Arizona v. United States: The tail wagging the dog on regulating immigration enforcement

The following is an essay for our symposium on Arizona v. United States by Margaret Stock, adjunct professor at the University of Alaska Anchorage and Counsel to the firm at Lane Powell PC.  Ms. Stock has written many articles and testified before Congress on issues relating to US immigration law, and has debated immigration topics at numerous venues around the United States.

 

On April 23, 2010, the state of Arizona made national headlines when its governor signed into law the Support Our Law Enforcement and Safe Neighborhoods Act, which had been introduced originally as Arizona Senate Bill 1070 (and was subsequently modified by Arizona House Bill 2162).  S.B. 1070 is a very broad measure that, among other things, makes it a crime for an unauthorized immigrant to fail to carry an immigration registration document or to try to work without authorization from the federal government. The law was scheduled to go into effect on July 29, 2010, but the United States sued to enjoin it, and the U.S. District Court in Arizona responded by issuing a preliminary injunction against the four most controversial provisions in the law, including Section 3, the registration section, and Section 5(C), which criminalizes unauthorized work.  The issuance of that injunction was later upheld by a three-judge panel of the Ninth Circuit Court of Appeals, with all of the judges agreeing that Sections 3 and 5(C) were preempted by federal law.  The case now heads to the Supreme Court with Arizona having lost on the key issues at both district court and appellate court levels.  The Supreme Court is not likely to reverse because – despite a recent high court nod to the concept of immigration federalism – the Court is not inclined to ratify a state attempt to tell the federal government how to manage immigration enforcement, particularly where Congress has spoken on the exact issue.  The fundamental issue underlying the dispute is simply this: Can a state unilaterally change federal government policies in an area of traditional federal supremacy?

 

Of course, Arizona claims that it is doing no such thing.  Rather, says Arizona, it is merely trying to “help” federal authorities, who – thanks to Congressional unwillingness to fund full immigration enforcement – lack the resources to enforce U.S. immigration laws by themselves. Indeed, Kris Kobach, principal author of S.B. 1070, has  argued that state law enforcement officials can be a “force multiplier” for the federal government’s immigration enforcement efforts. Kobach is correct that the federal government has traditionally sought some assistance from states in enforcing immigration laws, but he has missed the point that federal authorities only welcome such assistance when it is subject to federal direction and control.  Arizona’s S.B. 1070 goes well beyond the traditional boundaries of Federal and State immigration cooperation – so much so, in fact, that the United States took the unusual tactic of suing to enjoin the law.  In bringing the battle to the Supreme Court, Kobach and Arizona have failed to appreciate that S.B. 1070 is much more likely to impede, rather than enhance, federal enforcement objectives.  Where a state seeks to hinder federal law enforcement in an area of nearly exclusive federal jurisdiction, the United States Supreme Court is not likely to ratify the state’s efforts.  In fact, the Court’s extensive preemption jurisprudence grew out of past state attempts at similar efforts. A passing interest in resurgent federalism principles by a few Justices is not likely to halt that centuries-old trend.

 

Instead, the Court is likely to conclude that while the states and the federal government may work together cooperatively to enforce U.S. immigration laws, such efforts must be directed and managed by the federal government to complement federal policies and priorities.

 

In defending the federal lawsuit, Arizona has argued that S.B. 1070 is a permissible attempt to engage in concurrent enforcement of federal law because S.B. 1070 only criminalizes behavior that is already unlawful under federal law.  In fact, however, the Arizona law criminalizes much behavior that is only a civil violation under federal law.

 

In seeking a preliminary injunction against the law, the federal government argued that Congress has enacted a comprehensive regulatory framework over immigration matters, and the “Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.” The government has indicated that through its law, Arizona seeks to divert limited federal immigration enforcement resources to Arizona and away from other states.  The federal government has said that it, not Arizona, must be able to decide its enforcement priorities.  The government has also argued that immigration law is extremely complex, and by failing to recognize that complexity, Arizona’s law will inevitably harm U.S. citizens and foreigners who are lawfully present in the U.S.  The federal government noted, for example, that Arizona’s law requiring immigrants to carry documents fails to recognize that not all lawfully present immigrants are given documentary proof of their status by federal authorities.  Overall, the federal government argues, Arizona’s law is preempted by Congress’s enactment of a complex scheme of enforcement of immigration laws, some of which conflict with Arizona’s new mandates.

 

For more than a hundred years, the U.S. Supreme Court has held that the federal government has broad and exclusive power to regulate immigration. The power to regulate immigration is not expressly enumerated in the U.S. Constitution, but the Supreme Court has described the immigration power as a plenary power inherent in the sovereignty of the United States.  State and local laws that attempt to regulate immigration may violate the Supremacy Clause of the U.S. Constitution and if so, are preempted by federal law.

