Papers, please: does the constitution permit the states a role in immigration enforcement?

• Author: Eastman, John C.
• Position: Age of Austerity

Arizona kicked up quite a dust storm in 2010 when it enacted Senate Bill 1070 (S.B. 1070). (1) Proponents hoped the law would help Arizona control the burgeoning illegal immigration into the state and its attendant costs--costs that affect the financial stability of the state, the safety of its residents, and the very rule of law itself. The legal professoriate almost uniformly derided Arizona's new law as an unconstitutional usurpation of immigration policy--an area that the Constitution assigns exclusively to the federal government. (2) In particular, commentators targeted Section 2 of the law, which requires police officers to verify the immigration status of anyone who is lawfully detained, contending that it is patently unconstitutional under Hines v. Davidowitz (3) and would require racial profiling. (4)

Critics similarly derided Alabama's new immigration law, particularly Section 28 of the Taxpayer and Citizen Protection Act, (5) which requires every public elementary and secondary school in the state to determine if an enrolling student is lawfully present in the United States. (6) Critics contended that the law ran afoul of the 1982 case of Plyler v. Doe, (7) in which the Supreme Court held that denying free public school education to illegal immigrants violates the Fourteenth Amendment's requirement of equal protection. (8)

This Essay explores the legal challenges to the two statutes, addresses how the Department of Justice (DOJ) fundamentally misunderstands the nature of state sovereignty and federalism, and concludes that, with the possible exception of one provision of the Arizona law, the states are acting well within their authority to protect the health, safety, and welfare of their residents without intruding on the plenary power over immigration and naturalization that the U.S. Constitution vests in Congress.

1. ARIZONA'S S.B. 1070

   "In response to a serious problem of unauthorized immigration along the Arizona-Mexico border, the State of Arizona enacted its own immigration law enforcement policy" in April 2010, making "attrition through enforcement the public policy of all state and local government agencies in Arizona." (9) Thus begins the Ninth Circuit's opinion addressing the constitutional challenges to the Arizona law, and although that court affirmed the district court's preliminary injunction of portions of the law, (10) the description of Arizona's purpose is almost entirely correct. Arizona does have a serious problem with illegal immigration. As the district court more emphatically described the situation, the Arizona legislature adopted S.B. 1070 "[a]gainst a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns." (11) Additionally, S.B. 1070 explicitly describes its purpose as "attrition through enforcement" (12) and sets out Arizona's policy for how state law enforcement deals with issues related to illegal immigration in the state.

   Although one might quite properly take issue with the Ninth Circuit's substitution of the word "unauthorized" for "illegal" as a ratification of the Orwellian effort by many in the proillegal immigration movement to use more innocuous words like "undocumented" or "unauthorized" to minimize the illegality of illegal immigration, that semantic fight is a sideshow that does not really affect the merits of the legal challenge. More relevant to the substance of the challenge, and more in dispute, is the loaded use of the word "own." Whether Arizona has embarked upon its "own" immigration policy or simply directed its law enforcement officials to help with the enforcement of federal immigration law, is, of course, the crux of the dispute. The same preamble that contains the "attrition through enforcement" language also mentions the legislature's finding that the state has "a compelling interest in the cooperative enforcement of federal immigration laws...." (13) Moreover, the Act expressly provides that the terms of the statute "shall be construed to have the meanings given to them under federal immigration law" (14) and that the "act shall be implemented in a manner consistent with federal laws regulating immigration...." (15) This language rebuts the notion that Arizona has somehow embarked upon a maverick course to develop its own rules regarding immigration into the state.

   The Arizona statute, officially called the "Support Our Law Enforcement and Safe Neighborhoods Act," (16) contains ten operative sections. Section 2, which in turn is broken down into ten subparts, prohibits Arizona officials, agencies, and political subdivisions from limiting enforcement of federal immigration laws; requires that they work with federal officials regarding unlawfully present aliens; and authorizes suits by lawful Arizona residents against any Arizona official, agency, or political subdivision that adopts a policy of restricting enforcement of federal immigration laws. (17) Subsection (K) specifically provides that the Section "shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens." (18)

   The remaining subdivision of Section 2 has generated most of the controversy. With the amendments adopted seven days after passage of the original bill, H.B. 2162 Subsection (B) provides in full: (19)

   For any lawful [begin strikethrough]contact[end strikethrough] STOP, DETENTION OR ARREST made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state IN THE ENFORCEMENT OF ANY OTHER LAW OR ORDINANCE OF A COUNTY, CITY OR TOWN OR THIS STATE where reasonable suspicion exists that the person is an alien [begin strikethrough]who[end strikethrough] AND is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released. The person's immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c). A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not [begin strikethrough]solely[end strikethrough] consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution. A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following: 1. A valid Arizona driver license.

   2. A valid Arizona nonoperating identification license.

   3. A valid tribal enrollment card or other form of tribal identification.

   4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification. (20)

   Another provision of S.B. 1070, Section 3, creates a new state crime for conduct that is already a crime under federal law: failure to carry immigration papers. (21) The provision imposes the identical punishment provided by federal law, (22) and expressly "does not apply to a person who maintains authorization from the federal government to remain in the United States." (23)

   Section 4 amends the existing Arizona law targeting human smuggling (already broadly defined to include knowingly facilitating the transportation of persons not lawfully in the United States or who have attempted to enter, entered, or remained in the United States in violation of federal law) (24) "for profit or commercial purpose," by allowing a peace officer to lawfully stop anyone operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any civil traffic law. (25)

   Section 5 makes it illegal to hire workers from a motor vehicle (or to be so hired) if the motor vehicle blocks or impedes the normal flow of traffic; (26) to seek employment as an unauthorized alien (as defined by federal law); (27) and to transport, conceal or harbor illegal aliens in furtherance of the illegal presence of the alien in the United States (with vehicles used for the purpose subject to impoundment, per Section 10 of the Act). (28) As amended, this Section expressly provides that law enforcement officials "may not consider race, color or national origin in the enforcement of [Section 5] except to the extent permitted by the United States or Arizona Constitution." (29)

   In the remaining sections, Section 6 allows law enforcement officers to make a warrantless arrest if they have probable cause to believe the person has committed a public offense that makes that person removable (deportable) from the United States. (30) Sections 7 and 8 add an entrapment affirmative defense to the Arizona law revoking the business licenses of businesses knowingly hiring illegal immigrants, (31) a law that the Supreme Court upheld against a federal preemption challenge in Chamber of Commerce v. Whiting. (32) Section 9 adds a record-keeping requirement to the existing E-Verify employment eligibility provisions of Arizona law. (33) Section 10 adds the transportation and harboring of illegal aliens to the list of grounds for motor vehicle impoundment, (34) and Section 11 creates the Gang and Immigration Intelligence Team Enforcement Mission Fund, for gang and immigration enforcement and to reimburse county jails for incarceration costs related to illegal immigration. (35)

   In response to a lawsuit the DOJ filed against Arizona, the United States District Court for the District of Arizona preliminarily enjoined four...