CQ WEEKLY – IN FOCUS
Dec. 22, 2011 – 11:19 a.m.
Of Boundaries and Borders: Court Case Seeks the Line
By David Harrison, CQ Staff
Arizona’s tough new immigration measure has aroused passions on both sides of the debate over the issue ever since Republican Gov.
The case rests solely on the question of the relative authority of state and federal governments to enforce federal laws. Arizona’s statute, known as SB 1070, requires that state and local law enforcement assume some of the immigration enforcement duties that traditionally have been carried out by federal agents. In particular, the law lets state and local police check the immigration status of people they stop or arrest.
The Justice Department says major parts of the law should be struck down because they are pre-empted by the federal government’s constitutionally mandated authority in all immigration matters. Arizona officials counter that Congress and the Obama administration have left them no choice but to take matters into their own hands.
Observers looking for the court to set a bright line demarcating where states’ authority ends and the federal government’s begins could be disappointed. Legal experts say the court will probably not spell out precisely how much enforcement power states can assert but will stick to the case at hand with a narrow ruling.
“The court loves to do this: address what’s before them without speaking too broadly,” says Karen Tumlin, managing attorney for the National Immigration Law Center, which advocates for illegal immigrants.
But Kevin Johnson, dean of the University of California (Davis) School of Law, says the court could be looking to provide a way forward for states.
“One of the reasons they took this case, I would think, is they would want to give some guidance for the states about what they can do so they don’t have to deal with this next year or the year after that,” he says.
But now that Justice
The decision, expected next summer, could spark another flare-up over immigration in the presidential campaign. Many Republicans back strong action against illegal immigration, but party leaders are wary of rhetoric that antagonizes Hispanics, the fastest-growing demographic group.
Lack of Definition
Congress is to blame for much of that confusion, say advocates on both sides of the issue. The best way to settle the boundary between state and federal roles would be for lawmakers to spell it out in legislation. But Congress has been reluctant to take major action on immigration since a carefully balanced law in 1986 that made millions of illegal immigrants eligible for amnesty while also imposing sanctions on employers who hire undocumented workers. A 1996 update gave states and local government the ability to cooperate with the federal government in immigration enforcement, but only with the approval of federal authorities.
By leaving the details to the courts, lawmakers are making it more likely that the ruling on SB 1070 will not be the last word on state immigration laws. In fact, the court’s ruling may not even be the last word on SB 1070. A coalition of advocacy groups is challenging the law on separate grounds, arguing that it violates Fourth Amendment rights against unreasonable search and seizure. The group also contests a provision that bars illegal immigrants from soliciting work, saying it violates the First Amendment. The federal government’s case does not address these civil rights issues.
Another stringent immigration law in Alabama is also working its way up the legal ladder. One provision of that law requires that schools verify the legal status of students, another issue that could end up in the Supreme Court.
Of Boundaries and Borders: Court Case Seeks the Line
If the Court finds that Arizona did encroach on federal powers, at least five state laws modeled on the Arizona statute could be in jeopardy. But if the court finds that Arizona is within its rights, that could set off efforts in other states to test the boundaries of pre-emption.
“The reason this is a problem is that Congress hasn’t made clear enough what is permitted and what isn’t,” says Mark Krikorian, executive director of the Center for Immigration Studies, which calls for stricter enforcement and tighter borders. “This is not a question of constitutional tea-leaf reading, this is really just a matter of interpreting statutes.”
Four Provisions at Issue
State laws to combat illegal immigration were carefully designed to give the states a way to enforce immigration laws without violating federal statutes, says Kris Kobach, a constitutional law scholar who helped draft the 2010 Arizona law as an attorney for the Immigration Reform Law Institute. Kobach, who has since been elected Kansas secretary of state, says he was careful not to overstep the state’s authority as outlined in the Immigration Reform and Control Act of 1986.
In response to the Justice Department’s lawsuit, a district court enjoined part of the Arizona law, and a three-judge panel of the 9th Circuit Court of Appeals upheld that decision. Four provisions of the law were barred from taking effect. The first requires an officer making a regular stop to determine a person’s legal status if he suspects that person is in the country illegally. The second makes it a state crime to not carry legal immigration documents. The third bars illegal immigrants from looking for a job or working in Arizona. The fourth allows officers to make a warrantless arrest of a person whom they believe has committed a crime that would make that person subject to deportation.
According to Arizona’s Supreme Court petition, those provisions should be allowed because federal laws “mandate federal cooperation with state and local efforts to ascertain individuals’ immigration status.”
The appeals court decision “was a 2-to-1 decision, and the majority really had to bend over backwards to come up with an argument as to why the Arizona statute was pre-empted,” Kobach says. “That kind of reasoning works in the 9th Circuit, but it won’t fly in the Supreme Court.”
The Justice Department’s brief says Arizona went beyond simply enforcing federal law by making immigration violations a state crime. The brief asserts that the law places a burden on legal immigrants “that federal immigration law has sought to avoid” by requiring them to carry papers to prove their status. Hispanic groups protest that the law is discriminatory because police are unlikely to demand immigration papers of people who don’t look Latino.
The Justice brief argues that the law conflicts with the government’s discretion in deciding whether to pursue people who have committed violations. While the law “leaves the states able to assist the federal government in carrying out the federal government’s functions, it also makes clear that such assistance must be ‘cooperative’ and must not interfere with the [Homeland Security] secretary’s ultimate authority,” the brief says.
In May, the Supreme Court ruled on a different Arizona case that may be a precursor to the SB 1070 case. In U.S. Chamber of Commerce v. Whiting, the court ruled 5-3 that the federal government did not pre-empt Arizona’s authority to require that all employers run their new hires through an electronic verification system called E-Verify to confirm they were legal residents.
Republicans in Congress have sought to rein in the states in one area by proposing a national employer verification measure that would explicitly pre-empt state efforts. The legislation cleared the House Judiciary Committee in September but has yet to be scheduled for a floor vote.
One lawmaker, Rep.
“These problems were caused by the federal government’s lack of enforcement, which has caused states like Arizona and cities like Hazleton to have to take action on their own and defend themselves,” he says. “The cost of illegal immigration is borne in places like the municipalities and the states and not so much the federal government.”
Of Boundaries and Borders: Court Case Seeks the Line
Democrats counter that instead of increased enforcement, Congress should overhaul immigration law to reflect the fact that there are 11 million undocumented people in the country, far too many to deport. Democrats have traveled to Arizona and Alabama to call for new immigration legislation that would legalize many of the undocumented.
The Justice Department, by narrowly crafting its case, has spared the Supreme Court from having to wade into a partisan minefield. This was intentional, says the University of California’s Johnson. By limiting the case to pre-emption, the government is focusing on the point where it has the strongest chance of winning.
“I think it’s a very powerful argument,” he says. “And the 9th Circuit bought it. You want to have a national regulation of immigration. You don’t want to have states intruding on that.”
It may be a good legal strategy, but it guarantees that many questions will be left unanswered.
FOR FURTHER READING: State immigration laws, CQ Weekly, p. 1365; 1986 law (PL 99-603), 1986 Almanac, p. 61.