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.

SEE ALSO THE UPDATES AT THE END OF THIS POST.

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.

SDS