalization: "to establish a uniform Rule of Naturalization . . . throughout the United States."

Prior to 1870, the U.S. Congress and Office of the Presidency adhered to their limited powers regarding naturalization.

How do we know this? Congress passed laws only regarding naturalization and had not dared to pass any law regarding immigration.

• The Naturalization Act of 1790, established the rules for naturalized citizenship, yet placed no restrictions on immigration.
• The Naturalization Act of 1795 lengthened the time of residency required to become a citizen.
• The Naturalization Act of 1798 further lengthened the time of residency required to become citizen.
• The Naturalization Act of 1870 defined controls and penalties for fraudulent practices of naturalization.

The first unconstitutional act of the U.S. Congress happened in 1882, with the Chinese Exclusion Act, a race-based law to explicitly limit immigration by Chinese.

After that illegal law became accepted, the U.S. Congress, with the assistance of various presidents, enacted a slew of unconstitutional laws.

• The Immigration Act of 1891 illegally established a Commissioner of Immigration in the Treasury Department.
• The Alien Contract Labor Law of 1885 illegally prohibited foreigners from coming into the United States to work.
• The Geary Act of 1892 illegally extended the illegal Chinese Exclusion Act of 1882.
• The mostly legal Naturalization Act of 1906 established an illegal Bureau of Immigration and Naturalization.
• The Immigration Act of 1917 illegally established the Asiatic Barred Zone, which restricted immigration from Asia.
• The Emergency Quota Act of 1921 illegally restricted immigration from any country to 3% of the number of people from that country living in the U.S. in 1910.
• The Immigration Act of 1924 illegally froze immigration from Southern and Eastern Europe, as well as Asia.
• The Immigration act of 1924 illegally capped immigration at 150,000.
• The The Immigration and Nationality Act of 1952 illegally increased the power of the government to deport illegal immigrants suspected of Communist sympathies.
• The Immigration and Nationality Act of 1965 illegally discontinued illegal quotas based on national origin, while illegally established a preference based system for who have U.S. relatives.
• The Immigration Reform and Control Act of 1986 illegally granted amnesty to legal immigrants wrongly deemed illegal under previous unconstitutioanl law.
• The Immigration Reform and Immigrant Responsibility Act of 1996 illegally established law regarding immigration detention, criminal-based immigration, and immigration relief.
• The REAL ID Act (2005) illegally curtailed habeas corpus relief for immigrants, illegally increased immigration enforcement mechanisms, and illegally imposed federal restrictions on the issuance of state driver's licenses to immigrants and others.

Full disclosure: My ancestors came here before the 1640s and founded many cities of present day New England.

Posted by: Smack MacDougal | Jul 7, 2010 11:54:34 AM

The previous comment says we dont have a right as a sovereign nation to control who comes into our Country.....thats a bunch of happy hogwash, since it doesnt jive with the reality of tribal territories, or the borders of Nations.

The precedence theory, I was here first, is also hogwash. We cant make good on who was where first going back to the beginning of human history. The modern day hispanics whose ancestors stole Central and South America from the Native Indians, have no moral precedence to the Southwest over the Europeans who pre-empted North America from its Native populations.

This is obviously an indivudal who believes we should pay reparations for anything historically unjust no matter how far back it is or even if none of the original victims are alive. This is a modern day conn for individuals who dont have enough pride to earn their own, to obtain wealth through extortion that others earned.

Finally the entitlement syndrome, which has created whole generations of me first citizens because some ancestor of mine, was harmed, allegedly by some ancestor of yours going 3000 or more years. After all werent the Israelites enslaved by the Egyptians 2000 years ago...are not modern day Jews entitled to reparations from Egypt??

Its the aforementioned ideas that are fueling Socialist pseudo-legal thrusts and destroying Freedom, initiative and can do spirirt in America...notions which made us great.

Posted by: major | Jul 8, 2010 8:35:51 PM

I agree - there is no power granted to Congress to control immigration - that power - in Article 1, Section 9, is left to the STATES to admit or not admit foreign nationals in their borders - once admitted - it was then up to the states to control access to various legal benefits and burdens within their own boundaries.

This is pretty simple analysis legally if you are smart enough to read the words.

Art. I Sect 8 gives Congress a grant of power to create a uniform system of 'naturalization,' which has always been defined as the 'path to citizenship,' it was NEVER defined at the time the framers met to be the importation as non-citizen foreign nationals. OTHERWISE, Congress could have simply slapped down slavery by creating a rule that negroes from Africa could not be brought into the states rendering the Civil War and Article 1 Section 9 irrelevant.

Just because Congress passes a whole slew of laws does NOT it possesses the power to do so - these 'law' professors fail at the first element of constitutional construction because I agree 100%, the laws Congress passed would survive a Supremacy Clause challenge if they are within a specific grant of power to Congress, but since the laws themselves are not within the enumerated powers of Congress - then - the Supremacy clause analysis is meaningless. There is nothing to be supreme over if the original law is ultra vires to the granted powers.

To answer the question - can't we control who comes into the country? Yes we can. The STATES have the power to control visitor immigration and the privileges and immunities clauses then grant that same right in other states to visitors legal in certain states. Alternatively, the federal government can enter into a treaty which grants visitors from certain nations access to the US as a visitor under certain conditions- and that ratified treaty is the supreme law of the land - There are clear options provided in the Constitution to do what needs to be done without tearing up the meaning and the intent the document.

Posted by: J. Farrell | Jul 14, 2010 7:49:21 AM

The DOJ claim is very clear and describes the conflict pre-emption issues well. The Arizona State Law does look like a conflict pre-emption issue.

I am working on a brief on conflict preemption in a state health care matter. Does anyone know of a good resource, laws, experts or links on conflict preemption in health care?

Thank you.


Posted by: Michael | Jul 14, 2010 10:35:32 AM

The post describes the question I am asking.

Posted by: Michael | Jul 14, 2010 10:37:21 AM

When the actual DOJ claim is read it presents a clear case that the State Law conflicts with the Federal Immigration laws. They also make the point that other Federal issues such as the relationship wiht the State of Mexico are involved and that a State can not create a law preempting Federal law.

I am interested in and researching conflict pre-emption and jurisdiction in the health care area. Does anyone know of cases, links or experts in the area of CMS policy and law being pre-empted by state laws or officals? Can a state official make up a health care law or a billing rule that conflicts with or overrides CMS policy?


Posted by: Michael | Jul 14, 2010 10:55:43 AM

There is one major problem with Title 8; the whole Title. It was revised and amended by a congress in Title 2 that was never passed into positive law AND Title 8 was never passed into positive law either.
SOOOOOOOOO Arizona can do whatever it wants regarding immigration. Also the 14th Amendment is invalid and unlawful as well. Guess that answers positively this question huh?

Posted by: Ed | Jul 19, 2010 11:56:58 PM

Article I section 8 of the Constitution limits the authority of Congress to the 10 square miles that is Washington DC and to the properties purchased from the States for forts, ports and buildings. So why does Congress think it has authority over the States?

Posted by: mike | Aug 7, 2010 10:20:39 AM

Mike... Have you actually READ Article I, Section 8? I think you're referring to #17, which is simply dealing with how the federal government will (practically) function within the 'District'. It in no ways constricts the US government to Washington D.C. The suggestion is utterly ludicrous.

Take a US History course and stop reading Libertarian dribble...

Posted by: J.M. Harrison | Aug 9, 2010 6:52:52 PM

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