Should we be concerned that the Ninth Circuit Court of Appeals refused to lift the stay against portions of Arizona’s immigration law? No. It’s merely a bump in the road on the way to the Supreme Court.
Given that the Ninth Circuit is the most liberal appeals court in the country, it’s no surprise that it would disregard the law in favor of the preferred liberal policy outcome. But since the Ninth Circuit loses almost every time one of its decisions gets to the Supreme Court (close to 90 percent of the time), I would actually have been more concerned if it had upheld the statute.
The key part of the Arizona law at issue, Section 2(B), provides that if a police officer has a reasonable suspicion that an individual who has been lawfully arrested, detained, or stopped for violation of any law or ordinance is unlawfully present in the United States, then a reasonable attempt must be made to determine the person’s immigration status. This implements 8 U.S.C. § 1373(c), in which Congress mandated that the federal government shall “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual.” In fact, Congress established and funds the Law Enforcement Support Center, whose only job is “to provide alien status determination support to federal, state, and local law enforcement on a 24-hours-a-day, seven-days-a-week basis.”
Another section of federal immigration law, 8 U.S.C. § 1357(g), allows the attorney general to enter into agreements with states to allow local law-enforcement officers to perform certain functions of immigration officers. But it specifically provides that no agreement is necessary for local law enforcement “to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States,” or to otherwise “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.”
Arizona’s legislation is perfectly in accord with these two provisions of federal immigration law. Yet as Ninth Circuit judge Carlos Bea points out in his partial dissent, the court’s majority minimizes 1373(c) and interprets 1357(g), which says, “Nothing in this subsection shall be construed to require an agreement . . . to communicate with the Attorney General,” as if it read, “Everything in this subsection shall be construed to require an agreement” before Arizona can check on the immigration status of an arrested individual.
This, Bea said, reminded him of the scene in Through the Looking Glass where Alice and Humpty Dumpty argue about the meaning of the word “glory.” Humpty Dumpty says, “When I use a word, it means just what I choose it to mean — neither more nor less.” Here, the Ninth Circuit Court has inverted the definition of the word “nothing” to mean “everything” — neither more nor less. The majority, led by Clinton appointee Richard A. Paez, was obviously annoyed by Bea’s apt chiding, and in an amusing footnote wrote that the majority “carefully considered the dissent” but chose not to respond “where the dissent has resorted to fairy tale quotes and other superfluous and distracting rhetoric.”
Bea also pointed out that the majority “mischaracterizes the limited scope of Section 2(B), misinterprets the Supreme Court’s cases on foreign relations preemption to allow any complaining foreign country to preempt a state law, and holds that the prospect of all 50 states assisting the federal government in identifying illegal aliens is — to Congress — an unwanted burden.” His most memorable line on complaining foreign countries: “We do not grant other nations’ foreign ministries a ‘heckler’s veto.’” Unfortunately, that is exactly what the Obama administration has done in helping the Mexican government interfere in U.S. domestic affairs.
Bea also dissents from the majority’s view that Section 6 of the Arizona law is preempted. Section 6 allows Arizona police to arrest a person if the officer has probable cause to believe the “person has committed any public offense that makes the person removable from the United States.” Supreme Court precedent recognizes the inherent authority of local police to enforce the civil provisions of federal immigration law — which is exactly what Arizona is proposing to do. As Bea points out, “familiar principles of dual sovereignty, as recognized by the Supreme Court, provide states with the inherent authority to enforce federal immigration law.” In fact, the majority “misreads the meaning of the relevant federal statutes to ignore what is plain in the statutes — Congress intended state and local police officers to participate in the enforcement of federal immigration law. Sections 2 and 6 do not conflict with this intent, and thus are constitutional.”
Unfortunately, Bea concurs with the majority in finding Sections 3 and 5(C) of the law unconstitutional. Section 3 punishes aliens who do not carry alien-registration documents as required by federal law, and Section 5(C) makes it unlawful for an illegal alien to apply for or solicit work. Bea argues that Section 3 infringes on the federal government’s uniform system of alien registration. However, he does not really explain what is wrong with adding a layer of state penalties for what is already a violation of federal law: the “willful failure to complete or carry an alien registration document.” There is no conflict or tension with federal law. The Arizona provision is simply an example of concurrent jurisdiction.
Bea believes that Section 5(C) conflicts with a perceived congressional intent to concentrate on going after employers who knowingly hire illegal aliens. However, the applicable federal law, 8 U.S.C. § 1324(a)(h)(2), only preempts states from imposing sanctions on employers — so Congress expressly chose not to preempt states from imposing sanctions on employees. In fact, under federal law, employees must “attest, under penalty of perjury,” that they are lawfully admitted and authorized to work in the United States. The Arizona provision thus does not conflict with federal law, nor does it “stand as an obstacle to accomplishment of the full purposes and objectives of Congress.” In fact, it helps further the strong federal policy of prohibiting illegal aliens from seeking employment. Again, adding a layer of state penalties helps achieve congressional intent.
The majority makes a very basic error. Federal preemption is based on the Supremacy Clause, which provides that only the Constitution, laws passed by Congress, and treaties ratified by the Senate are “the supreme Law of the Land.” The policy preferences of the president do not fall into this category.
In the final exchange between Alice and Humpty Dumpty cited by Judge Bea, Alice says, “The question is whether you can make words mean so many different things.” Humpty Dumpty replies, “The question is, which is to be master — that’s all.”
The Supreme Court is going to have to decide “which is to be master.” Is it Congress, which plainly and clearly outlined in the immigration laws it passed that states are authorized to help the federal government enforce federal immigration law? Or is it the Obama administration, which believes that its policy of non-enforcement should prevail and that — in direct conflict with federal law — states should be prohibited from helping the federal government?
As Humpty Dumpty says, “there’s a nice knock-down argument for you!”
— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation (www.heritage.org) and a former FEC commissioner.