Currently, the Department of Justice is battling Arizona and Alabama’s unconstitutional assaults on undocumented immigrants in federal court, leading federal appeals courts to block much of both laws. Yesterday, DOJ expanded its challenges to South Carolina’s equally unconstitutional copycat of Arizona’s “Papers, please” law:
In our constitutional system, the federal government has preeminent authority to regulate immigration matters and to conduct foreign relations. This authority derives from the Constitution and numerous acts of Congress. [...] Although States may exercise their police power in a manner that has an incidental or indirect effect on aliens, a State may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of disparate state and local immigration policies throughout the country. [...]
Despite the preeminent federal authority and responsibility over immigration and foreign relations, the State of South Carolina recently enacted Act No. 69, which addresses multiple aspects of immigration regulation and enforcement and is scheduled to become effective on January 1, 2012. The provisions of Act No. 69, working individually and in concert, seek to punish unlawful entry and presence of aliens such as by requiring, whenever practicable, a determination of immigration status during any lawful stop, detention, investigation, or arrest by the police where there is “reasonable suspicion” that an individual is unlawfully present, and by establishing new state criminal sanctions against unlawfully present aliens.
It’s worth noting that this law is less draconian than a similar Alabama law that seeks to intimidate children against attending school and even makes it a felony for many immigrants to take a shower. And yet, DOJ’s suit is an important reminder that these Arizona-style laws are still cruel and unconstitutional.
South Carolina’s law will cause innocent residents — potentially even United States citizens — to be detained because police suspect them of being undocumented. It makes it a crime for lawful immigrants “to fail to carry in the person’s personal possession any certificate of alien registration or alien registration receipt card,” and subjects them to up to 30 days in prison for failure to carry their papers. Because the Alabama law is so absurd in its overreach, it is easy to forget that other states’ anti-immigrant laws are still quite bizarre and oppressive in their scope.
They are also a direct assault on the Constitution. As the Supreme Court explained nearly 70 years ago in a case called Hines v. Davidowitz, allowing individual states to set their own immigration policy isn’t just misguided — it is downright dangerous because “international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.”
America does not allow Minnesota to negotiate most favored nation trade status with China. It does not allow Nebraska to unilaterally impose sanctions on Iran. It does not allow Florida to declare war on Lebanon. And it must not allow South Carolina to decide its own immigration policy for the exact same reason. If an American government is going to imperil our foreign relations with another nation, that decision should come from a decision maker that has actually been elected to represent the entire nation.