Online symposium: What now, Arizona?

This is the eighth post in our online symposium on Monday’s decision in Arizona v. United States, the federal government’s challenge to Arizona’s S.B. 1070. John Eastman is the Henry Salvatori Professor of Law & Community Service, and former Dean, at Chapman University School of Law in Orange County, California.  He is the founding Director of the Center for Constitutional Jurisprudence, on whose behalf he participated as an amicus curiae in Arizona v. United States.

Shortly after the Supreme Court rendered its judgment on the Arizona immigration law, S.B. 1070, unanimously upholding the most controversial aspect of the law, the Obama Administration revoked existing Section 287(g) agreements with seven Arizona law enforcement agencies.  This pettiness – the Administration behaved like a child who, after not getting his way, took his toys and went home – is unbecoming of a President whose constitutional duty includes the obligation “to take care that the laws be faithfully executed,” but it was made possible by the other aspects of the Court’s holding.

For the Court also struck down several provisions of the Arizona statute that gave Arizona law enforcement the ability to enforce existing federal law in the event – now realized – of abject refusal on the part of federal officials to enforce existing law.  Federal law requires immigrants to register and carry their registration papers on their persons at all times, for example, and it is a federal crime for failure to do so.  Section 3 of the Arizona statute also made the same failure a state crime, so that its own law enforcement could enforce the federal law without waiting for the federal cavalry to show up and do its job.  The penalties for violation of the state law were virtually identical to the penalties for violation of the federal law, and the substantive requirements were not just identical but actually incorporated the federal law into the state statute, by explicit reference.  Yet Justice Anthony Kennedy, writing here for a bare majority of five Justices, held that “there is an inconsistency between § 3 and federal law with respect to penalties.”  Not in the actual federal statute dealing with the registration requirement, mind you – Title 8, Section 1304(e)’s penalties are virtually identical to Arizona’s – but in an unrelated, generic federal statute in an entirely separate part of the U.S. Code allowing probation as a possible sentence for most federal crimes, Title 18, Section 3561.  This created, in Justice Kennedy’s mind, a conflict between the two statutes so great as to require the holding that Arizona’s Section 3 was impliedly preempted by federal law.  Overlooked was another provision of the Arizona statute, Section 12(c), specifically designed to prevent such stray federal provisions from invalidating the Arizona law.  That section provides that the entire Arizona statute must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”  Nevertheless, from the tea leaves of a generic provision completely unrelated to the federal immigration law at issue, in an entirely different section of the U.S. Code, Justice Kennedy was able to divine that Congress “intended” to preempt Arizona’s Section 3.

Similarly, the Court struck down Section 5(C) of the Arizona law, which imposed criminal sanctions on illegal immigrants who unlawfully seek work in the state.  Federal law imposes criminal sanctions on employers, and expressly preempts state laws that impose other criminal sanctions on employers, but as Justice Kennedy recognized, the federal law “is silent about whether additional penalties may be imposed against the employees themselves.”  Under normal preemption doctrine, there is a presumption against preemption of state laws, particularly in areas of traditional state concern such as employment.  Yet Justice Kennedy, relying solely on two pieces of legislative history penned more than a decade before the federal Immigration Reform and Control Act was adopted in 1986, divined that by its silence, Congress actually intended to prevent the states from imposing any sanctions on employees who act unlawfully by seeking employment for which they are not authorized.  And this, even though Justice Kennedy rightly recognized that Arizona’s Section 5(C) “attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment.”  “The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment,” Justice Kennedy held, and that creates an impermissible “obstacle to the regulatory system Congress chose.”  Of course, it is just as likely that Congress chose not to impose criminal sanctions on employees because doing so imposes a whole panoply of constitutional due process requirements, like the requirement that an attorney be provided free of charge (or rather, at taxpayer expense), and Congress did not want to incur the added costs.  But under that interpretation of the federal statute, Arizona’s decision to incur those costs itself would not be an obstacle to the federal plan, but would actually further it.  How Justice Kennedy determined which of those two very plausible explanations actually motivated the Congress that adopted the 1986 federal immigration law, he does not say.  He does not even address the counter possibility.

So Arizona is now shorn of some of the more effective enforcement tools that were contained in its law, a law designed to protect the citizens and lawful residents of Arizona from the increasing threat to life and property caused by a massive influx of illegal immigration and cross-border drug trafficking.  But several of the provisions of Arizona’s law were upheld by the lower courts and not challenged in the Supreme Court.  It remains a state crime to harbor or transport illegal immigrants in the state, and vehicles used for that purpose can be impounded.  Employers who knowingly hire illegal immigrants in violation of federal law can have their business licenses revoked.  Local officials who adopt “sanctuary city” policies to undermine federal immigration law can be personally sued by Arizona taxpayers.  And of course Section 2(B), which was upheld by the Supreme Court, requires Arizona law enforcement officers to ascertain the immigration status of anyone whom they lawfully stop, if they have reasonable suspicion, unrelated to the person’s race or ethnic background, that the person is in the United States unlawfully.

Finally, even with respect to the provisions that the Supreme Court invalidated, Congress can weigh in to revive those provisions.  Because the Court held them invalid under doctrines of “implied preemption,” Congress can simply clarify that it intended no such preemptive effect.  Particularly in the wake of the Obama Administration’s decision to retaliate against Arizona for its efforts to protect its own citizens against the collateral harms of the Administration’s deliberate under-enforcement policy, there may well be strong enough sentiment in Congress to do just that.  If not now, then perhaps when the new Congress takes office in January.