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Preemption and Prosecutorial Discretion: A Response to Andy McCarthy



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I am delighted that Andy McCarthy has responded to my uncertainty about Arizona’s S.B. 1070; I could not hope for a more knowledgeable and eloquent interlocutor, one whose command of legal matters is without peer.

I had wondered whether S.B. 1070 could in fact pose a constitutional problem in the following situation: Arizona law-enforcement officials inquire with ICE whether someone they have stopped is in the country illegally. ICE answers in the affirmative, but tells the Arizona officials that it is not interested in prosecuting or deporting that particular alien — in essence, telling Arizona to let him go. Nevertheless, Arizona fines or incarcerates the illegal alien for violating the new state-law version of the federal alien-registration law (which requires aliens to carry their immigration papers). In such a case, I speculated, perhaps Arizona’s decision to penalize the alien conflicts with, and is thus preempted by, federal authority over immigration matters.

Andy vigorously responded that preemption doctrine applies to Congressional laws, not to the executive enforcement of those laws. Since nothing in the federal statutory scheme regarding immigration conflicts with S.B. 1070 — or with Arizona’s decision to enforce S.B. 1070’s alien-registration section — such enforcement on Arizona’s part is not preempted by federal law.

If I am reading Andy correctly, he seems to draw a bright line between a law and its execution; I am not sure that I agree. Law has no existence without the myriad decisions necessary to its enforcement; a law and its enforcement are two sides of the same coin. The president is charged with the constitutional duty of taking “care that the laws be faithfully executed,” but inherent in that duty, as Andy readily notes, is an inevitable dose of prosecutorial discretion. Such prosecutorial discretion is present in nearly all law enforcement, to the frequent chagrin of affected parties. A police officer may simply pour out the Colt 45 that a rowdy loiterer is drinking, even though local residents would prefer that the loiterer be arrested and prosecuted for an open-container violation. The cops in turn fume when district attorneys ignore the good arrests that they have brought in for car break-ins, drug-dealing, or aggressive panhandling. But the cop who chooses not to arrest and the DA who chooses not to prosecute are as much a part of the law as the legislators who passed the criminal statutes they work under.

Congress did not mandate that every last illegal alien be deported; it set the conditions for legal entry into the country and the penalties for violating those conditions. Congress left it to the discretion of the president how he would marshal his finite resources in executing the various goals of the immigration system. In so exercising his discretion, a president has not entered into some extra-constitutional “political” territory, as Andy seems to suggest; he is operating within his constitutional legal powers. Likewise, members of Arizona’s executive branch will have discretion in enforcing S.B. 1070; they are not taking the law into some distinct political realm in so doing, but are making the law a reality.

As Andy might frame the question: Does the preemption doctrine cover executive prosecutorial discretion and other policy decisions, or just the plain language of statutes?

Outside the immigration field, there are judicial rulings that treat executive discretion in enforcing the law — what Andy refers to as “politics,” if I am reading him accurately — as included within the supremacy clause. Crosby v. National Foreign Trade Council, 630 U.S. 363 (2000), struck down a Massachusetts boycott of companies that trade with Burma. The Court held that the state boycott conflicted with the president’s discretion over congressional economic sanctions against Burma, and that the president should speak unilaterally for the country in this foreign-policy matter. Buckman v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), held that a state tort case against a medical-device manufacturer was preempted by the FDA’s authority over medical-device approvals. The injured plaintiffs had argued that the defendant manufacturer had used fraud against the FDA to obtain approval for its device; the Court ruled that only the FDA could bring such fraud claims against manufacturers. The FDA needed to preserve its discretion over which claims to pursue, said the Court; allowing private plaintiffs to bring fraud cases could overtax its resources. Both cases can be distinguished from the immigration issue and from S.B. 1070, of course. Nevertheless, Crosby and Buckman have at least some bearing on whether executive discretionary policy falls within the ambit of preemption doctrine.

Applied to the immigration field, the question becomes: If the president decides not to enforce the immigration laws against this particular illegal alien or even against most illegal aliens, are the states free to prosecute those same aliens under a bootstrap state version of federal law? The answer to me is not obvious. The prospect of 50 different prosecutorial regimes for immigration violations is not unproblematic. As much as I believe that immigration law should be enforced much more vigorously than it currently is, such a piecemeal system of state-level immigration regimes could arguably conflict with the federal interest in speaking with a single, national voice when it comes to immigration matters.

To be sure, there is case law aplenty acknowledging that the states do have authority to regulate and criminalize matters that bear on immigration.

De Canas v. Bica, 424 U.S. 351 (1976), upheld California’s labor code banning the knowing employment of illegal aliens when such employment hurts lawful resident workers. (Justice Brennan’s opinion stands as a reminder of a lost world, when liberals cared more for the rights of workers than for multiculturalism: “Employment of illegal aliens in times of high unemployment,” he wrote for a unanimous court, “deprives citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions. These local problems are particularly acute in California in light of the significant influx into that State of illegal aliens from neighboring Mexico.” You couldn’t find a labor-union president today who would utter such verboten ideas.)

