Constitutional Interpretation Brief – Arizona SB 1070

Statement of the Facts

The United States currently faces a tremendous burden regarding the constant flow of illegal immigrants across its borders.  The gridlock that remains in the polity of Washington, DC over the immigration issue, combined with the increasing rates of crime, border killings, gang violence and drug cartel skirmishes is forcing Border States to begin seeking alternative local solutions.  According to Joseph Kanefield, General Counsel for the Office of the Governor of Arizona:

The federal government has failed to secure Arizona’s border.  It is estimated that 50% of illegal aliens enter the United States through Arizona. Criminal aliens are estimated by the Arizona Department of Corrections to constitute 17% of the Arizona prison population.  Illegal immigration costs Arizona an estimated $2 billion per year.[1]

In the interest of protecting their public citizenry, Border States such as Arizona have decided to take matters into their own hands.  Arizona State legislature passed Senate Bill 1070 (A.R.S. § 11-1051 (B)), also known as the Support Our Law Enforcement and Safe Neighborhoods Act.   The recent passage of this law is a direct response to the lack of enforcement by the federal government of current immigration laws and border security.  Where the government has failed, the states must insert themselves to assist and cooperate where possible.  Doing so does not preempt federal law.

The law has been stifled in the Ninth Circuit Court with an injunction.  Arizona seeks the reversal of this injunction in the United States Supreme Court.  State and local law enforcement authorities have established state police powers that apply to a broad range of crimes.  Creating state laws that mirror those of the federal government regarding immigration does not preempt federal powers.  It only serves to assist those powers through cooperation (as deemed appropriate by the Immigration and Naturalization Act) to promote and protect the public safety of the citizens of Arizona.

The United States seeks to have the Court declare Arizona SB 1070 completely unconstitutional.  They deem the law as field and conflict preemptive in nature, and contend that the entirety of immigration falls under exclusive congressional power as supported by the Supremacy Clause.  Yet the government faces a heavy burden of proof in the lack of sufficient constitutional and legal authorities supporting their claim.  They also face historical and traditional premises of which they cannot circumvent.  Therefore, the government’s claim that Arizona AB 1070 is unconstitutional is false.

Question Presented

Does Arizona SB 1070 preempt and irreparably harm federal constitutional powers involving immigration, or does the state law promote cooperative concurrent powers that mirror, assist and benefit the federal government?

Argument

Arizona SB 1070 has met with an enormous storm of public and legal criticisms, the strongest of which is the challenge to the constitutionality of Section 2(B).  Particularly, the federal government is pursuing the argument that our bill preempts federal immigration laws already in place, thereby violating the Supremacy Clause of the United States Constitution.  Notably, they have limited the focus of their dispute to Section 2(B), which states:

For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or…law enforcement agency…in the enforcement of any other law or ordinance of a county, city or town of this state where reasonable suspicion exists that the person is an alien 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.[2]

The government contends that enforcement of Section 2(B) may harass certain lawfully present aliens, burden or consume federal resources, blur the current ability of immigration officials  to administer and enforce immigration laws, and cause the spread of a variety of mini-immigration laws throughout other individual states (undermining the federal immigration stance.  They intend to demonstrate implied field preemption in order to prove the unconstitutionality of Arizona SB 1070.  They are relying on the Supremacy Clause, which states:

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, anything in the Constitution or laws of any State to the contrary notwithstanding.[3]

The fallacy of the government’s case centers on their total disregard of the historical and precedential origins, as well as the meaning of concurrent powers.   Clearly stated, Arizona does not seek to take over the control of immigration.  Arizona, however, does see it within its historical and constitutionally promoted right to assist the federal government when and where necessary.  It does not seek to share control.  Rather, Arizona seeks to be another means to the ends the Congress employs.  There is no preemption, only reaction.  Arizona SB 1070 is a reaction to the lack of the Congress to exert its plenary will to uphold its social contract with its people.  Where Congress falls short, states must insert themselves to assist.  Therefore, we must ask the following:

