W&L Immigration Clinic Director Analyzes Supreme Court Arizona Ruling

Lexington, VA Tuesday, June 26, 2012

On Monday, the U.S. Supreme Court announced its decision in Arizona v. United States, the federal government's challenge of Arizona's controversial immigration law. Aaron Haas, who directs the Immigration and Citizenship Clinic at Washington and Lee School of Law, broke down the decision, which overturned three of the law's four provisions on the grounds that the provisions are preempted by federal immigration laws.

Aaron Haas

The Arizona v. United States decision has been closely watched by immigration attorneys because it marks the biggest legal clash of the two most dominant approaches to immigration law and policy today.

On the one hand, you have the "enforcement through attrition" policy, sometimes called self-deportation. This approach sees the fundamental problem with the immigration system today as the failure to follow the law on the part of immigrants and to enforce the law on the part of the government. The solution is to enforce the law more rigorously in order to achieve a reduction in the presence of illegal immigrants. Recognizing the impossibility of deporting 12 million people, the basic concept is to make life so unpleasant and difficult for illegal immigrants that they will leave of their own accord. The Arizona law was the most well known, though by no means the only, state law pursuing this policy.

The alternative approach sees the fundamental problem with today's immigration system as a mismatch between an economic system that relies on and attracts large numbers of immigrants and a legal system that does not accommodate economic realities. The solution is a system that brings economic and legal realities into better alignment. Under this approach, better enforcement is needed as a way to build support for reforming the system, through a comprehensive overhaul typically called Comprehensive Immigration Reform (CIR). Comprehensive Immigration Reform calls for a three-pronged approach: better enforcement primarily through the use of technology to prevent illegal border-crossing and employment, a temporary worker program, and a pathway to legalization for undocumented aliens already here.

It is clear that this latter kind of reform will not pass Congress in the foreseeable future, so its adherents have pushed for maximum use of administrative action to at least limit deportations in the cases of the most sympathetic aliens. The Obama administration has agreed by introducing a new policy of prosecutorial discretion to stop deportations against some aliens.  Another part the Obama administration's strategy is to challenge state policies that promote the attrition strategy.

This is where Arizona v. U.S. comes in. In this case four provisions of the Arizona law were at issue. Section 3 makes it a state crime to violate a federal law requiring all aliens to register with the federal government. Section 5(C) makes it a state crime for an undocumented alien to seek or obtain employment. Section 6 authorizes state and local law enforcement to arrest someone without a warrant for whom there is probable cause he has committed a removable offense. Section 2(B) authorizes law enforcement to make a "reasonable attempt" to determine the immigration status of anyone who is otherwise lawfully detained if there is "reasonable suspicion" that the person is illegal. This last provision, derided as the "show me your papers" law, has garnered the most attention. The Court ruled that the first three provisions were unconstitutional because they were preempted by the federal government. The Court ruled that the fourth provision was not facially void, but could be challenged in the future depending on how it is applied and interpreted by state courts.

Section 3 makes it a state crime to violate the federal alien registration laws. This was struck down under field preemption, meaning Congress occupied the field given a prior precedent (Hines v. Davidowitz) that created a "complete system for alien registration" that states could not "curtail or complement" or "enforce additional or auxiliary regulations." Likewise, Section 5(C) was struck because Congress occupied the field of regulating alien employment. Congress passed a law in 1986 that specifically made it a crime for employers to hire unauthorized workers but not a crime for an unauthorized person to accept employment. A conscious decision was made to place enforcement on the employer side and not the employee side. Arizona's law obviously upset this scheme.

Section 6 is more confusing, but basically authorizes Arizona law enforcement to arrest someone without a warrant who committed a crime in any state that would subject that person to deportation under federal law. The Court found this problematic because it seems to either make it a crime to have committed another crime elsewhere or to allow a person to be arrested without a warrant even though he is not being charged with a crime. While immigration authorities can arrest someone who is deportable, that is not a power the federal government has given to state and local law enforcement except under limited circumstances. These limited circumstances consist of state-local cooperation that are specifically authorized by the federal government and have certain protections, such as training of law enforcement in immigration law. The Arizona law expanded local law enforcement participation well beyond what the federal government intended and was therefore preempted.

Section 2(B) was the section that was the most controversial and that looked like it was going to be upheld after oral argument. The decision was mixed, largely due to the vague wording of the statutes, particularly the double use of the work "reasonable". Here it is important to note one important procedural feature of this case, which is that it is actually an appeal of a preliminary injunction and not of the underlying statute. Of course, the underlying statute comes into play because the Court has to decide if the federal government is likely to win on the merits in order to sustain the preliminary injunction. But, the procedural posture may have mattered here because the Court essentially said that it was too early to rule on the constitutionality of this provision. Because the law was open to different interpretations and had not been interpreted by state courts or put into force, it was not clear whether it was unconstitutional. The Court seemed to be sending a signal to state courts that their interpretation of the law would be subject to challenge.

Immigration advocates of course interpret this as an invitation for an as-applied challenge. They are already on the ground gathering stories of ethnic profiling and unlawful detentions in preparation for these lawsuits, thus creating a good chance that this law comes before the Supreme Court again in the near future. The big concerns are profiling and copycat laws. Will this lead to harassment of Hispanics and other minorities and will these kinds of laws spread throughout the country?

Two other features of the opinion are significant. First, the majority opinion, written by Justice Kennedy and joined by Justices Breyer, Ginsburg, Sotomayor and Roberts (Kagan recused herself), seems to endorse discretion in immigration enforcement. Kennedy writes, "A principal feature of the removal system is the broad discretion exercised by immigration officials." This could be read as an endorsement of the cornerstone of Obama's new strategy of using discretion in the enforcement of the immigration laws. This policy has been derided by opponents as "back-door amnesty" but it has not been tested in the courts.

Justice Scalia's dissent was also significant. He puts forward the theory that immigration is not an exclusively federal matter, and that States, as independent sovereigns, can have independent immigration policies, as long as they do not directly conflict with federal policy. In fact, he calls the power to exclude aliens "the core of state sovereignty." This is actually more radical than it sounds. It has been settled for well over a hundred years that immigration policy is exclusively under federal domain because it implicates relations with foreign nations and their citizens. Scalia seems to be calling into question the plenary power doctrine that has served as the foundation of immigration law since the late 1800's. In recent years, the Court has increasingly questioned that aspect of the plenary power doctrine that favors Congress over the courts in immigration law. Scalia seems to be opening up the question of the part of that doctrine that favors the federal government over the states.

Ultimately, these issues may be resolved less by the courts than by the election. Obama has clearly thrown in his lot with discretionary enforcement in the short-term and comprehensive immigration reform in the long-term. Mitt Romney has endorsed the policy of self-deportation, opposes legalization and the Dream Act, and favors laws like the Arizona law. As important as this decision is, the decision of the voters in November may have more lasting impact.

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