Defending Arizona
From the June 7, 2010, issue of NR.


In spite of the law’s narrow scope, Attorney General Holder has taken the extraordinarily unusual step of suggesting that the Justice Department will take action against the State of Arizona after it reviews the law. Presumably, the lawyers who conduct the review will actually read the text of S.B. 1070, and when they do, they will find precious little on which to base a legal challenge.

S.B. 1070 was drafted in the full expectation that the ACLU would sue, as indeed it has. In anticipation of a challenge, S.B. 1070 was designed to withstand any argument that the ACLU lawyers can throw at it — regardless of whether they happen to be working inside the Holder Justice Department or outside of it. Let’s consider their available arguments one by one.

Opponents of the law have been raising a hue and cry about racial profiling, but that argument is a non-starter. Because the initial legal challenge was filed before the law was actually applied, the challenge is a “facial” one — asserting that S.B. 1070 is unconstitutional on its face. Consequently, the challengers are basing their claims on speculation: They hypothesize that police officers might act in bad faith and violate the express terms of S.B. 1070.

The Supreme Court has held that such speculation cannot serve to strike down a law as unconstitutional. In the 1987 case of United States v. Salerno, the Court made clear that a “facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Here, Arizona need only point out that if its police officers follow the clearly stated terms of S.B. 1070, no racial profiling will occur.

The ACLU’s only remotely plausible argument is that the law is unconstitutional through preemption — meaning that legislation passed by Congress prohibits the State of Arizona from enforcing S.B. 1070. The problem here is that no such legislation exists. While controlling immigration is a job of the federal government, Congress has never enacted a statute that expressly bars states from assisting it in the manner contemplated by the Arizona statute. Without any express preemption to rely on, the challengers must resort to making a more difficult “implied preemption” argument. This is a claim that the Arizona law conflicts with federal law, and therefore interferes with the fulfillment of congressional objectives. However, the numerous judicial precedents supporting the Arizona law will make this an uphill climb.

The U.S. Supreme Court has long recognized that states can enact statutes to discourage illegal immigration without being preempted by federal law. In the landmark 1976 case of De Canas v. Bica, the Supreme Court upheld a California law that prohibited employers from knowingly hiring unauthorized aliens. The Court rejected preemption arguments, since “respondents . . . fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the [Immigration and Nationality Act] that Congress intended to preclude . . . state regulation touching on aliens in general.” States and cities can enact laws discouraging illegal immigration, and can assist the federal government in enforcing federal immigration laws in other ways, as long as their actions don’t conflict with federal law.

In the case of S.B. 1070, the ACLU will be hard-pressed to find any such conflict. Indeed, S.B. 1070 is a mirror image of federal law. The documentation provisions of the Arizona law penalize precisely the same conduct that is already penalized under federal immigration law: “In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code section 1304(e) or 1306(a).” Because S.B. 1070 matches federal law so precisely, it is protected by the legal doctrine of “concurrent enforcement.” As the Ninth Circuit, which covers Arizona, recognized in Gonzales v. City of Peoria (1983), “where state enforcement activities do not impair federal regulatory interests concurrent enforcement activity is authorized.”