US v. Arizona: where’s the conflict?
In a National Review piece, Kris W. Kobach, one of the drafters of the Arizona law, offers a series of defenses of the statute that seem quite strong to me, among them this:
The U.S. Supreme Court has long recognized that states can enact statutes to discourage illegal immigration without being preempted by federal law. In the landmark 1976 case of De Canas v. Bica, the Supreme Court upheld a California law that prohibited employers from knowingly hiring unauthorized aliens. The Court rejected preemption arguments, since “respondents . . . fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the [Immigration and Nationality Act] that Congress intended to preclude . . . state regulation touching on aliens in general.” States and cities can enact laws discouraging illegal immigration, and can assist the federal government in enforcing federal immigration laws in other ways, as long as their actions don’t conflict with federal law.
In the case of S.B. 1070 [the Arizona statute in question], the ACLU will be hard-pressed to find any such conflict. Indeed, S.B. 1070 is a mirror image of federal law. The documentation provisions of the Arizona law penalize precisely the same conduct that is already penalized under federal immigration law…Because S.B. 1070 matches federal law so precisely, it is protected by the legal doctrine of “concurrent enforcement.
Kobach goes on to describe a host of other relevant cases in which states were held to be able to regulate and enforce immigration law that does not actively conflict with federal law, all of which appear to apply to the statute currently under attack. The leading argument against it appears to be this, which seems patently absurd to me as a reason to declare a law unconstitutional:
The only argument…left is the dubious claim that more vigorous enforcement of federal immigration laws in Arizona will conflict with federal purposes, perhaps by compelling LESC personnel to respond to a much larger number of calls from Arizona. But the U.S. District Court for Arizona already rejected that line of thinking in Arizona Contractors Association v. Napolitano (2007), evaluating Arizona’s 2007 law that required all employers to use the E-Verify system to verify the work authorization of employees. According to the court, “the fact that the Act will result in additional inquiries to the federal government is consistent with federal law.” (In that case, Janet Napolitano, as governor of Arizona, defended the law; now, as homeland-security secretary, she opposes S.B. 1070.)
In summary, we’ve heard all these arguments before. Many of the people and organizations that are now declaring S.B. 1070 to be unconstitutional made the same claims regarding previous Arizona statutes: Arizona’s last three major laws concerning illegal immigration were all challenged in court ”” Proposition 200 in 2004, the Human Smuggling Act in 2005, and the Legal Arizona Workers Act in 2007…In every case, the Arizona law in question was sustained.
Ironies abound, do they not? When the political shoe is on the other foot, what was defended before is attacked now, and vice versa.
There is no use pretending that politics do not influence courts’ decisions, and so if the arguments the federal government is making at present were rejected by courts in the past, it does not mean decisions won’t go differently now.
Neo:
Your closing paragraph is another reason why lifetime appointments are inappropriate for the entire Federal judiciary, but most especially the SCOTUS.
I don’t know – shorter appointments to the court would not necessarily get the results wanted. It might be better, worse, or exactly the same. I don’t have data to make an assumption one way or the other. Even with data it would only be an assumption as we appoint humans to the court. Which means there is always room for doubt of the outcome. If there wasn’t, I suppose there would be no reason to go to court.
The opposition to the Arizona law is because it would enforce the US law, something that Obama is opposed to.
It would force him to deal with the situation.
From page 3 of the Federal complaint: “a state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.”
Oh, really?
Wiki: “Sanctuary city is a term given to a city in the United States that follows certain practices that protect illegal immigrants. These practices can be by law (de jure) or they can be by habit (de facto). The term generally applies to cities that do not allow municipal funds or resources to be used to enforce federal immigration laws, usually by not allowing police or municipal employees to inquire about one’s immigration status.”
“Some of the 31 American cities are Washington, D.C.; New York City; Los Angeles; Chicago; San Francisco; Santa Ana; San Diego; Salt Lake City; Dallas; Houston; Austin; Detroit; Jersey City; Minneapolis; Miami; Denver; Baltimore; Seattle; Portland; New Haven; and Portland, Maine. These cities have adopted “sanctuary” ordinances banning city employees and police officers from asking people about their immigration status.”
Res ipsa loquitur.
If the feds won’t enforce the law then the states have the moral duty to take up the slack.
My own opinion on immigration has undergone change. The reason I’ve reconsidered is that there has been a change in the composition of the type of person coming over the border. The border has been porous since there WAS a border and in years past that condition of permeability had been largely benign. Employers on this side had a willing worker — lives on the other side were improved by a few American dollars.
But since the rise of the cartels this mostly happy trade off has turned sour and become dangerous. The governments on both sides of the border, which have always looked the other way and saw the laws as window dressing, have been slow to come to grips with this new dynamic.
Now I believe that the border must be secured. While there will never be complete security all that is required is that most crossings be stopped. Couple a more secure border with a strict requirement that employers hire only the legally eligible and this problem will be close to being solved.
But there is still the problem of what to do with the millions that are here. I’m with Krauthammer on what to do:
“It seems to me that the Republicans ought to argue enforcement first – and then a very generous, open and humane solution for those already here.”
http://tinyurl.com/35wrqal
If the White House Press Corps ever rouses itself from its pastoral stupor it could have a lot of fun playing “Stump the Toady.”
Proponents of amnesty are quick to say you can’t deport 10 million people. Well, Mexico has. When the jobs dry up, many illegals will self deport. For those remaining some kind of work permits can be designed in areas like agriculture where the workers are needed. During the present recession jobs should be reserved for those here legally, including immigrants.