1.       Is this not what legislative acts and Supreme Court decisions warrant? (stare decsisis)

2.       Is this not what the founding fathers and framers promote in the U.S. Constitution itself?

3.       Is this not what the Department of Justice and other government acts already stipulate?

Concurrent powers are “those exercised independently in the same field of legislation by both federal and state governments, as in the case of the power to tax or to make bankruptcy laws.”[4] Just as the Congress has the power to levy taxes on the citizens of the nation, so too may the states choose to levy taxes on their citizens.  Such state action does not preempt the federal government in the field of raising revenue.  By the same argument, what happens during a terrorist attack?  Given that the field of terrorism falls within the federal sphere, would local and State first responders be precluded from assisting on-location?  Would they have to stand fast and wait for federal authorities to arrive and offer permission to proceed?  Such logic is impractical.  Former Supreme Court Justice Joseph Story agrees in Rules of Interpretation of the Constitution:

It has been sometimes argued, that when a power is granted to congress to legislate in specific cases, for purposes growing out of the union, the natural conclusion is, that the power is designed to be exclusive…upon this reasoning the power of taxation in congress would annul the whole power of taxation of the states; and thus operate a virtual dissolution of their sovereignty.  Such a pretension has been constantly disclaimed.[5]

One of the main co-writers of Arizona SB 1070 is Kris W. Kobach, a law professor at the University of Missouri at Kansas City.  He was also Attorney General John Ashcroft’s chief advisor on immigration law and border security from 2001 to 2003 during the Bush Administration.  Kobach argues assertively for concurrent powers.  In application to Arizona SB 1070, Kobach insists there is neither interference nor preemption, only cooperation.

It holds that a law is not conflict-preempted if the state law prohibits the same behavior that is already prohibited by federal law.  Similarly, if a state officer acts in a way to assist the federal government in that action, he concurrently enforces what is already prohibited under federal law.[6]

In a recent New York Times op-ed piece, Kobach writes, “the Supreme Court since 1976 has recognized that states may enact laws to discourage illegal immigration without being pre-empted by federal law.”[7] Kobach argues that the preemption argument would only succeed if there were a statute enacted by Congress prohibiting Arizona from enforcing SB 1070.

The problem here is that no such legislation exists.  While controlling immigration is a job of the federal government, Congress has never enacted a statute that expressly bars states from assisting it in the manner contemplated by the Arizona statute.[8]

Thus ruling out express preemption, Kobach points to several cases of precedent that make implied preemption a tough sell.  “Arizona’s 2007 law making it illegal to knowingly employ unauthorized aliens was sustained by the U.S. Court of Appeals for the Ninth Circuit.”[9]

The battle between federal government and states’ rights goes all the way back to federalism.  It has reared its head in cases as early as MCCULLOCH v. MARYLAND, 17 U.S. 316 (1819), in the Taney Courts (1836-1864), and in contemporary legal cases.  It goes without question that the right of the federal government to set immigration quotas and criteria, along with enforcement, is exclusive.  The means to assist the enforcement of federal laws, however, are not exclusive.  They are concurrent duties.  As Kobach suggests, several cases of precedent apply.   Starting with DE CANAS v. BICA, 424 U.S. 351 (1976), the Supreme Court upheld that states may enact legislation to discourage illegal immigration within their jurisdiction, as long as their actions do not conflict with federal law.  It gives considerable leeway to states in their ability to enact legislation that assists in the area of immigration.  In GONZALES v. CITY OF PEORIA, 722 F.2d 468 (9th Cir. 1983), the Ninth Circuit recognized that “where state enforcement activities do not impair federal regulatory interests concurrent enforcement activity is authorized.” In other words, it allows cooperation.  Since this ruling, Executive agencies and Congress have done much to promote this cooperation, as will be touched on later in the brief.

PACIFIC GAS & ELEC. v. ENERGY RESOURCES COMM’N, 461 U.S. 190 (1983), a case involving the regulation of nuclear power plants, held that state regulation of economic issues regarding such plants was not preempted by federal powers found in the Atomic Energy Act (1954).  It set the legal framework for preemption issues that followed.  PRINTZ v. UNITED STATES, 117 S. Ct. 2365 (1997) ruled that certain provisions of the Brady Handgun Violence Prevention Act as unconstitutional.  Specifically, it objected to the ability of the Federal government to compel state officials to enforce federal law.  Therefore, it became in the interest of the federal government to promote and solicit cooperation with state and local law enforcement.  Again, the brief will discuss such encouragement in subsequent paragraphs.

STURGES v. CROWNINSHIELD, 17 U.S. 122 (1819) involved New York’s ability to pass bankruptcy laws in the absence of existing congressional legislation.  Where no previous congressional legislation exists preventing the states from action, states may act insofar as that action does not preempt federal authority.  No legislation exists that prevents Arizona from enacting SB 1070 in both the attempt to discourage illegal immigration within Arizona and the need to identify status once reasonable suspicion is in play.  In CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997), the court ruled to restrain congressional reach into states’ rights established through history.  Again, as we will see in the next paragraphs, this is based on the states having traditional authorities prior to and upon their entrance into the Union.