 

Congress has not specifically barred the states from making it a state crime to violate Federal immigration law, but preemption doctrine does not require that Congress always expressly act to prohibit the states from legislating in an area of traditional federal expertise; it can also include “conflict preemption” and “field preemption.” Several provisions of Arizona’s law – including the provisions making it a crime not to carry registration documents or to seek work when one does not have authorization to work – directly conflict with federal law. There is also a very strong argument that Congress has so comprehensively regulated in the field of immigration enforcement that Congress has left no room for states to exceed the specific role identified for them in federal statutes.

It is likely that Arizona’s law will fail under both the “conflict” and “field” preemption doctrines.  S.B. 1070’s attempt to criminalize unauthorized workers who seek employment is likely preempted under “field preemption” doctrine; the test there is whether Congress intended to oust the States completely from legislating in an area.  The Supreme Court previously allowed state regulation of the employment of unauthorized workers, but only in a case that arose before Congress legislated in this area.  Under the Immigration Reform and Control Act of 1986 (IRCA), Congress amended the Immigration and Nationality Act to include a complex employer sanctions scheme, civil rights protections, and preemption language. In fact, 8 U.S.C. § 1324a(h)(2) expressly preempts any state or local law from imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or refer or recruit for a fee for employment, unauthorized aliens.  Congress also chose not to criminalize the act of the workers in seeking employment, which Arizona now seeks to do.

The rest of the enjoined provisions likely fail under the “conflict preemption” doctrine.  In striking down a state system of alien registration, the Court in Hines v. Davidowicz stated the applicable test was whether the State system was an “obstacle to accomplishment” of the goals of the Federal system.  As explained by Justice Hugo L. Black, federal power over this area of law is supreme:

That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court.

 

Congress has not criminalized all violations of US immigration law, and has even authorized immigration benefits for certain unlawfully present immigrants – for example, those who are victims of human trafficking.  Most immigration law violators are not prosecuted criminally by federal authorities; instead, Congress has created an extensive administrative law system to handle immigration violations.  Presumably, Congress’s decision to process most immigration violators through the civil administrative immigration system reflects Congressional recognition that criminalizing immigration violations would overburden the Article III federal courts and the criminal defense and prosecution resources of the federal government.  Criminal defendants, after all, are entitled to the full array of due process protections, while civil immigration “respondents” get much less due process—including, among other things, “in absentia” deportation orders, a limited right to counsel, lesser evidentiary protections, and a much lower prosecutorial burden of proof.

 

Under S.B. 1070, Arizona has chosen to criminalize all immigration violations, including those that are civil violations under federal immigration law.  For example, Arizona’s law criminalizes the act of being present in Arizona without being authorized under federal immigration law to be present in the United States, but being present without authorization is only a civil violation under federal law.  Normally, someone who is present without authorization – such as a person who overstays her permission to be in the United States – would not be charged with a crime by federal authorities, but would merely be ordered to appear before an administrative law judge.  If such a person is present in Arizona when S.B. 1070 goes into effect, however, that person will be charged under Arizona state law with a crime; she will be booked into the Arizona state jail system and provided with a defense attorney if she cannot afford one; that attorney must also – under the recent Supreme Court case in Padilla v. Kentucky– provide the person with expert advice as to the immigration consequences of the Arizona criminal conviction.  An Arizona state prosecutor must prosecute the case, which may involve determining whether the person is “removable” under federal immigration law; the prosecutor must also prove beyond a reasonable doubt that the person has violated federal immigration law, a matter that will require Arizona prosecutors and defense lawyers to become immigration and citizenship law experts.  Once provided with defense counsel, the defendant may also find out that he is really a United States citizen or otherwise entitled to apply for immigration benefits, thus mooting the state prosecution (and potentially giving the person a cause of action for damages for wrongful prosecution).

 

Congress has created a complex system of civil and criminal immigration laws that are legendary for their variety and complexity.  The Department of Homeland Security, the federal agency primarily charged with enforcing this complex code, has generally lacked the full resources necessary to enforce federal law to the letter, and has accordingly adopted a strategy of prioritizing its efforts so as to concentrate on the worst immigration offenders.  DHS uses a variety of civil and criminal tools to implement that strategy. To supplement its efforts, the Department has long sought assistance from state and local authorities—but only when the federal government has been able to direct and control those efforts.  By creating mandatory state criminal sanctions for even the most minor civil immigration violations, Arizona’s foray into immigration enforcement is likely to disrupt federal immigration enforcement efforts, creating a surge of immigration cases in the civil immigration and federal criminal court systems.  If other states copy Arizona’s law, the resulting tidal wave of cases could completely overwhelm federal resources.  Given these practical realities, it is understandable that the United States has chosen to seek an injunction against the Arizona law.  Rather than being a “force multiplier,” Arizona’s law would impose an even greater burden on the already overwhelmed federal immigration system, threatening to become a “ball and chain” that pushes the system to complete dysfunctionality.