The constitutionality of “attrition through enforcement”

The following is an essay for our symposium on Arizona v. United States by Rogers M. Smith, Christopher H. Browne Distinguished Professor of Political Science at the University of Pennsylvania and chair of the Penn Program on Democracy, Citizenship, and Constitutionalism.  Professor Smith has authored or co-authored two books and many articles on issues of citizenship and immigration.

Quite appropriately, the three opinions in the ruling by the Ninth Circuit Court of Appeals on the constitutionality of Arizona’s S.B. 1070 focus on the specific legal questions of whether four provisions of the state law – Sections 2(B), 3, 5(C), and 6 – are preempted by various parts of the federal government’s often-amended Immigration and Nationality Act (INA). (The U.S. originally challenged six provisions of S.B. 1070 and sought to have enforcement of the statute enjoined in its entirety, but it has not pursued those broader claims after U.S. District Judge Susan Bolton barred enforcement of these four provisions.)

The law is clearly in serious legal jeopardy.  Even the partial dissent by Circuit Judge Carlos Bea accepted that Section 3 of the law, which makes it a state crime for aliens to fail to carry documentation required by federal law, is preempted by the INA’s effort to establish a uniform and comprehensive system of alien registration, and that Section 5 of the law, which makes it a state crime for unauthorized aliens to seek or accept employment, is preempted by the intent of Congress to focus employment sanctions on employers, not on employees.  Judge Bea dissented from the rulings of his two colleagues in regard to Section 2(B), which requires all Arizona law enforcement officials to determine the immigration status of all persons they stop or detain, if there is reasonable suspicion about their status, and (perhaps) requires law officials to determine the status of all persons they arrest, period.  He dissented also in regard to Section 6, which authorizes state law enforcement officials to arrest without a warrant anyone whom they have probable cause to believe guilty of an offense rendering the person removable from the U.S., which apparently includes offenses committed outside of Arizona and offenses confined to federal immigration laws.

Circuit Judges Richard Paez and John Noonan ruled that Section 2(B) is preempted by the INA’s requirement that state enforcement of immigration laws be guided by written agreements with the U.S. Attorney General, and more broadly that it interferes with the discretion regarding enforcement Congress has assigned to the Executive Branch.  They believe that Section 6 gives state officials more authority to arrest than Congress has approved, so it interferes with what they call a “carefully calibrated” congressional plan for immigration enforcement.  The fact that the three Circuit Judges were unanimous in upholding half of District Judge Bolton’s ruling suggests that at least some of the federal government’s preemption claims have considerable legal weight and may be upheld on appeal, even by a conservative U.S. Supreme Court.

Writing, however, as a political scientist interested in constitutional conflicts as dimensions of American political struggles, I wish to highlight two features of the broader significance of this litigation.

First, the reality is that this law emerges from an effort by Arizona lawmakers and officials in many other states to adopt a controversial approach to unauthorized immigration, “attrition through enforcement,” an approach that is not the policy of the United States government.  This reality shows that the U.S. government’s claims that the state is seeking to interfere with existing federal policies, and that a decision in Arizona’s favor would encourage such efforts, are warranted.

But second, it is also a reality that the U.S. government does not actually have a coherent, comprehensive – much less “carefully calibrated” – overall immigration policy.  As a result, it is failing to reduce unauthorized immigration and leaving most of the burdens of dealing with all resulting problems to the immigrant-receiving states, such as Arizona.  It is reasonable to argue that it is constitutionally legitimate for states to seek in various ways to shape federal policies affecting them, especially when the federal government appears incapable of effective policy-making.  I do not think these circumstances legally justify the provisions of S.B. 1070.  But I do think the litigation should not be seen not primarily as an occasion for the federal courts to slap down an over-reaching and xenophobic state.  Rather, United States v. Arizona is a fire bell in broad daylight, a ringing alarm that the federal government must break through its longstanding gridlock on immigration and enact measures that work to reduce the numbers of unauthorized immigrants over time, while assisting both the states and the immigrants burdened by current policies.  Otherwise, tensions between the affected states and the national government will only escalate, doing real harm to the American constitutional system.