As shown, stare decisis alone is sufficient to prove that Arizona is well within its right to enact SB 1070.  Yet, the historic ideologies of our nation’s founding also bear fruit in this discussion.  Prior to its formation, the U.S. Constitution was framed by bitter debates between Federalist and Anti-Federalists over the preservation of certain states’ rights, regardless of the formation of a centralized government.  In Federalist 27, Alexander Hamilton proposed concurrent powers of the states as a natural incorporation to assist and benefit the central government, stating that

“…by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws.” (emphasis added)[10]

Further, Hamilton adds that

“the Legislatures, Courts and Magistrates of the respective members will be incorporated into the operations of the national government, as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws.” (emphasis added)[11]

In PRINTZ v. UNITED STATES, 117 S. Ct. 2365 (1997), a dissenting Justice Souter sought to further clarify Hamilton. “The States incorporated a national oath through the Supremacy Clause, as well as the state officers’ oath requirement, which incorporates the states into the national machine.”[12]

In Federalist 32, Hamilton provides the test for preemption, stating that “the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.” (emphasis added)[13] Only a state law that is “absolutely and totally contradictory and repugnant” is deemed preemptive.[14] In the application of this standard, the inquiry of the status of an illegal immigrant and the detention of that illegal immigrant for future transfer to federal hands is a means to an end, not a preemptive measure that inhibits the federal exercise of its immigration powers.  The means are not exclusively delegated to the central government, only the ends itself.  That is to say, exclusivity lay only in the ends – control, enforcement and regulation of immigration.  Arizona SB 1070 retains the nonexclusive right to various means of assistance to help achieve the ends of the national government.

If stare decisis and the historical roots of federalism are not enough, perhaps recent federal government agency actions make the best case for Arizona.  The U.S. Department of Justice, the very department leading the suit against Arizona, has already come out in support of the principles of Arizona SB 1070 in an April 3, 2002 department memo.  That memo explicitly calls upon the states to cooperate in the very means Arizona SB 1070 advocates:

Beyond lacking any legal support, the contrary conclusion – i.e., that States, through their police, may exercise only the arrest power that Congress has affirmatively authorized – would dramatically upset settled practices.  Under such a conclusion, state police would not have any authority to make warrantless arrests for federal offenses.  In Judge Hand’s words, we would have to “say that there is no means of securing offenders caught in flagrante, a result which would so impair the execution of the laws that it seems to us incredible it should have been intended.” Marsh, 29 F.2d at 174. Nor is it clear that Congress could delegate such unsupervised authority to the States. [15]

Thus, Arizona SB 1070 assists in the securing of illegal immigrants and fulfills the balance of settled practices.  Arizona SB 1070 seeks to assist with status inquiries under criminal suspicion.  It also assists with the apprehension and the detention of illegal immigrants for transfer to federal hands.  Not enacting SB 1070, or the equivalent of doing nothing, will actually impair the execution of federal immigration laws.  State police powers are completely relevant and part of historic sovereignty.  As the memo states,

We…do not believe that the authority of state police to make arrests for violation of federal law is limited to those instances in which they are exercising delegated federal power.  We instead believe that such arrest authority inheres in the States’ status as sovereign entities. (emphasis added)[16]

Further, given the current problems faced by the government regarding illegal immigration, the federal government should not deny any possible assistance from the states.  The DOJ memo logically concludes that

(1) states have inherent power, subject to federal preemption, to make arrests for violation of federal law. (2) Because it is ordinarily unreasonable to assume that congress intended to deprive the federal government of whatever assistance States may provide in identifying and detaining those who have violated federal law, federal statutes should be presumed not to preempt this arrest authority.  This Office’s 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken.  (3) Section 1252c (of the INA) does not preempt state authority to arrest for federal violations. [17]

