Today, eight justices of the Supreme Court (Associate Justice Elena Kagan, formerly President Obama’s solicitor general, has recused herself) will hear oral arguments in The United States v. Arizona, a case that will decide whether the Obama administration may impose its strategic neglect of federal immigration laws on the states, or whether instead the states may use their law-enforcement resources to “do the jobs
Americans the Justice Department won’t do.”
In April 2010, Arizona governor Jan Brewer signed the Support Our Law Enforcement and Safe Neighborhoods Act into law. The tough, commonsense immigration-enforcement package that would come to be known simply as S.B. 1070 had passed comfortably in both houses of Arizona’s legislature and enjoyed broad public support. But in July of 2010, the Obama Justice Department asked a federal court for, and was granted, an injunction against enforcement of major provisions of the law, including the requirement that police make an effort to ascertain the immigration status of lawfully detained individuals when there is reasonable suspicion they are in the country illegally; the complementary requirement that immigrants carry federal immigration papers or be subject to misdemeanor charges; and the imposition of penalties on illegal immigrants who improperly seek work. In April of 2011, the Ninth Circuit Court of Appeals added to the annals of its infamy by upholding this injunction, and in December the Supreme Court agreed to hear an appeal.
The conflict centers on whether the aforementioned provisions of S.B. 1070 preempt federal law on a matter of federal prerogative — in contravention of the Supremacy Clause in Article VI — or whether, as the state of Arizona has argued, they merely complement that law. But we can save the Court the trouble. There is simply no plain-language reading, either of the Arizona law or of federal immigration code, that renders the one incompatible with the other. The Justice Department’s case rests instead on a willful misreading of federal statute, and it reinterprets the requirement that states not preempt federal immigration laws as a requirement that states harmonize their own laws with federal immigration enforcement practices —
or in this case, with the lack thereof.
Federal courts have generally held that although setting immigration law is the exclusive domain of the federal government, the states can and indeed should play a role in enforcing that law. For example, in United States v. Vasquez Alvarez (1999), the Tenth Circuit saw “a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws” and a “preexisting general authority of state or local police officers to investigate and make arrests for violations of . . . immigration laws.” The Fifth Circuit similarly noted in Lynch v. Cannatella (1987) that “no statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation’s immigration laws.” And in Plyler v. Doe (1982), Justice William Brennan, writing for the majority in an otherwise pro-open-borders opinion, held that “despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.”
This is all S.B. 1070 does. Let us take each of the enjoined provisions separately. Section 2(B), arguably the most controversial, requires that police officers who have lawfully arrested, detained, or otherwise stopped persons for a violation of any law or ordinance take reasonable measures to ascertain the immigration status of those persons should there be a reasonable suspicion they are here illegally. The Justice Department has argued, and the lower courts have agreed, that this unjustly singles out aliens as a group for discrimination and surveillance. But the provision is aimed specifically at aliens already suspected of breaking the law. U.S. code requires aliens to be properly registered with the federal government, and it already commands federal authorities to respond to any inquiries “by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual.” So it stands to reason that local authorities with custody of a suspected illegal alien (who may have committed one of the deportable infractions codified in federal law, to boot) have the investigative and enforcement resources to confirm that alien’s status.