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Supremes Gut Arizona Immigration Law

By David King Published: June 26, 2012

In a Supreme Court case about illegal immigration, we must start with the Constitution:

Article 1, Section 8 of the U.S. Constitution states that Congress shall have the power "To establish an uniform Rule of Naturalization." This grants the federal government the authority to establish uniform immigration laws for the United States. Section 1 of the 14th Amendment states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." From Article 1 and the 14th Amendment, it is established that no state has the power to make immigration laws that contradict federal law. This would clearly be unconstitutional.

Because the federal government retains authority over immigration law, it's important to know existing law on illegal immigration. That is too long for me to cover completely here, so I'll just borrow a one-liner from Wikipedia - "An illegal immigrant in the United States is a (non-citizen) who has entered the United States without government permission and in violation of United States Nationality Law, or stayed beyond the termination date of a visa, also in violation of the law."

It's an obvious point, but an important one. Illegal immigrants are in the U.S.  in violation of federal law. The question then becomes, can states enforce federal laws, or is that too only the domain of the federal government ?  In general, I'd say the answer to that question is yes, states can enforce federal law. As an example, we have federal laws against kidnapping. Does that mean a state without such laws couldn't  enforce federal kidnapping kidnapping laws ? It would be a pretty sad state of affairs if local police couldn't arrest a kidnapper because it's not their jurisdiction, though I'm sure the kidnapper would like it as he drove smilingly past hamstrung police officers.

Further, can states pass laws that agree with federal immigration law ? This could become problematic, because federal law is subject to change, but I don't see an exclusion against it either, though federal law would have to take precedence in illegal immigration.

This brings us to yesterday's Supreme Court ruling on Arizona's SB1070 law on illegal immigration. The Supremes knocked down three parts of the law and upheld a fourth part.

The upheld part, per Forbes (link 1 and link 2):

the portion of the Arizona law which garnered the most attention leading into this morning’s ruling– the ‘papers please’ provision which allows law enforcement officers to check up on whether someone is legally in the country or not—was not struck down by the Court. In a unanimous 8-0 decision on the issue (Justice Kagan recused herself from this case as she had been previously involved while serving as Solicitor General), SCOTUS held that the ‘papers please’ procedures are legitimately within the purview of Arizona law enforcement officers so long as they follow the limitations provided in the law.

Here, the SCOTUS affirmed the right of state and local authorities to enforce federal law per se, but that's as far as it went. The Court went with the Obama administration's argument the rest of the way.

Here's are the parts which were struck down:

The Arizona law had made it a criminal misdemeanor for someone who is not a US citizen to fail to complete and carry an alien registration document at all times. The Court ruled that this section of the law was preempted by federal law which does not require that anyone carry such a document with them. As such, it was improper to criminalize this behavior in light of federal law.

Also struck down was the part of SB1070 that made it a crime for illegals to fail to register with federal authorities, along with a third part that made it a crime for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor".

The Court majority opinion thus made it clear that states do not have the right to pass immigration laws which exceed the scope of federal law. I understand some of this…but.this is also where I begin to get confused…

Isn't it already against federal law for illegals to work in the U.S. without authorization ? Yes, it is. That's what the E-Verify program is all about. It's against the law for employers to hire unauthorized illegals in this country, so what did SB1070 do that was outside the scope of federal law in this area ? Last week, President Obama made the unilateral decision to grant work permits to certain illegals who came into this country when they were 16 years old or younger (Obama violated the Constitution by doing so, because that is the purview of Congress, not the President). This also illustrates that it was against the law for illegals to work here. SB1070 seemed to be supporting federal law rather than pre-empting it.

Illegals are also required by federal law to register with the federal government, so what law was SB1070 pre-empting in this area ? None that I can see.  We better go to the Court's opinion for clarification (sorry, I don't have a way to provide a link yet). Here's what Justice Kennedy wrote in his majority opinion:

"Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect…From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes…Congress has the power to pre-empt state law…In 1940…Congress added to federal immigration law a "complete system for alien registration". The new federal law…[did] punish an aliens failure to register but did not require aliens to carry registration cards…Federal law now includes a requirement that aliens carry proof of registration."

Okay, then what's the problem with SB1070 ? Kennedy continues:

"Arizona contends that [SB1070] can survive pre-emption because the provision has the same aim as federal law and adopts the same standards. This argument not only ignores the basic premise of field pre-emption-that States may not enter, in any respect, an area the Federal Government has reserved for itself-but is also unpersuasive on it's own terms."

This shoots down my kidnapping corollary, as the Constitution does not grant the federal government sole authority over kidnapping, as it does over immigration. 

Back to Kennedy:

"Even where federal authorities believe prosecution is appropriate, there is an inconsistency between [SB1070] and federal law with respect to penalties. Under Federal Law, the failure to carry registration papers is a misdemeanor. State law, by contrast, rules out probation as a possible sentence (and also eliminated the possibility of a pardon). These specific conflicts between state and federal law simply underscore the reason for field pre-emption."

Now I understand. SB1070 was a bridge too far in the majority opinion, not to mention that they are telling the states to butt out of the feds domain.

On to the employment of illegals:

"When there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass it's own laws on the subject, [but] Congress enacted IRCA as a comprehensive framework for "combating the employment of illegal aliens. The law makes it illegal for employers to knowingly hire…unauthorized workers. This comprehensive framework does not impose federal criminal sanctions on the employee side. Under federal law some civil penalties are imposed instead…Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment…[SB1070] would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens."

Kennedy has contradicted himself here. First, he said the states should butt out of the feds domain, and then he said the states may pass immigration laws if the feds haven't. You can't have it both ways. This is considerably less persuasive, in my opinion. Kennedy is basically saying, "yeah, it's against federal law for illegals to work here, but the federal government doesn't really feel like enforcing it, so the states can't either." Then what's the point of having the law in the first place ? And E-Verify, the program for employers to follow, is voluntary. Thus, we have no effective means of enforcing immigration law in the area of employment.

In summary, Arizona's SB1070 law was gutted. There is no way now for Arizona to enforce ANY laws against illegals. They can check the immigration status of suspected illegals if they have reasonable suspicion, but all they can do is report it to the feds. They can't arrest anyone for being in the country illegally.

All I can say is, our immigration system remains broken, as it has been for decades. The media is calling this a victory for the Obama administration, and it is (following a string of Supreme Court losses for the Obama administration),  but what has been won ? The only victors I see are those who enter this country illegally. Arizona illegals had a good day yesterday.
 

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