Arizona SB 1070 also supports the Immigration and Nationality Act of 1996. In §287 [8 U.S.C. 1357], the INA promotes “a law enforcement partnership”, a cooperative relationship, in the “investigation, apprehension or detention of aliens in the United States.”[18] In addition, SB 1070 supports the application of the cooperative program named Operation Stonegarden.  Enacted in 2009, the intent of Operation Stonegarden is to provide

funding to designated localities to enhance cooperation and coordination between Federal, State, local, and tribal law enforcement agencies in a joint mission to secure the United States borders along routes of ingress from International borders to include travel corridors in States bordering Mexico and Canada, as well as States and territories with International water borders. (emphasis added)[19]

Moreover, the DOJ offers financial assistance to states encouraging the concurrent participation in determining immigration status.  Arizona SB 1070 provides the necessary means to gather information critical to obtaining reimbursement from SCAAP.[20] Finally, Bill Clinton signed into law the Acceptance of State Services to Carry Out Immigration Enforcement bill in 1996.[21] According to the bill:

…the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers).[22]

As demonstrated, these recent government actions consistently promote the spirit of cooperation through concurrent powers.  Why, then, does the government insist on changing this now by blocking Arizona SB 1070?   As the DOJ quotes in their own memo, would it not “dramatically upset settled practices” of enforcement?[23]

Conclusion

Arizona is well within its historic and Constitutional rights to enact all parts of Arizona 1070 in respect of its concurrent powers and privileges construed both from the very beginnings of Federalist Constitutional framing and from several cases of precedent.  The false perception that this law will allow officers to actively seek out and deport illegal immigrants at the detriment to federal power is thrown about with abandon.  In reality, Arizona SB 1070 does not promote active search, deportation, or any other enforcement action in conflict with federal purview.  Rather, it deploys a cooperative tool, another means that assists the federal government to achieve its ends.

Arizona SB 1070 does not field preempt the immigration regulatory activities of the federal government.  It aids in the apprehension and transfer of illegal immigrants into federal hands.  It also does not conflict-preempt.  It does not stand in the way as an obstacle to federal immigration law.  On the contrary, it aids the federal government by providing more cooperative immigration assistance, which, according to the DOJ itself, the government should not logically refuse.  If state assistance were unnecessary, established provisions existing in the INA, Operation Stonegarden, SCAAP and other DOJ memos would not encourage it.

Thomas Jefferson believed that the states had the power to decide constitutional issues in order to maintain the liberties and rights of the people.  The true threat to our Constitution is not Arizona SB 1070.  The true failure rests with inaction and political posturing in Washington, DC.  Further, threats to citizens in border states create a necessity of action to restore and promote the general welfare of their citizens.  Arizona Governor Jan Brewer agrees. “We are seeing people still afraid down along the southern border who do not feel safe in their homes.  It’s just something we cannot and will not tolerate.”[24]

When the Congress (government) fails to address the needs of its citizens, it is the reserved right of the states to assist, as determined historically by the very will of the people who have entered into social compact with both the state and the union.  Border states are on the front lines of the illegal immigration issue.  Their direct, firsthand experience with this problem can only serve to assist the federal government to achieve its ends.  Enact Arizona SB 1070 immediately to allow Arizona officials to enhance cooperation with federal immigration efforts.

Authorities

The Constitution of the United States

U.S. Const. Art. II, § 8

U.S. Const. Art. VI, cl. 2

Legal Authorities

CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997)

DE CANAS v. BICA, 424 U.S. 351 (1976)

GONZALES v. CITY OF PEORIA, 722 F.2d 468 (9th Cir. 1983).

MCCULLOCH v. MARYLAND, 17 U.S. 316 (1819)

PACIFIC GAS & ELEC. v. ENERGY RESOURCES COMM’N, 461 U.S. 190 (1983)

PRINTZ v. UNITED STATES, 117 S. Ct. 2365 (1997)

STURGES v. CROWNINSHIELD, 17 U.S. 122 (1819)

Legal Codes

8 USC 1357 – § 1357. Powers of Immigration Officers and Employees

FEMA – Operation Stonegarden at http://www.fema.gov/government/grant/opsg/index.shtm

Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) – Tit. I, Sub. C, § 131 (1996) – Acceptance of State Services to Carry out Immigration Enforcement

Immigration and Nationality Act; Delegation of Immigration Authority, § 287(g) at http://www.ice.gov/news/library/factsheets/287g.htm &

U.S. Citizenship and Immigration Services Website

State Criminal Alien Assistance Program (SCAAP) at http://www.ojp.usdoj.gov/BJA/grant/scaap.html

Government Memos

Bybee, Jay S., Assistant Attorney General, Memorandum for the Attorney General, U.S. Dept. of Justice,               Office of Legal Council, April 3, 2002, at

Kanefield, Joseph, General Counsel, Office of the Governor, RE: Appeal in UNITED STATES v. ARIZONA, Nov. 9, 2010.

