The Federal Lawsuit against the AZ Immigration Law: It’s not What You Think

You’ve probably heard that Arizona has passed a controversial law designed to deal with the perceived problem of illegal immigration. Apparently a lot of American citizens are sick of getting turned down when they apply for those coveted farm laborer positions, because their salary demands just aren’t competitive with migrant labor.

Seriously, though, the law’s provisions don’t seem unreasonable on their face. It makes it a crime, under state law, to be present in Arizona as an illegal alien in the United States. It also obligates the police to make an effort to determine a person’s immigration status during a lawful traffic stop or arrest.

If the U.S. Congress had passed, and enforced, this law, it’s unlikely that anyone would have any objections. And if the federal government had the money and manpower to enforce a similar federal law, I’m sure they’d jump all over the opportunity. So, they shouldn’t object to a state government picking up the slack for them, should they? Heck, the Arizona law even defers to federal law when making the determination that a person is an illegal alien.

So, why is the federal government suing the state of Arizona (also reported here) to enjoin enforcement of this law?

As usual, it’s complicated. If you believe the comments sections on most news websites (I’m particularly fond of the comments on Yahoo! News stories. They make YouTube comments look insightful.), it’s because Barack Obama hates America and wants to see it taken over by illegal immigrants and fail; and maybe because he’s also an illegal immigrant (“Kenya! Secret Muslim! Et cetera!”) and is afraid that Arizona police might arrest him…or something. The assumption boils down to “the current administration loves illegal immigrants more than American citizens.”

Of course, if those people had actually bothered to read the complaint (large .PDF file), they’d know that the federal government is suing on far more mundane, technical, but no less important grounds. Their argument goes to the basic structure of the federal government, and its relationship with the states, as laid out in the Constitution.

The lawsuit relies on Article I, Section 8 of the U.S. constitution, which contains the “Naturalization Clause,” and Article VI, Section 2, which contains the “Supremacy Clause.”  The Supremacy Clause basically says that the U.S. Constitution, and any federal laws made under it, are the “supreme law of the land,” overriding any contradictory state laws.

The Naturalization Clause gives Congress authority to “establish a uniform rule of naturalization.” It is well-settled in U.S. courts that this clause gives the federal government unlimited and exclusive power over all matters related to immigration, and states cannot encroach on that turf. It appears that the founders wanted to avoid a patchwork of state immigration laws (hence, the “uniform” part of the clause), the prospect of which raises obvious problems.

So, it appears that the federal government isn’t engaged in some nefarious conspiracy to help illegal immigrants take over the country. Of course, people who are already inclined to believe otherwise will probably just say that this is a sneaky way to undermine Arizona’s efforts.

Is this Arizona law constitutional, and if so, is it a good idea? The constitutional question is definitely not a slam-dunk for either side.

Arizona certainly has at least a plausible argument that its law is constitutional: it apparently recognizes that it doesn’t have the constitutional authority to create its own standards for deciding if a person were in the U.S. legally. Therefore, the law is careful to defer to federal immigration law when making that determination. Arizona could simply argue that they’re picking up the slack where the federal government is unable, or unwilling, to act. After all, it’s generally accepted that states can enforce federal criminal statutes.

However, the federal government has a very powerful weapon in its arsenal: the doctrine of “field preemption.” While the constitution reigns supreme over any contradictory state laws, a state law that does not contradict federal law, or actually goes further in advancing the objective of the federal law than the federal law itself, is not preempted by the federal law. For example, many states have a minimum wage higher than that imposed by the federal government. This is fine, since it does nothing to undermine the goals of the federal minimum wage law. However, some states have no minimum wage law, or one that is lower than the one set by federal law. Those laws are preempted by the federal minimum wage law.

However, in a few cases, the federal government’s regulation scheme may be so comprehensive that there is no room for any state laws on the subject, whether or not it contradicts the federal law. This is referred to as the federal government “occupying the field” on a given subject. When a court finds that this has happened, any state laws on the subject (in this case, immigration) are void, even if they’re perfectly consistent with the federal law. It could certainly be argued that the Constitution’s grant of power to the federal government on immigration, and the resulting federal laws which deal with virtually every conceivable situation that can come up in the immigration context (though one might argue that it doesn’t deal with it very well). Given the expansive nature of federal immigration law, the federal government definitely has a good case for this.

The other major argument that Arizona could make: that the federal government is not doing its job in enforcing its own immigration laws, is probably a non-starter. If you grant that immigration law is the exclusive domain of the federal government, the fact that the federal government’s enforcement of its own laws isn’t up to your standards is probably irrelevant.

But suppose that this law is constitutional – is it good policy? Probably not. While it largely mirrors federal law, it doesn’t seem to make the same allowances that federal law does. For example, there are many refugees in the U.S. from Haiti, which is still reeling from the devastating earthquake that happened in January, killing hundreds of thousands of people. Many of these people don’t have documentation, but that fact is being overlooked by federal authorities, since sending them back to Haiti would be extremely cruel. However, given the proclivities of Sheriff Joe, it’s entirely possible that Haitian refugees in Arizona may find themselves in a Maricopa County jail, for having the audacity to be physically present in the state.

If the federal courts strike down this law (and I’m leaning towards hoping that they do), we can only hope that the authorities in Arizona abide by their rulings, and don’t try and pull a George Wallace.