I am not linking wanted outcomes to abbreviated judicial appointments, Teresa. That is not my point at all. My point is that lifetime tenure enables judges in directions both good and bad. And if bad, that is a very long time for badness to be continued unchecked, except for impeachment. Legislating from the bench against the Constitution and the sustained sense of the public is not an impeachable act.
Before I retired, I remember getting employees SSN, W4 or W9 form. Also I needed to have the employees complete Form I9 which checks immigration status. IRS Pub 926 requires that I have the I9 on the first day of work and maintain that form in my records.
So, if an illegal alien uses my SSN, it is identity theft. Throw them in jail for that crime. I am sure that the IRS would come after me for not reporting “income” that is reported to them, even if it is the result of identity theft.
I believe the 2007 law is the one pending before the SCOTUS. The one it took the Solicitor General months to respond to a SCOTUS request for opinion over. When finally the administration responded they used a similar argument, law unconstitutional because it applies penalties harsher than the federal government wants for hiring illegals. Oddly, Napolitano first defended the law as governor and now opposes it as part of the Obama administration.
The important point is that the part of the law most rhetorically opposed, the reasonable suspicion determination, can be enforced by any law enforcement officer in the United States today without any state law. The only thing the AZ law does is mandate that all AZ law enforcement act on reasonable suspicion, i.e, no ignoring suspicion of a crime.
If we had seriously enforced the border twenty years ago, or even ten, there would be a lot less opposition to amnesty now. People oppose amnesty for a simple and sensible reason – it acts as a magnet for more illegal immigration.
First, stop the bleeding. There should be no second until the first is at least generally accomplished.
A foriegn lawyer’s question: Doesn’t the 14th amendment presuppose that states can condition civil rights on citizenship? That is, the point of guaranteeing that native-born Americans and naturalized U.S. citizens are citizens of the U.S. and of the state in which they reside is to prevent former confederate states from discriminating against freed slaves by manipulating “citizenship”. This guarantee makes no sense unless states can properly draw distinctions based on citizenship.
The italics were supposed to stop after “can”.
I note that that, according to the Boston Globe, the Commonwealth of Rhode Island currently has its state police report to ICE those whom they regard as probable illegal immigrants. In Arizona, ICE has announced that it will not process suspects turned over to it by the State of Arizona. However, the folks running ICE in Rhode Island seem quite happy to process those turned over to it by the Rhode Island State Police.
It seems that the Feds suit of Arizona is entirely a political show, and not based on any principles. What a surprise!
> as long as their actions don’t conflict with federal law.
Ah, but the problem here is self-evident under the Dems — their position is that there IS no Federal immigration law…
“It seems that the Feds suit of Arizona is entirely a political show, and not based on any principles.”
But it *is* based on principles and that is the issue. The Principle is that illegal aliens benefit more from a welfare state that caters to them than not and if we can allow them to vote then they will vote for the ones that give them that ability.
The principle being followed here is a real one and one they are trying to dance away from while still embrace. They know if they embrace it then they will loose but they also know that is a LARGE voting segment (if they can get all the stars to align). They also know that a great deal of their supporters will be supporters no matter what too.
As such it *is* on principle that they do this – it just isn’t on principle with respect to illegal immigration (they could care less). As long as you insist on framing it as such they can do what they want – but if you can force them to tell what they *really* think then they will be toast.
Arizona is trying to force that – their “new” law will in reality do little to nothing to stop/stem the illegals flowing in. What it *will* do is force people to look at what is being pushed, not what is being talked about.
In order for something like this to work it would either require enough states to enforce it that it might as well be federal or have the feds do it. Arizona opens the door for states to do it and forces the feds to let out into the open what they really believe or loose what they are trying to win. They are desperately trying to keep the fiction going and *that* is the principle – not illegals.
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strcpy – I think your analysis is sound. What are they saying over at Volokh?
I only read Volokh when someone links to it so I do not know (not a lawyer so most of it is kinda boring).
‘In the first place, we should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin.
But this is predicated upon the person’s becoming in every facet an American, and nothing but an American…There can be no divided allegiance here. Any man who says he is an American, but something else also, isn’t an American at all. We have room for but one flag, the American flag… We have room for but one language here, and that is the English language.. And we have room for but one sole loyalty and that is a loyalty to the American people.’ — Theodore ROOSEVELT, 1907.
In 1985, when I started my career in law enforcement, it was rare in Oklahoma to have contact with someone of Hispanic extraction, and even rarer to find that they did not speak English (so rare in fact that I once had to call my Puerto Rican girlfriend to hve her come to traffic stop scene to translate for us as we had no Spanish speakers on the Department).
After the amnesty of 1986, I bagan to notice a greater and greater number of contacts with Hispanics and found that MANY knew little or no English. Of course in the intervening time I took it upon myself to learn at least enough Spanish (thanks Nora) to deal with most basic law enforcement scenarios, and it is now almost a pre-requisite in my city for law enforcement officers to speak at least some Spanish since we have numerous daily contacts with non-English speakers.
If I lived in Mexico, and knew that I could come to the U.S. (even in an illegal manner) and make substantially more money without ever having to go through any citizenship classes or learn English and be catered to with all manner of signage, government documents and services, TV and radio, etc. in my native tongue, never be questioned as to why I am here, and maybe have the possibility of a full amnesty sometime in the future to forgive me for sneaking into the country (just like in 1986), why wouldn’t I?
As an aside, has anyone else ever noticed how those on the left always use the number 20 million when talking about deportation: “You can’t just deport 20,000,000 people!”, but use ten or twelve million as the number when talking about how many folks are actually here illegally: “Well, something needs to be done to provide a ‘pathway to citizenship’ for the 10 to 12, 000,000 folks who are living in the shadows.” or is it just me?