Tuesday, July 20, 2010
In United States v. Arizona, the Obama administration claims that Arizona’s new immigration law, SB 1070, is an unconstitutional intrusion on the federal power to regulate immigration and thus violates the U.S Constitution, which makes federal law the supreme law of the land. The complaint avoids the fears of racial profiling that have outraged opponents of the law. Nonetheless, the U.S. Department of Justice has been harshly criticized by, among others, Arizona Gov. Jan Brewer who has alleged that “As a direct result of failed and inconsistent federal enforcement, Arizona is under attack from violent Mexican drug and immigrant smuggling cartels. Now, Arizona is under attack in federal court from President Obama and his Department of Justice.” Despite the warlike hyperbole, the Obama administration was unquestionably correct to seek in its attempt to ensure adherence to the rule of law.
A bit of legal history is in order. In the nation’s first century, the states in fact attempted to regulate migration. New York and Massachusetts, for example, charged a tax on each passenger brought by a ship into its jurisdiction, which the Supreme Court invalidated as infringing on Congress’s power to regulate interstate commerce. States also restricted the migration of the poor, criminals, and other undesirables into their jurisdictions. In the late 1800s, Congress decided to exercise the power to regulate immigration. Although the series of comprehensive immigration laws included provisions that have not withstood the test of time – such as those limiting Chinese immigration, the Supreme Court rejected challenges to them, declaring that Congress possessed “plenary power” over immigration.
The Court has offered several constitutional justifications for national regulation of immigration, including Congress’s power to regulate interstate commerce and to establish a “uniform rule of naturalization,” as well as the President’s power over foreign relations. The Court has consistently ruled that the U.S. government possesses the exclusive power to regulate immigration. This makes perfect sense. The nation needs a uniform national system for admission and removal of immigrants from the United States. States in certain areas have greatly limited powers. States cannot regulate interstate commerce; states cannot have their own foreign policy; states cannot have their own naturalization rules. Consequently, in the 1976 case of DeCanas v. Bica, the Supreme Court held that “Power to regulate immigration is unquestionably exclusively a federal power.”
Today, the Immigration & Nationality Act of 1952 is a thoroughly intricate, detailed, and comprehensive law dealing with the admission and removal of noncitizens from the United States. The U.S. Department of Homeland Security has been entrusted with the administration of the immigration laws, with Immigration & Customs Enforcement the primary agency entrusted with their enforcement.
With the failure of Congress to enact reform an immigration system that is characterized by people across the political spectrum as “broken,” a growing number of state and local governments have understandably become frustrated and attempted to take immigration law into their own hands. Cities as different as rural Hazleton, Pennsylvania and suburban Farmer’s Branch, Texas, have passed through ill-advised ordinances that seek to regulate immigration in ways that federal law does not, such as by prohibiting landlords from renting to undocumented immigrants. Some states, including Arizona, have entered the immigration thicket as well.
Supporters of the Arizona law claim that it simply mirrors federal immigration law. But the Arizona legislature in enacting SB 1070 “declare[d] that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona.” (emphasis added). Immigration enforcement undisputedly is the one and only immigration priority in SB 1070. In contrast, federal immigration law, as it must, balances many competing goals – admissions of family members, workers, and refugees, removals (and relief from removals), public safety and national security, foreign relations, and human rights, to name a few.
Even if justified, the frustration at the state and local levels cannot justify passing laws in conflict with U.S. immigration law. SB 1070 creates several new immigration crimes that are found nowhere in federal law for, among other things, noncitizens failing to carry proper documents, as well as for the employment of undocumented immigrants. By deputizing state and local law enforcement to enforce the immigration laws, SB 1070 seeks to increase enforcement of the immigration laws that the federal government does not want. The Arizona law has greatly increased tensions between the United States and Mexico and dominated the discussions between President Obama and Mexico’s President Felipe Calderon during his recent visit. And, as the call for economic boycotts make clear -- with next year’s Major League Baseball’s All Star game in Phoenix in jeopardy of a boycott, the negative interstate commerce impacts of Arizona’s foray into immigration are clear.
Perhaps the Arizona Legislature wanted to send a message to the U.S. government. California has some experience with that goal as it once sought to “send a message” to the U.S. government about immigration. In 1994, the voters by a 2-1 margin passed Proposition 187, which would have, among other things, denied a K-12 public education to undocumented students (contrary to a Supreme Court ruling) and required public officials to report suspected undocumented person to federal authorities. The Clinton administration received the message and increased enforcement efforts. Still, a federal court stuck down the initiative on the grounds that it was intruded on the power of Congress to regulate immigration. In the end, the U.S. government was right to attempt to halt Arizona’s effort to pass its own enforcement-only immigration law. The Department of Justice is doing precisely what the proponents of SB 1070 say should be the priority with respect to immigration law – enforcing the letter of the law.
In the end, the answer to those who support the Arizona immigration law is not to pass state laws that conflict with federal immigration law and its enforcement but, as the Constitution requires, to lobby Congress and to push for comprehensive immigration reform. By bringing United States v. Arizona, the Obama administration thus seeks to redirect the immigration debate to federal law-makers, which is exactly where the issue of immigration should be addressed.
Stay tuned! The district court in Phoenix will hold a hearing on Thursday, July 22.