Law and Border
From the July 4, 2011, issue of NR.


Their favorite argument to demonstrate “tension” with federal law is to declare that Congress intended for immigration laws to be enforced uniformly across the land. They claim that aggressively enforced state laws in places such as Arizona disrupt this uniformity, and therefore the courts should throw them out. But the Supreme Court emphatically rejected this argument, stating: “Congress expressly preserved the ability of the States to impose their own sanctions through licensing; that — like our federal system in general — necessarily entails the prospect of some departure from homogeneity.”

Perhaps most important, the Court also endorsed the constitutional doctrine of concurrent enforcement, on which Arizona, Alabama, and other states have relied in drafting their laws. If a state prohibits an activity that is already prohibited by federal law, then state and federal law are concurrent and no conflict can exist. The Supreme Court applied this doctrine and observed approvingly that “the Arizona law . . . trace[s] the federal law.”

In particular, the Supreme Court gave Arizona high marks for adopting the definitions and standards of federal law verbatim. “Arizona went the extra mile in ensuring that its law closely tracks [federal statutory] provisions in all material respects. The Arizona law begins by adopting the federal definition of who qualifies as an ‘unauthorized alien.’ . . . Not only that, the Arizona law expressly provides that state investigators must verify the work authorization of an allegedly unauthorized alien with the Federal Government, and ‘shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States.’”

This was by design. The same deference to federal definitions and federal determinations of immigration status also appears in Alabama’s Beason-Hammon Act, Arizona’s SB 1070, Missouri’s illegal-immigration act of 2008, Oklahoma’s illegal-immigration act of 2007, and just about every other properly drafted state or local immigration law on the books. It is therefore highly likely that these laws will withstand any legal challenge in the wake of Whiting.

But perhaps the best indication of how sweeping the Whiting opinion was came eleven days later, when the Supreme Court vacated the decision of the Third Circuit in Lozano v. City of Hazleton. In that case, the Third Circuit had struck down a municipal ordinance in Hazleton, Pa., prohibiting the hiring of unauthorized aliens by employers and the harboring of illegal aliens by landlords. The Supreme Court erased the Third Circuit’s decision and directed it to reconsider the case in light of Whiting. Importantly, the Supreme Court remanded the entire decision, not just the employment part, for reconsideration. In other words, although the law at issue in Whiting specifically concerned the employment of unauthorized aliens, the principles enunciated by the Supreme Court were applicable to any state or local law concerning illegal immigration.

In summary, the road ahead for state and local laws deterring illegal immigration looks very good — at least in court. Yet some Republicans in Congress seem determined to snatch defeat from the jaws of victory. Treating the states as nothing more than a proving ground for “real” reform at the federal level, they are willing to sell out Arizona and the other states in return for modest improvements to federal law.

Specifically, they have approached the pro-amnesty U.S. Chamber of Commerce to see whether a deal can now be reached for a bill to mandate E-Verify usage nationwide. The Chamber, long opposed to enforcement of immigration laws in the workplace, has demanded a heavy price in return for its assent — the removal of the states from the field.


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