Written by Jacob Laksin
Fresh from one Supreme Court showdown against dissenting states with major political ramifications, the Obama administration heads into another one this week as the Court begins its review of SB 1070, Arizona’s anti-illegal immigration law.
Arizona’s law requires state police to enforce federal immigration law by confirming the legal status of criminal suspects and detaining them if they are illegal immigrants. Despite that seemingly modest goal, it has been in legal limbo since July 2010, when the Obama administration’s Justice Department filed suit to block it from going into effect. Arizona has always maintained that it had the authority to enact the law. Now the Supreme Court will step in to referee who is right.
At the heart of the case, as in the recent hearings over ObamaCare, is the balance between federal and state authority. The Obama administration argues that the Arizona law cannot be allowed to stand because the Constitution gives the federal government jurisdiction over immigration laws, and the Arizona law conflicts with federal enforcement efforts. Arizona’s law is invalid, in other words, because it is “pre-empted” by federal laws. On the basis of similar reasoning, several federal courts have already blocked sections of the Arizona law from going into effect.
Arizona frames the issue differently. The state argues that, rather than conflicting with federal law, SB 1070 is complimentary with it. That is a significant distinction because the Supreme Court has in the past affirmed the right of states to have concurrent immigration laws. Attorney Kris Koback, who helped draft the Arizona law before moving on to his current post as secretary of state in Kansas, has pointed out that “the Supreme Court has ruled multiple times that states have spheres of activity where they can operate to discourage illegal immigration. It’s an area of shared authority.” Koback points out that the Arizona law should fall under this sphere because there is nothing legally novel in it. For instance, contra the Obama administration, Arizona’s requirement that immigrants carry registration has already been federal law since the 1950s.
But if the Arizona law and the federal law are essentially the same, why is the former even needed? Arizona’s argument is clear: The federal government is not enforcing its own law. It’s a strong argument, made all the more compelling because the Obama administration has essentially conceded as much. When it comes to illegal immigration, the administration has followed a policy of what it calls “prosecutorial discretion.” In practice, that means that most illegal immigrants who do not have a criminal record are allowed to remain in the country. Last summer, for instance, the administration announced that it would indefinitely delay deporting illegal immigrants without criminal records and give them a chance to apply for a work permit.
Whatever one’s view of the policy, it lends credence to Arizona’s claim that the government is not enforcing the laws against illegal immigration. Since federal law makes no distinction between different categories of illegal immigrants, the administration’s policy amounts to selective enforcement at best and effective non-enforcement at worst. By contrast, the Arizona law is rooted in the policy of maximal “attrition through enforcement.” The underlying idea is that enforcing existing immigration laws can gradually reduce the illegal immigrant population. Given that premise, Arizona could plausibly argue that a state anti-illegal immigration law that enforces existing federal law cannot be in conflict with it.
While it’s too early to guess how the Court might rule, legal precedent could be in Arizona’s favor. As noted, the Court has previously upheld state immigration laws deemed concurrent with federal law. Most notably, in the 1976 case of De Canas v. Bica, the Court unanimously overruled a Superior Court’s decision that a California law prohibiting the state’s businesses from employing illegal aliens was unconstitutional. The Superior Court had struck the law down because it “encroaches upon, and interferes with, a comprehensive regulatory scheme enacted by Congress in the exercise of its exclusive power over immigration.” That is essentially the same argument that the Obama administration is now making against the Arizona law. But in Bica,the Supreme Court rejected that argument, ruling that California could exercise concurrent jurisdiction with the federal government. That is exactly what Arizona is asserting today.
The current Court has also been willing to follow that principle. Last May, in the case of Chamber of Commerce v. Whiting, the Court upheld Arizona’s Legal Arizona Workers Act, a 2007 law that imposed stricter penalties on employers that failed to verify the immigration status of their employees. While that decision did not directly address the later 2010 law, the Obama administration contested it on the same grounds, namely that the law conflicted with federal immigration law. In a 5-3 decision, the Court disagreed, ruling that Arizona’s law was supplementing rather than conflicting with federal laws to prevent the hiring of illegal immigrants. Arizona’s 2010 law is a different case, to be sure, but the Court’s decision in Whiting suggests that it may be receptive to upholding state laws deemed concurrent with federal enforcement efforts.
If the legal outcome is not obvious, the political fallout is also hard to predict. Critics of the Arizona law seem to believe that a decision upholding it would put Republicans on the defensive with Hispanic immigrants and throw swing states like Florida into doubt. That is one possibility. Equally, though, overturning the law could cause a major headache for the Obama administration. Polls show that Americans overwhelmingly support tougher immigration enforcement. Thwarting an embattled state’s efforts to come to grip with its illegal immigration problem is not a strategy calculated to win over the American public.
Democrats at any rate are taking no chances with the outcome. Notwithstanding their recent demands that the Supreme Court respect “duly constituted and passed” laws, Democrats are already plotting to pass legislation that would invalidate Arizona’s anti-illegal immigration law if the Supreme Court upholds it. The law would require state immigration laws to first get federal approval. Almost certain to fail in Congress, the bill would send the message that Democrats are prepared to sacrifice states’ rights at the altar of their political causes. But then, with its health care legislation and its relentless campaign against the Arizona law, the Obama administration may have sent that message loud and clear already.