Patchwork Immigration Laws and Federal Enforcement Priorities by Lauren Gilbert

    

Despite predictions after oral argument that the Court would uphold some if not all of the challenged provisions of Arizona’s S.B. 1070, the Court yesterday struck down 3 out of 4 of the provisions challenged by the U.S. government, while indicating that the fourth provision, § 2(B), the “show me your papers” provision, while not unconstitutional on its face, could be subject to an as applied challenge. The 5-3 decision, with Justice Kagan recused, was authored by Justice Kennedy and had Justice Roberts joining the majority, with Justices Scalia, Thomas and Alito concurring and dissenting in separate opinions.

Despite Arizona’s arguments that the challenged provisions were not preempted because they mirrored federal immigration law, the majority appears to have rejected mirror-image theory as well as the notion that Arizona was simply cooperating in enforcement. In striking down § 6, the provision allowing state officers to conduct warrantless arrests of persons deemed subject to removal, the Court wrote:

    "There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government."

Slip op. at 18. One highlight of the decision was the emphasis throughout on the relationship between the regulation of immigration and foreign policy concerns. This discussion was notably absent from the Ninth Circuit’s opinion, although it was the focus of Judge Noonan’s concurrence. It was also a focus of amici brief cited by the Court, including a brief filed by Argentina and another filed by former Secretary of State Madeleine Albright. Slip op. at 3. Heading off the argument in Justice Scalia’s dissent that individual states have the inherent sovereignty to control their borders, the Court writes, “It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States be able to confer and communicate on this subject with one national government, not the 50 separate states.” Slip op. at 3.

Furthermore, the Court utilizes standard preemption tools. It invokes both field and obstacle preemption principles in striking down §§ 3, 5(C) and 6. Reaffirming Hines v. Davidowitz, the classic 1941 decision overturning Pennsylvania’s alien registration law, it found that § 3 of S.B. 1070, which made it a state misdemeanor for a noncitizen to fail to register under federal immigration law, was field preempted, because, when it came to alien registration, Congress intended to preclude the states from “complementing federal law or enforcing additional or auxiliary regulations.” The majority raised concerns that if this provision were upheld, then “every state could give itself independent authority to prosecute federal registration violations...” Slip op. at 10.

In striking down § 5(C), the provision making it a crime for a noncitizen to solicit, apply or work without authorization, it looks at the text, structure and legislative history of the 1986 Immigration Reform and Control Act (“IRCA”) in determining Congressional purpose, rather than relying on the text of the express provision, as it did in Whiting. It finds that in passing IRCA, Congress made a “deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment,” Slip op. at 13, and that a state law criminalizing the workers themselves was an obstacle to the regulatory regime Congress had chosen. Slip op. at 15.

Similarly, regarding § 6, the provision allowing for warrantless arrests of removable aliens, it found that Arizona had attempted to give its own officers greater authority to enforce the immigration laws than federal immigration officers enjoyed. Federal law creates limited situations where state and local authorities can enforce federal immigration laws, such as pursuant to Section 287(g) agreements that provide for the certification and adequate training of state officers. By authorizing state officers to decide whether a noncitizen should be detained for being removable, Arizona violated the principle that such enforcement decisions should be left up to the federal government.

While the Court found that § 2(B), the “show me your papers” provision, was not unconstitutional on its face, it left open the possibility that it could be challenged as applied, particularly in situations involving racial profiling. Section 2(B) requires that state officers make a “reasonable attempt” to determine the immigration status of anyone they stop, detain or arrest, where reasonable suspicion exists that the person is unlawfully present. The Court interpreted this provision narrowly to only apply where state authorities detain an individual pursuant to an otherwise legitimate stop or arrest. It indicated that it would raise constitutional difficulties if § 2(B) were utilized to detain individuals solely for the purposes of verifying their immigration status. Furthermore, it would “disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.” Slip op. at 22.

The Court’s unanimous decision to uphold Section 2(B) of S.B. 1070 was heralded by supporters of S.B. 1070 as a victory for states’ rights. Despite clear language in the decision to the contrary, they argued that it affirmed state sovereignty and the power of the states to take at least some affirmative steps to control their borders, consistent with Justice Scalia’s logic. Even if ultimately Homeland Security was free to ignore their calls to enforce the immigration laws, this residual power to check immigration status not only gave the states a mechanism for highlighting federal agency failure but a way of continuing to instill fear in immigrant communities. President Obama, in a Statement released on Monday, while expressing satisfaction that several provisions of S.B. 1070 had been struck down, also was troubled by the decision to uphold Section 2(B):

    "I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like."

Another striking feature of this decision was that the liberal justices (with the exception of the recused Justice Kagan) joined with Justices Kennedy and Roberts in upholding Section 2(B) while striking down Sections 3, 5 and 6. It was a straight 5-person majority on all four provisions, rather than a plurality or split decision. It contrasted sharply with Chief Justice Roberts’ majority decision in Chamber of Commerce v. Whiting where the Court upheld Arizona’s licensing law on the basis that Arizona “had taken the route least likely to cause tension with federal law.” In that decision, Justice Roberts contrasted state laws “implicating uniquely federal areas of regulation” from those regulations that have “never been considered such an area of dominant federal concern.” He also emphasized that obstacle preemption had been found where “state actions directly interfered with the operation of the federal program”, thus suggesting a more limited approach to obstacle preemption analysis.

The Court’s decision shows deference to the federal government in its making of immigration policy and its enforcement of the immigration laws. It is consistent with the direction in which the federal government has been moving on these issues, including its recent policy regarding the exercise of prosecutorial discretion and its decision to grant deferred action to certain undocumented immigrant youth.

    "Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. ..... The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return."

Slip op. at 4-5.

Notwithstanding efforts by some to paint the decision as a victory for states’ rights, the Supreme Court’s decision in Arizona was largely a reaffirmation of federal supremacy with regard to the immigration power and a warning call to states to refrain from copycat laws. While it recognized Arizona’s frustrations with federal enforcement, it underscored that our history “is in part made of the stories, talents and lasting contributions of those who crossed oceans and deserts to come here”, and that Arizona may not pursue policies that undermine federal law. Slip op. at 25.

Lauren Gilbert is a Professor of Law at St. Thomas University in Miami Gardens, Florida, where she teaches Constitutional Law I & II and Immigration Law.