S.B. 1070 says explicitly: “the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona.”   The phrase “attrition through enforcement” does not come from any federal statute or enacted policy.  It derives primarily from the works of one of the bill’s co-authors, University of Missouri-Kansas City law professor and now Kansas Secretary of State Kris W. Kobach.   (In the interest of full disclosure, Dr. Kobach is also my former Teaching Assistant and student.  He and I disagree on many matters, but I admire his abilities and his dedication to what he sees as the common good. )

The aim of “attrition through enforcement” is to reduce the number of unauthorized aliens in the U.S. sharply without having to deport millions of unauthorized aliens.  The strategy seeks to do so by first, enforcing strenuously all existing laws imposing requirements on unauthorized aliens and limiting their legal rights and opportunities, and second, adopting many new but constitutional restrictive measures aimed at this population.  The expectation is that most unauthorized aliens will eventually find life in the United States worse than the conditions they left, and go back.

Professor Kobach has urged this approach to immigration in many venues, including a 2008 article in the Tulsa Journal of Comparative and International Law.  But he emphasized there that this approach “has never been the immigration strategy of the United States.”  The U.S. has centered its enforcement efforts on alien smugglers and unauthorized immigrants guilty of violent crimes, Kobach correctly stated, while doing “virtually nothing to enforce the law against garden-variety illegal aliens.”  In recent months President Obama has been stressing that his administration, using the discretion that he believes congressional immigration statutes afford it, has if anything been heightening the national focus on deporting violent undocumented aliens, rather than all unauthorized immigrants.

There is no real dispute, then, that the “attrition through enforcement” policy is not one expressly authorized by Congress, and that Congress and the Executive Branch have instead pursued different strategies toward immigration.  Insofar as whether the underlying question in United States v. Arizona is whether the state is seeking to displace the national government’s approach to immigration with one of its own, the answer is plainly yes.  And only a few scholars doubt that the Supremacy Clause of Article VI of the Constitution means that national policies and congressional laws on immigration preempt state immigration measures whenever the two conflict.

This answer does not necessarily resolve all debate over the constitutionality of all or even parts of S.B. 1070.  Kobach has persuasively argued in the past (in regard to term limits) that it is often legitimate to bring about even constitutional changes through innovations at the state level, such as women’s voting, until so many states have altered their policies that ratifying national action becomes inevitable and largely symbolic. It is also fair to say that the prevailing national approach to immigration is a result far more of compromises than any coherent, calibrated strategy, and that few think national immigration policies are working well from any point of view, including the residents of the affected states, the unauthorized immigrants, and the broader American public.  Perhaps, then, it is legitimate for states today to seek to impose what Kobach deems a more “rational” immigration policy on the nation through the adoption of kindred immigration measures by a large number of states, effectively making “attrition through enforcement” national policy – especially since S.B. 1070 and other “attrition through enforcement” measures are crafted to reinforce the letter, though not the spirit, of various provisions of existing federal immigration laws.

I am not persuaded.  The fact remains that, as the opinions of Judges Bolton, Noonan, and Paez show, Congress and several Presidents have made it national policy to retain national control over immigration enforcement, enlisting state officials only on terms set by the national government.  If state laws are to reinforce national policies, it must be in ways that the national government specifically endorses.  The pertinent national laws also do accord the President and executive branch agencies significant discretion to decide on enforcement priorities, in ways that often reflect foreign policy as well as domestic policy and, yes, political concerns.  And as Kobach has acknowledged, for whatever reasons, these national authorities have used their constitutional powers to pursue profoundly different policies than those that Arizona seeks to make law.  Therefore, the fundamental aim of S.B. 1070, along with many of its specific provisions, is indeed preempted by the priority the Constitution gives to federal statutes dealing with immigration policy.

Still, the harsh reality persists: America’s national immigration policies are not working.  The fact that Arizona has felt driven to pass this and other laws aimed at unauthorized immigrants, and some – such as its ban on Ethnic Studies programs – that are transparently aimed also at Latino citizens of the United States, should not be occasions simply for criticism of Arizona’s lawmakers and voters, ugly as many of these laws are to many of us outside the state. As Judge Paez recognized, Arizona is struggling with economic, social, educational and political issues related to unauthorized immigration that are undeniably real and serious.  If the federal courts are to uphold the national government’s preemptive authority over immigration policies, as they ought to do, the national government also ought to accept that it needs to do a better job of enacting national policies that are worth upholding.