Enforcement in kind: reexamining the preemption doctrine.

• Author: Hochul, William, III
• Position: Case note

INTRODUCTION

In early 1995, a fight broke out between Cesar Herante, Guillermo Escobedo, and Justin Younie in Hawarden, Iowa. Younie was killed following a series of stab wounds from Herante and Escobedo. (1) Younie's death "in the small Iowa town in which he was born and raised" (2) sparked national outrage because his killers were unauthorized aliens. Federal lawmakers--fearing that state and local governments were powerless to stop violent aliens--quickly created a mechanism for local agencies to "join the fight against illegal immigration." (3)

Fifteen years later, Robert Krentz was murdered near his home on the Arizona-Mexico border. (4) His death came amidst growing discontent with the federal government's ability and eagerness to curtail movement across the border, which was perceived as both an economic and security threat to American citizens. (5) Arizona responded by enacting legislation that empowered state and local officers to enforce immigration law of their own accord. (6) A critical component of the law--the "Papers, Please" provision--required state and local officers to perform immigration checks during any stops or detentions that raise reasonable suspicion of unauthorized presence in the United States. (7) Shortly after the Ninth Circuit ruled that the Arizona law was preempted by federal immigration law, (8) Alabama passed an identical provision that was eventually upheld by the Eleventh Circuit. (9)

This Note uses Arizona v. United States (10) as a platform to reexamine preemption jurisprudence and sets forth a comprehensive framework for analyzing federal-state conflicts. Part I establishes the foundation of federal preemption in immigration law and evaluates the role and operation of competing preemption principles. Part II critiques United States v. Arizona and United States v. Alabama and sets the stage for the case before the Court. Part III applies the framework set forth in this Note to Arizona v. United States and offers a resolution to the federal-state conflict presented to the Court. While the Arizona and Alabama Papers, Please provisions further Congress's overarching goal of strengthening immigration enforcement, the process they implement undermines Congress's ability to account for the collateral implications of empowering thousands of local officers to enforce federal immigration law. By vesting affirmative duties in state and local officers that subvert the top-down enforcement mechanism created by Congress, the Arizona and Alabama laws conflict with, and are therefore preempted by, federal law.

1. FEDERAL PREEMPTION IN IMMIGRATION LAW

   Recent challenges to local and state immigration regulations are rooted in the preemption doctrine. (11) This Part establishes the foundation of federal preemption and examines its application in the sphere of immigration law. The principles set forth in this Part will guide the forthcoming analysis of Arizona v. United States.

   1. The Framework of Federal Preemption

      The constitutional foundation for the preemption doctrine lies in the Supremacy Clause, which dictates "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... under the Authority of the United States, shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (12) As a result, "any state law, however clearly within a State's acknowledged power, must yield if it interferes with or is contrary to [valid] federal law...." (13) In sum, "if a federal statute establishes a rule, and if the Constitution grants Congress the power to establish that rule, then the rule preempts whatever state law it contradicts." (14)

      Thus, the Supremacy Clause establishes a rule of federal priority when a court must choose between applying state or federal laws. (15) The challenge for the court is to draw the line between compatibility and conflict. (16) The court's "ultimate task" in a preemption case is to determine whether a state or local ordinance is consistent with the "structure and purpose" of a federal statute. (17)

      As a general matter, the court should proceed by first establishing that the federal law in question is valid. The power to preempt is "pendant on some enumerated power under [the Constitution,]" so the court must determine whether Congress has acted within the scope of its enumerated powers, thereby creating a valid law that could preempt the state law at issue. (18) Should the court determine the federal law is valid, the court may proceed to determine whether and to what extent the statute conflicts with state law. (19)

      The court's conflict analysis begins with the intended scope and application of the federal statute and is guided by two principles. (20) First, the "'purpose of Congress is the ultimate touchstone in every pre-emption case.'" (21) For this reason, extratextual sources must be examined even where language does not directly conflict. (22) Second, preemption analysis is guided by the "assumption that the historic police powers of the States were not to be superseded ... unless that was the clear and manifest purpose of Congress." (23)

      Once the court has ascertained the intended scope, i.e., whether the statute governs the conduct in question, and application, i.e. how the statute operates in practice, it may determine whether a state statute conflicts with the federal law. To do so, the court must identify how the state statute operates in practice. The Court has identified two broad categories of preemption, express and implied." In enacting a federal law, Congress may [expressly] provide for or limit the scope of any intended preemption through the statutory text or the law's legislative history." (24) Congress has expressly preempted state immigration law subject to its constitutional authority to legislate on some immigration issues, including sanctioning the employment of unauthorized aliens. (25)

      Absent an express preemption clause, federal law may still preempt state law by implication. (26) The breadth of implied preemption is limited in fields traditionally occupied by state power, in which case Congress's intent or purpose to preempt state law must be expressed or necessarily implied. (27) In contrast, state statutes are afforded less leeway in spheres traditionally occupied by the federal government. (28)

      Federal law impliedly preempts state statutes in three occasionally overlapping circumstances: (29) when Congress has enacted such a comprehensive scheme as to occupy an entire field of law (field preemption), (30) when a state law conflicts with federal law (conflict preemption), and when a state law stands as an obstacle to the accomplishment of a federal purpose (obstacle preemption). (31) Field preemption may exist where a federal regulatory scheme touches an area "in which the federal interest is so dominant" that it may be assumed that Congress intended, or purposed, to preclude state action in that area. (32) Conflict preemption exists where compliance with both the federal and the state or local statute is impossible. (33) Obstacle preemption, sometimes referred to as a species of conflict preemption, exists where the state or local statute stands as an obstacle to the attainment of a federal purpose or goal. (34) When evaluating the implied effects of a federal law, "pre-emption is not to be lightly presumed." (35) Nonetheless, "courts should not strain to find ways to reconcile federal law with seemingly conflicting state law." (36)

   2. Federal Action and Preemption in Immigration Law

      Matters of pure immigration law, i.e., regulations governing the entry of foreign nationals, (37) generally fall within the historic power of the federal government. (38) The Supreme Court has indicated that Congress derives its immigration power from general sovereignty principles and the federal government's authority to conduct foreign policy and commerce. (39) Despite historic federal dominance in the sphere of immigration, states recently began enacting statutes that regulate the lives of immigrants with increasing frequency. (40) These statutes, defended by state governments as public safety ordinances (41)--matters of traditional state police power--have created the present conflict between historic state police powers and the federal government's dominance in the field of immigration. For the Court's preemption analysis, it is important to first establish whether these state statutes qualify as traditional exercises of state power, thereby creating a presumption that Congress does not intend to preempt the statutes. (42)

      Courts and commentators have attempted to distinguish between pure immigration law, including laws that select immigrants, and laws that regulate the lives of immigrants already living in a state. (43) The assumption is that while unauthorized to select immigrants for residency, states have an inherent power to police the interaction between people and institutions within their borders and a legitimate interest in doing so. Thus, state statutes that fall under the umbrella of state regulation, though still affecting the lives of immigrants, should be afforded greater latitude in the immigration sphere and should not be per se preempted by federal law. (44)

      To determine whether a specific state law is preempted by federal immigration law, a court should start by determining the purpose and scope of federal regulations. The "primary body" (45) of federal immigration law is found in the Immigration and Nationality Act (46) (INA), which "establishe[s] a 'comprehensive federal statutory scheme for regulation of immigration and naturalization.'" (47) The INA sets forth the legal definition of "aliens" (48) and generally governs the freedom afforded to non-U.S, citizens when they attempt to "enter, visit, and reside in [the United States]." (49) Most importantly, the INA provides the "sole and exclusive procedure" for...