Since the federal government filed a lawsuit challenging Arizona’s immigration law, SB-1070, opponents of the Obama administration’s decision have repeatedly argued that the lawsuit has no legal grounding. Earlier this week, the bill’s sponsor, state Sen. Russell Pearce (R-AZ), insisted that there is no legal precedent in favor of federal preemption:
They talk about preemption. There’s never — and let me repeat, never has there been a preemption issue on states enforcing this law. And in fact, the courts have ruled many times in Pettis v. Gonzalez (ph) in the 6th, Santana (ph) in the 10th, Mueller versus Mena (ph) in a 9-zero landmark decision. I could go on and on with these case laws, where they constantly upheld states’ rights to enforce these laws. We enforce many federal laws. It’s outrageous, what they’re doing! This is about an agenda! This is a president that is acting like a dictator! This is a president who is ignoring the rule of law and siding with lawbreakers over the citizens of this country and the citizens of this state while damage is being conducted every single day! Every single day!
Quite the contrary, the courts have actually routinely ruled that immigration is under the purview of the federal government:
Plyer v. Doe: In this case, the Supreme Court ruled against a state statute denying education funding to undocumented children. In his concurring opinion, Justice Lewis Powell wrote “[t]he Court has traditionally shown great deference to federal authority over immigration. […] [E]ven equal protection analysis in this area is based to a large extent on an underlying theme of pre-emption and exclusive federal power over immigration.” Most importantly, Powell concluded, “[g]iven that the States’ power to regulate in this area is so limited, and that this is an area of such peculiarly strong federal authority, the necessity of federal leadership seems evident.”
De Canas v. Bica: Justice William J. Brennan wrote in his opinion that “the power to regulate immigration is unquestionably exclusively a federal power.” The Supreme Court also articulated three tests that determine whether a law is preempted: Is the state or locality attempting to regulate immigration? (Constitutional preemption) Did Congress intend to occupy the field and oust state or local power? (Field preemption) Does the state or local law stand as an obstacle to or conflict with federal law, making compliance with both the state and federal law impossible? (Conflict preemption) The federal government challenge against SB-1060 focuses on Constitutional preemption, but there is certainly an argument to be made in favor Field and Conflict preemption.
Gonzales v. City of Peoria: Pearce was probably trying to cite Gonzales v. City of Peoria because the Ninth Circuit ruled that the “general rule is that local police are not precluded from enforcing federal statutes.” However, Pearce clearly hasn’t read the rest of the decision. The decision explicitly stated that though “state law authorizes Peoria police to enforce the criminal provisions” of the Immigration Nationality Act (INA), “this authorization is limited to criminal violations.” The Court also stated that officers “must distinguish illegal entry from illegal presence and must comply with all arrest requirements imposed by the federal Constitution.” This case will likely pose a problem for Pearce as SB-1070 does not distinguish between these two violations — one which is considered a felony under federal law, the latter a civil violation.
Proposition 187: In 1994, California approved a ballot measure which prohibited undocumented immigrants from using health care, public education, and other social services. However, federal Judge Mariana R. Pfaelzer found the law to be unconstitutional in 1997. “Proposition 187, as drafted, is not constitutional on its face,” wrote Pfaelzer. “California is powerless to enact its own legislative scheme to regulate immigration.” Besides not making a distinction between criminal and civil violations, SB-1070 also departs from federal immigration law by outlawing the solicitation of work in a public space (such as day labor), banning the transportation of an undocumented immigrant in most circumstances, requiring local police to enforce immigration law, and allowing Arizona residents to sue them if them if they believe they aren’t.
Lozano v. City of Hazleton: In 2006, the city of Hazelton, PA imposed steep fines on landlords who rented to undocumented immigrants and denied business permits to owners who hired them. In The Lozano v. City of Hazleton, ACLU and co-counsel successfully argued laws like Hazleton’s are unconstitutional because they usurp federal immigration policy. In his decision, U.S. District Judge James Munley argued that “Hazleton’s ordinances violate the Supremacy Clause of the United States Constitution, which provides that federal law is the supreme law of the land.” Munley concluded that “any additions added by local governments would be either in conflict with the law or a duplication of its terms–the very definition of field pre-emption.” The case is now on appeal before the United States Court of Appeals for the Third Circuit.
As Mark S. Grube argued in the Cornell Law Review, “[t]here are no easy solutions to these conflicts, and litigation about a local government’s ability to combat the presence of undocumented immigrants is currently ongoing.” Regardless of what the final decision is on U.S. v. Brewer, Pearce can’t simply attribute the federal government’s actions to the President “ignoring the rule of law and siding with lawbreakers over the citizens of this country.” Obama, a former Constitutional Law professor, isn’t acting like a dictator — he and the DOJ have submitted a valid claim that will at the very least provide some much-needed clarity on how far states and localities can go in pursuing undocumented immigrants on their own.