Mirror image theory in state immigration regulation

The following is an essay for our symposium on Arizona v. United States by Carissa Byrne Hessick, professor at the Arizona State University Sandra Day O’Connor College of Law.  Professor Hessick’s work on Arizona’s S.B. 1070 has been referenced by the Wall Street Journal and the Economist, and she is currently working on a volume about the role of states in immigration policy and enforcement.

If the United States Supreme Court grants certiorari in Arizona v. United States, its resolution of that case may prove quite important, not only for the field of immigration law but also for the broader field of federalism.  As anyone following the case knows, the Court will have to decide whether a comprehensive Arizona immigration statute –  S.B. 1070 – is preempted by federal law.  Federal preemption cases are hardly unique; the Court has decided a significant number of such cases in recent terms.  Indeed, just this past Term, the Court decided whether another Arizona statute creating licensing sanctions for employers who knowingly employ unauthorized aliens was preempted by federal law.  (In a five-three decision, the Court held that the Arizona statute fell within a savings clause of the federal Immigration Reform and Control Act, and thus was not preempted.)

Preemption cases often turn on close parsing of the relevant federal statute.  United States v. Arizona will undoubtedly involve such parsing of the Immigration and Nationality Act and the Immigration Reform and Control Act.  In addition, however, this case presents a broader theoretical question about state regulation in otherwise federally preempted fields (such as immigration).  In particular, this case raises the question whether, in the absence of any congressional statement on the issue, state governments possess “the authority to criminalize particular conduct concerning illegal immigration, provided that they do so in a way that mirrors the terms of federal law.” This theory of state authority, sometimes referred to as the “mirror image” theory of cooperative state enforcement, formed the basis of the Arizona State Legislature’s decision to enact S.B. 1070.  One of the authors of S.B. 1070, former professor and now Kansas Secretary of State Kris Kobach, has championed the mirror image theory, explaining that because “immigration is a field in which the federal government enjoys plenary authority under Article I of the U.S. Constitution, state statutes must be carefully drafted to avoid federal preemption.”  In particular, Kobach counsels states that in order to “avoid preemption: (1) the statute must not attempt to create any new categories of aliens not recognized by federal law; (2) the statute must use terms consistent with federal law; and (3) the statute must not attempt to authorize state or local officials to independently determine an alien’s immigration status, without verification by the federal government.”

The mirror image theory of state immigration enforcement has gained significant support.  It has sparked immigration legislation in a number of states, including Alabama, Colorado, Florida, Oklahoma, Missouri, South Carolina, and Utah.  And it has been trumpeted in support of S.B. 1070 and other similar laws by prominent commentators, such as Rush Limbaugh and George Will, as well as federal lawmakers.

Although it has gained increasing traction in the public debate over immigration, the mirror image theory is not universally accepted.  In a forthcoming article in the Duke Law Journal, Professors Jack Chin (University of California Davis) and Marc Miller (University of Arizona) explain that the mirror image theory represents a fundamental departure from previous immigration law and policy and a “a dramatic expansion of state authority which is inconsistent with existing constitutional doctrine.”  In support of the mirror image theory, Kobach relies on two major sources: a 1983 opinion, Gonzales v. Peoria, in which the Ninth Circuit indicated that when “state enforcement activities do not impair federal regulatory interests concurrent enforcement activity is authorized,” and a 1928 Second Circuit opinion by Judge Learned Hand, Marsh v. United States, holding that “it would be unreasonable to suppose that [the federal government’s] purpose was to deny itself any help that the states may allow.”  Chin and Miller note that “Gonzales and Marsh allowed state assistance to federal authorities through arrests, not legislation or prosecution.”  Chin and Miller go on to explain how the power to arrest is separate from the power to criminalize.  While a state actor’s decision to arrest “leave[s] crucial decision-making power in the hands of the Federal government, which is free to choose among criminal, civil and administrative sanctions and remedies authorized by the INA,” state decisions to legislate or to prosecute eliminate that federal discretion.

How the mirror image theory of cooperative state enforcement is likely to fare before the Supreme Court is unknown.  Kobach believes that as long as “state statutes mirror federal statutory language and defer to the federal government’s determination of the legal status of any alien in question, they will be on secure constitutional footing.”  And the Court’s recent decision in Chamber of Commerce v. Whiting indicates that there is at least some sympathy of the Court for this idea.  In that case, the Arizona employer sanction law required state investigators to verify the work authorization of employees with the federal government and explicitly forbade state investigators from making their own determinations about an employee’s work authorization status.  In a section of his majority opinion joined only by Justices Scalia, Kennedy, and Alito, Chief Justice Roberts noted that because “Arizona went the extra mile in ensuring that its law closely tracks [the relevant federal statute] in all material respects,” and because a state court may consider only the federal determination of an employee’s work authorization status, “there can by definition be no conflict between state and federal law as to worker authorization.”

Of course, not all of the challenged provisions in S.B. 1070 can be justified under the mirror image theory.  For example, Section 5(C) criminalizes unauthorized work and attempts to secure such work, even though federal legislation targets employers who hire unauthorized workers rather than the workers themselves.  But some of the challenged provisions do seem to squarely present the issue – such as Section 3, which creates a state crime for those individuals who violate certain federal laws regarding alien registration documents.  Thus, a decision in Arizona v. United States may very well provide clarification (if not a definitive answer) about the constitutionality of the burgeoning state immigration initiatives that mirror federal immigration laws.