Earlier this week, I was invited to participate in an online debate on PolicyMic.com over the legal issues surrounding Arizona SB 1070. PolicyMic hosted the discussion with several legal scholars and think-tank scholars on how the Supreme Court should decide the case.
Here is my essay, cross-posted from PolicyMic.com:
The Supreme Court should affirm the court of appeal’s decision striking down four provisions of the Arizona immigration enforcement law known as S.B. 1070. The Arizona legislature’s stated – and impermissible – purpose is to pursue a state immigration policy of “attrition through enforcement” that both conflicts with, and undermines, U.S. immigration law and policy. S.B. 1070 therefore violates the constitutional mandate that federal law is the supreme law of the land.
Supreme Court precedent requires the affirmance of the Ninth Circuit’s ruling. For well over a century when Congress first passed comprehensive immigration legislation, it has been firmly established that the federal government has the exclusive reigns over immigration and nationality law. That makes perfect sense given that the regulation of immigration can have national impacts and foreign policy repercussions. As the Court stated unequivocally in De Canas v. Bica (1976), “[p]ower to regulate immigration is unquestionably exclusively a federal power.”
Federal preemption of state immigration enforcement laws like Arizona’s S.B. 1070 makes perfect sense. The U.S. government should be able to enforce the immigration laws without interference from the states. A state cannot, as Arizona sought to do, pursue its own state immigration enforcement policy. Such a patchwork approach to immigration law, with possibly 50 different policy variations, can allow the nation’s relationships with foreign countries to be held hostage to a rogue state or states.
Upholding the court of appeals ruling is consistent with the Supreme Court’s 2011 decision in Chamber of Commerce v. Whiting, which rejected a challenge to an Arizona law allowing the state to strip the licenses of business that employ undocumented immigrants. Federal immigration law expressly allows the states to use its licensing schemes in the manner that Arizona did in the law at issue in Whiting. S.B. 1070 is much broader in scope than a mere licensing law and claims to create an entire state immigration policy law. In addition, in Whiting, the Chamber of Commerce, not the U.S. government, claimed that the state had infringed on the federal power to regulate immigration. Here, the U.S. government claims that Arizona’s law intrudes on federal power – and has damaged national interests by provoking protests made by the Mexican government as well as governments across Latin America. Needless to say, a claim of the infringement on federal power is more powerfully made by the federal government than the Chamber of Commerce.
Serious civil rights concerns lurk in the background of the legal arguments in Arizona v. United States. Namely, Latina/os and immigrants fear that S.B. 1070’s mandate that state and local police check the immigration status of persons whom they “reasonably suspect” are undocumented, will result in racial profiling at levels never before seen. Those familiar with the civil rights record of Maricopa County (Arizona) Sheriff Joe Arpaio know that this fear is real.
To justify S.B. 1070, Arizona political leaders contend that the U.S. government is failing to enforce the immigration laws. It is hard to contend, however, that the Obama administration is not enforcing the law when it has deported more immigrants than any other President in U.S. history (nearly 400,000 last year). In any event, the frustration with the current immigration system is for Congress, not the states, to address through comprehensive – and national – immigration reform.
(King Hall's Professor Gabriel "Jack" Chin and Professor Emeritus Bill O. Hing contributed to the debate, as well. You can read their entries, respectively, here and here.)