Books

Erler, Edward J., Concurrent Powers, in The Encyclopedia of the American Constitution (New York: Macmillan Publishing Company, 1986).

Hamilton, Alexander, James Madison & John Jay.  The Federalist Papers by Alexander Hamilton, James Madison & John Jay (New York: Bantam Classics, 1982).

Story, Joseph, Commentaries on the Constitution of the United States, Vol. 1: 407-449. (Boston: Hilliard, Gray & Co., 1833).

Press

Coyle, Marcia, The Law Prof Behind the Arizona Immigration Law, National Law Journal, April 29, 2010, at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202456983126.

Dvorak, Kimberly,  Liberal 9th Circuit Judges Hear Arizona’s Immigration SB1070 Arguments, The Examiner, Nov. 1, 2010, at http://www.examiner.com/county-political-buzz-in-san-diego/liberal-9th-circuit-judges-hear-arizona-s-immigration-sb1070-arguments.

Kobach, Kris W., Defending Arizona, The National Review, June 7, 2010, at 32.

Kobach, Kris W., Why Arizona Drew a Line, New York Times, April 28, 2010, at A31.

 

 


[1] Joseph Kanefield, General Counsel, Office of the Governor, RE: Appeal in UNITED STATES v. ARIZONA, Nov. 9, 2010, at WFU Sakai.

[2] §2(B) – Senate Bill 1070 (A.R.S. § 11-1051(B)

[3] U.S. Const. Art. VI, cl. 2

[4] Edward J. Erler, Concurrent Powers, in Encyclopedia Of The American Constitution (1986).

[5] Joseph Story, Commentaries on the Constitution of the United States, 1 Book 1, Ch. 5, §444 (1833).

[6] Marcia Coyle, The Law Prof Behind the Arizona Immigration Law, National Law Journal (April 29, 2010), at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202456983126.

[7] Kris Kobach, Why Arizona Drew a Line, New York Times, April 28, 2010, at A31.

[8] Kris Kobach, Defending Arizona, The National Review, June 7, 2010, at 32.

[9] Kris Kobach, Why Arizona Drew a Line, New York Times, April 28, 2010, at A31.

[10] Alexander Hamilton, The Federalist Papers (1982), at 133.

[11] Alexander Hamilton, The Federalist Papers (1982), at 133.

[12] PRINTZ v. UNITED STATES, 117 S. Ct. 2365 (1997)

[13] Alexander Hamilton, The Federalist Papers (1982), at 152.

[14] Alexander Hamilton, The Federalist Papers (1982), at 152.

[15] Jay S. Bybee, Memorandum for the Attorney General, U.S. Dept. of Justice, Office of Legal Council, USDOJ, §1, par. 7 (April 3,   2002).

[16] Jay S. Bybee, Memorandum for the Attorney General, U.S. Dept. of Justice, Office of Legal Council, USDOJ, §2, par. 3 (April 3, 2002).

[17] Jay S. Bybee, Memorandum for the Attorney General, U.S. Dept. of Justice, Office of Legal Council, USDOJ, §5 (April 3, 2002).

[18] Immigration and Nationality Act,at U.S. Citizenship and Immigration Services Website

[19] FEMA, FY2009 Operation Stonegarden, at http://www.fema.gov/government/grant/opsg/index.shtm

[20] SCAAP is the State Criminal Alien Assistance Program, at http://www.ojp.usdoj.gov/BJA/grant/scaap.html

[21] Illegal Immigration Reform and Immigrant Responsibility Act (“IRRIRA”), Tit. I, Sub. C, § 131 (1996)

[22] Acceptance of State Services to Carry out Immigration Enforcement, IIRIRA Tit. I, Sub. C, § 131 (1996).

[23] Jay S. Bybee, Memorandum for the Attorney General, U.S. Dept. of Justice, Office of Legal Council, USDOJ, §1, par. 7 (April 3, 2002).

[24] Kimberly Dvorak, Liberal 9th Circuit Judges Hear Arizona’s Immigration SB1070 Arguments, The Examiner, Nov. 1, 2010, at http://www.examiner.com/county-political-buzz-in-san-diego/liberal-9th-circuit-judges-hear-arizona-s-immigration-sb1070-arguments