Tuesday, May 4, 2010

Arizona's Immigration Law -- Affirming Federal Law, Challenging Federal Supremacy

The State of Arizona accomplished something remarkable last week, when, on 24 April 2010, Governor Jan Brewer signed Arizona Senate Bill 1070 into law.  Widely described as "the nation’s toughest bill on illegal immigration", SB1070 empowers local and state law enforcement officers to investigate a person's immigration status in conjunction with the normal investigations carried out during routine stops such as for speeding or other traffic violation.

The reaction of the Obama Administration has been one of condemnation:
Speaking at a naturalization ceremony for 24 active-duty service members in the Rose Garden, he called for a federal overhaul of immigration laws, which Congressional leaders signaled they were preparing to take up soon, to avoid “irresponsibility by others.”
The Arizona law, he added, threatened “to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.”
How does SB1070 "undermine basic notions of fairness"?  By strict enforcement of Federal immigration statutes, as stated plainly in Section 1 of the bill:
The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.
It is certain that a number of mis-statements have been reported about the bill.  The New York Times, for example, incorrectly stated that the bill criminalizes a failure by immigrants to carry their immigration documents with them at all times:
The law, which proponents and critics alike said was the broadest and strictest immigration measure in generations, would make the failure to carry immigration documents a crime and give the police broad power to detain anyone suspected of being in the country illegally. Opponents have called it an open invitation for harassment and discrimination against Hispanics regardless of their citizenship status.
In fact, such failure has been a misdemeanor under Federal law since 1952, and may be found at 8 USC §1304(e):
(e) Personal possession of registration or receipt card; penalties
Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.
8 USC §1306(a) enhances the penalties for willful non-compliance with this requirement:
(a) Willful failure to register
Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both.
What SB1070 does do is add to the federal misdemeanor offense a state offense of trespass, according to Section 3 of the bill:
A. IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF TRESPASSING IF THE PERSON IS BOTH:
   1. PRESENT ON ANY PUBLIC OR PRIVATE LAND IN THIS STATE.
   2. IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a).
Additionally, SB1070 explicitly defers to Federal authority in determining a person's immigration status:
IN THE ENFORCEMENT OF THIS SECTION, THE FINAL DETERMINATION OF AN ALIEN'S IMMIGRATION STATUS SHALL BE DETERMINED BY EITHER:
  1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN'S IMMIGRATION STATUS.
  2. A LAW ENFORCEMENT OFFICER OR AGENCY COMMUNICATING WITH THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES BORDER PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
However, SB1070 does not, in fact, enhance the criminality of being in the United States illegally.  The Arizona Criminal Code already defines trespass in sections 13-1502 and 13-1503, in both sections establishing the criteria of "Knowingly entering or remaining unlawfully" at a particular property.  Arguably, then, even without the provisions of SB1070, an illegal immigrant is guilty of trespass wherever he or she goes, within the jurisdiction of Arizona law.

Thus SB1070 becomes a most paradoxical articulation of states' rights--an affirmation of the right (and perhaps duty?) of a state to enforce and thus re-affirm Federal law.  The historical expressions of states rights generally run counter to this, as far back as the Kentucky and Virginia Resolutions of 1798 and 1799.  

Penned by Thomas Jefferson and James Madison, respectively, the Resolutions asserted the power of states to nullify Federal law on the basis of unconstitutionality, as the Kentucky Resolution of 1798 declares quite forcefully:
Resolved, That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
South Carolina, in enacting its Ordinance of Nullification in 1832, was similarly emphatic in proclaiming the power of an individual state to invalidate Federal statute on the basis of unconstitutionality:
We, therefore, the people of the State of South Carolina, in convention assembled, do declare and ordain and it is hereby declared and ordained, that the several acts and parts of acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and, more especially, an act entitled "An act in alteration of the several acts imposing duties on imports," approved on the nineteenth day of May, one thousand eight hundred and twenty-eight and also an act entitled "An act to alter and amend the several acts imposing duties on imports," approved on the fourteenth day of July, one thousand eight hundred and thirty-two, are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens; and all promises, contracts, and obligations, made or entered into, or to be made or entered into, with purpose to secure the duties imposed by said acts, and all judicial proceedings which shall be hereafter had in affirmance thereof, are and shall be held utterly null and void.
Far from nullifying Federal law, SB1070 declares a most unequivocal support of Federal law--specifically, the willingness of Arizona to expend state resources in its enforcement.

How is it, then, that Arizona's immigration law has earned especial opprobrium from Obama, his Administration, and a number of commentators throughout the media?

One possible answer may be that Arizona's statute, as it affirms the probity of Federal law, also affirms Arizona's power and prerogative as a state in enforcing all the laws governing its territory--including Federal law.  While such affirmation is not a direct challenge to Federal authority, it does pose a challenge to Federal supremacy.  Arizona, with passage of SB1070, has declared itself co-equal with the Federal government in enforcing immigration law.  With SB1070, Arizona need not await the pleasure of Immigration and Customs Enforcement (ICE) agents to investigate the immigration status of persons contacted in the ordinary course of law enforcement; Arizona proclaims for itself the autonomy to undertake such investigations, and to act on the results.

However, the Constitution only asserts that Federal statute is superior to state statute:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Constitution is silent upon whom has the authority to enforce Federal law, and the 10th Amendment certainly opens a window for a state to assert a role in such enforcement.  The Constitution makes it clear that Federal law is fully upon a state, and the courts of every state are obligated to uphold Federal law; what state courts are obligated to uphold, state law enforcement officers might reasonably be tasked to enforce.  As the Constitution does not expressly delegate exclusive enforcement jurisdiction of Federal law to the Federal government (and in fact expressly delegates some measure of jurisdiction to state courts via the Supremacy Clause), the reservations of the 10th Amendment may reasonably allow states to declare for themselves a role in enforcing Federal statute:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Federal law enforcement is not a power prohibited by the Constitution to the states--a fact somewhat acknowledged in the 1956 Supreme Court Case Pennsylvania v Nelson:
It should be said at the outset that the decision in this case does not affect the right of States to enforce their sedition laws at times when the Federal Government has not occupied the field and is not protecting the entire country from seditious conduct.
Setting aside the particular merits and demerits of Arizona's immigration law, that Arizona would seek to enact such a statute is a challenge to reassess the relative roles and powers of state and Federal government to an extent not seen since the 1830s.  Whether the legislation is intended as a confrontational arrogation of state authority in the face of Federal inaction on immigration enforcement or as an effort to complement Federal resources with state resources, Arizona has issued a potent reminder to this nation that our system of government presents two government tracks--state and Federal--wherein neither can entirely dominate the other.