Cross-posted from ImmigrationProf Blog.
Commentators have remarked that the Court’s decision in Arizona v. United States could be one of the most significant immigration decisions in decades. Oral arguments are scheduled for April 25. It is difficult to predict the outcome, especially with Justice Kagan recusing herself. In any event, some context is necessary to understand the possible ripple effects of a decision in the case.
For several years, Congress has at various times considered proposals for comprehensive immigration reform. Reform proposals have failed on a number of occasions, even though both Democrats and Republicans agree that the current immigration system is nothing less than “broken.” The Immigration Nationality Act of 1952 (INA), forged in the era of the Cold War, understandably reflected Cold War concerns. Although amended regularly by Congress in the last half-century, including in a major overhaul in 1986 (the Immigration Reform and Control Act), the INA remains the foundation of the current immigration system.
President Obama has advocated “comprehensive immigration reform.” Such reform by most accounts includes increased enforcement measures, a path to legalization for undocumented immigrants, a possible guest worker program, and the so-called DREAM Act to allow undocumented college students access to a public university education. To convince nay-sayers of their good faith, the Obama administration has aggressively pressed immigration enforcement, annually setting all-time records – nearly 400,000 last year -- for the removal of noncitizens from the United States. Some of the programs, such as Secure Communities, which requires state and local law enforcement to cooperate with federal authorities in immigration enforcement, have contributed to the deportation records and has generated considerable controversy.
With Congress unable to enact reform, state legislatures have passed immigration enforcement laws at a record-setting pace. The stated aim has been to encourage undocumented immigrants in no uncertain terms to “self-deport.” Political leaders who support such laws claim that the U.S. government has “failed” to enforce the immigration laws.
Arizona’s S.B. 1070, passed in 2010, struck a raw nerve, receiving worldwide attention (including protests by the Mexican government) and even calls for an economic boycott of the state. In 2011, Alabama, Georgia, and South Carolina all passed strict immigration enforcement laws. See United States v. Bentley, 813 F. Supp. 2d 1282 (N.D. Ala. 2011), appeal pending; Georgia Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011), appeal pending; Complaint, United States v. Haley, No. 2:11-CV-02779 (D.S.C. filed Oct. 31, 2011).
Besides reacting to Congress’s failure to enact reform, the states were responding in part to unsettling demographic change. In the pursuit of agricultural and other jobs, Mexican migrants were moving into states that previously had seen relatively few of them. Critics contend that the laws had nothing to do with immigrants and everything to do with increasing numbers of people of Mexican ancestry moving into the states.
The U.S. government challenged the Arizona’s S.B. 1070 as well as its Alabama and South Carolina counterparts. The challenges are primarily founded on the U.S. Constitution’s Supremacy Clause, which makes federal law the “supreme law of the land.” U.S. CONST., ART. VI, cl. 2. The U.S. government specifically claims that the state immigration laws impermissibly intrude on the federal power to regulate immigration. The U.S. Court of Appeals for the Ninth Circuit (641 F.3d 339, 346-54 (9th Cir. 2011)) struck down four core immigration enforcement provisions of Arizona’s S.B. 1070.
Many critics of the state immigration laws are less worried about state intrusion on federal power over immigration and more concerned that the laws would allow encourage discrimination against Latinos, including lawful immigrants and U.S. citizens. Specifically, the Arizona law (as well as the others) would require state and local law enforcement officers to verify the immigration status of person who they had “reasonable suspicion” were undocumented. Some observers claimed that it would increase racial profiling of Latinos. Reaching a different conclusion from the Ninth Circuit in United States v. Arizona, a district court in Alabama upheld the Alabama immigration enforcement law’s requirement that state and local police check the immigration status of persons, United States v. Bentley, 813 F. Supp. 2d 1282 (N.D. Ala. 2011). The obvious question posed by civil rights advocates is whether “foreign-looking” people, especially Latinos, will bear the brunt of the mandatory immigration checks. Racial profiling in law enforcement, including immigration enforcement, is an evil that the nation has long sought to remedy, but has proven extremely difficult to eradicate.
To this point, the Supreme Court has not been altogether clear on the role that states can play in the enforcement of the federal immigration laws. In De Canas v. Bica, 424 U.S. 351, 354 (1976), the Court stated that the “[p]ower to regulate immigration is unquestionably exclusively a federal power”; although that language sounds clear, the Court proceeded to uphold a California law allowing for the imposition of sanctions on the employers of undocumented immigrants. (emphasis added). More recently, in Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1974 (2011), the Court reiterated federal supremacy (“Power to regulate immigration is unquestionably . . . a federal power.”) over immigration regulation but refused to disturb an Arizona law that allowed the state to strip the licenses of businesses that employ undocumented immigrants.
In sum, there is considerable uncertainty today about the extent of the power of the states to participate in immigration enforcement. Despite the uncertainty, states have not been inhibited from passing their own immigration enforcement legislation.
The Supreme Court in Arizona v. United States has the opportunity to provide guidance to the nation on the contours of state power over immigration. The Court’s decision thus could affect the efforts of many states to “assist” the U.S. government in enforcing the immigration laws. Besides addressing issues concerning federal versus state power over immigration, Arizona v. United States could directly or indirectly address the potential civil rights consequences on Latinos and immigrants of the state immigration enforcement laws. It is both sets of concerns that have contributed to dozens of amicus briefs filed in the case as well as the considerable public attention that the case has – and will – receive.