But Justice Brennan stressed that California’s labor code was an exercise of the state’s police power over employment relations within the state; it was not a “regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” (The “conditions under which a legal entrant” — much less an illegal one — “may remain” conceivably extend to enforcement policy.) Unlike other state statutes regarding alien registration and sedition, which the Court had found were preempted by federal immigration policy, in the present case, wrote Justice Brennan, “there is no indication that Congress intended to preclude state law in the area of employment regulation.”

S.B. 1070’s section 3 (which adopts and criminalizes the federal registration scheme), however, and its enforcement lie squarely within the central core of immigration law: determining who is in the country legally and how to respond to immigration violations.

Thus far am I on the fence regarding S.B. 1070’s section 3. When I read the Justice Department’s brief, however, I fall back into Arizona’s camp, so mealy-mouthed and deceptive is its argumentation. The “competing [immigration] objectives” that DOJ lists as disrupted by S.B. 1070 do not in the main conflict with S.B. 1070 at all. Those interests include, according to the Justice Department: “facilitating trade and commerce; welcoming those foreign nationals who visit or immigrate lawfully and ensuring their fair and equitable treatment wherever they may reside; responding to humanitarian concerns at the global and individual levels; and otherwise ensuring that the treatment of aliens present in our nation does not harm our foreign relations with the countries from which they come or jeopardize the treatment of U.S. citizens abroad.”

Obviously, S.B. 1070 does not interfere with trade and commerce nor with welcoming legal immigrants and visitors. I would hope that it would not conflict with a “humanitarian” dispensation for an illegal alien, but if such humanitarian relief is discretionary on the part of the executive, I’m not sure where Andy would come out on the question. If ICE said: “Hands off that illegal: he’s cooperating with us against a drug kingpin,” or, “Our feminist agenda dictates that we want to protect this allegedly battered woman against her brutish machismo partner back in Mexico,” and Arizona responds: “Tough, we’re locking these folks up anyway; what part of ‘illegal’ don’t you understand?” I’m not sure where Andy would come out.

The Justice Department is correct that S.B. 1070 has had foreign-relations repercussions. Mexico has thrown a fit in regards to S.B. 1070. So what else is new? Every concerted effort to enforce our immigration laws produces a hysterical reaction among Mexican officials, who regard unimpeded entry into the U.S. by Mexican citizens as close to a birthright (even though those same officials periodically pay lip service to the patent legitimacy of our immigration regime). As Arizona’s brief in the S.B. 1070 lawsuit points out, the Obama administration’s immediate, unqualified, and wholly inaccurate smearing of S.B. 1070 as a violation of human rights hardly contributed to a fair reception of the law in international circles. Nevertheless, as nauseating and hypocritical as Mexico’s reaction to S.B. 1070 is, it is indisputable that Arizona’s action has affected international relations, which are an executive branch responsibility. “So what?” one may well answer; “it has done so through 100 percent legitimate means.” A fair point; I’m undecided on this matter. We certainly don’t want to be held hostage to Mexico’s tantrums.

Here are two other questions that I am not certain about: Does it matter why the executive branch is not enforcing the law, and how much of a burden should it meet in justifying its non-enforcement? The closest the Obama administration’s legal papers come to acknowledging its wholesale amnesty for most illegal aliens is the coy statement: “In exercising its significant enforcement discretion, the federal government prioritizes for arrest, detention, prosecution, and removal those aliens who pose a danger to national security or a risk to public safety.” Unspoken corollary: Everyone else gets a free pass. Now what if the reason for such “prioritization” is simply resource constraints? “We’d like to go after everyone,” the federal government might say, “but we just don’t have the manpower to do so.” In that case, it might welcome S.B. 1070. “We don’t have the capacity to process this or that garden-variety illegal, but if you, Arizona, want to stick him in your local jail for his lack of papers, be my guest.” But what if the administration’s non-enforcement policy results from an affirmative preference for not enforcing the law against most illegals — should that affect the legitimacy of Arizona’s decision to undertake a more vigorous enforcement regime?

Of course, the Obama administration assiduously avoids acknowledging its blanket non-enforcement policy; the highly specific individual examples it provides of illegals whom it might choose to exempt from the law have no bearing on the administration’s industrial-strength, undiscriminating de facto amnesty.

So the administration’s lack of honesty with regards to its actual immigration policy does not earn it any points. Still, despite its bad faith, and despite Andy’s forceful and well-reasoned argument for why executive policy should enjoy no constitutional protection, I don’t think that this is a cut-and-dried matter.



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