This term's last oral argument ends next week with yet another blockbuster case-Arizona v. United States, the challenge to Arizona's harshly anti-immigrant S.B. 1070. This case poses vitally important questions about individual rights, racial profiling, and the future of individual equality in the United States.
But don't expect to hear them argued openly next week.
Instead, arguments will be couched almost entirely in the language of "federal preemption," a subject so abstruse and technical that it induces coma in even the hardiest law-review editors. But lurking underneath the talk of "conflict preemption" and cigarette-labeling statutes are issues of human equality and the emerging constitutional question of our time: When, if ever, are Congress and the executive branch owed deference by the states and by their special protector, the Roberts Court?
The issue is whether four sections of S.B. 1070 usurp the federal government's role in regulating immigration matters-a power the Court, over the years, has described as "plenary." The ambiguity between state and federal policy appears in the first words of the statute:
The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona.
The federal government argues that Arizona has proclaimed its own immigration policy-"attrition through enforcement," which basically means making undocumented aliens' lives so miserable that they leave the state. The state insists that it is only trying to cooperate with the beleaguered feds, who are having trouble securing the border. Courts below found that four sections of the statute conflict with federal law, and are thus preempted:
- Section 2(B) provides that during any lawful "stop, detention or arrest," state law enforcement officers who have "reasonable suspicion" that the person stopped is an unauthorized alien "shall" make a reasonable attempt to determine immigration status, unless doing so will "hinder" the investigation. After an arrest, "[a]ny person who is arrested shall have the person's immigration status determined before the person is released." Verification is to come from federal authorities, and state detention pending verification is mandatory. The language of the statute seems to say that an individual arrested must be detained even if the officers realize afterwards the arrest was a mistake.
- Section 3 makes it a state crime to fail to register with the federal government as an alien and carry those registration documents. (Federal law already requires both.) It does not apply to "a person who maintains authorization from the federal government to remain in the United States."
- Section 5(c) makes it a state crime for undocumented aliens "to knowingly apply for work, solicit work in a public place, or perform work as an employee or a contractor." (Federal law currently imposes no penalty on aliens who work or seek work.)
- Section 6 empowers state law enforcement to arrest without a warrant any person if the officer has probable cause to believe that "the person to be arrested has committed any public offense that makes the person removable from the United States." The offense need not be recent, or committed in Arizona; in fact, it could be an offense committed years before, for which the individual has served a full sentence, but which qualifies for removal under federal immigration law.
There's a theme here-the challenged portions of 1070 all take federal legal standards and make them into Arizona law-enforcement rules. Even when the federal rules don't create federal crimes, they are converted into state criminal-justice issues by 1070. And that's the issue: Can a state "help" the federal government enforce its law even when the federal government doesn't want the "help"-and says in fact that the "help" is hurting?
Arizona insists that S.B. 1070 doesn't conflict with federal law at all: It pursues the same ends-discouraging illegal immigration and preventing illegal immigrants from taking jobs from those lawfully present. In fact, they say, they are cooperating with the federal governments, using their state's "inherent authority" over matters or law enforcement and labor regulation.
The federal government disagrees. Arizona's help, the government argues, is in fact an attempt to control federal policy and impose on it Arizona's preferred policy of "attrition by enforcement." A workable federal policy depends on using discretion to decide which immigration cases to pursue. Under the federal Immigration and Nationality Act, and the regulations that statute authorizes the executive to create, the government can't, and doesn't want to, investigate, imprison, or deport every alien who looks a little suspicious to Maricopa County Sheriff Joe Arpaio. The Department of Homeland Security, the government's brief notes, has decided to focus on detaining and deporting aliens who have committed serious criminal offenses. It has to set up priorities because it "receives sufficient funding to provide for the removal of only about 400,000 aliens per year, whereas an estimated 10.8 millions are unlawfully present." Arizona is like a person who volunteers to "help" you with your grocery shopping but then insists on supplementing the items on your list with 10,000 boxes of Hamburger Helper. It's not help, it's usurpation.
Arizona argues that the statute doesn't conflict with federal law on its face. At least some of the aliens its officers will detain will be ones the federal government wants. That's not the problem, the federal government argues; the problem is that the act tries to take policy discretion away from the federal government. This dispute produced the wittiest sentence I've found in a brief filed with the Court this term: "A stopped clock may be right twice a day," the government argues, "but it is still a facially invalid method of timekeeping."
The government further argues that the provisions banning work by unauthorized aliens directly conflict with a conscious choice Congress made in 1986 to impose penalties on employers who hire unauthorized aliens, but not on the aliens themselves.
The law of preemption will probably matter less than the Court's perception of the federal government's ability to handle the immigration crisis. In effect, Arizona argues, Congress won't fix the problem and the executive branch can't be trusted with discretion. Former Solicitor General Paul Clement is a master of setting the emotional backdrop of a constitutional case; in his opening brief for Arizona, Clement frames the case as a cry for help:
The President fairly describes our Nation's system of immigration regulation and enforcement as "broken." Lack of effective enforcement of the existing immigration rules has permitted an estimated 11 million aliens to reside in the United States unlawfully. Compounding this problem for Arizona is the fact that ... in the last decade federal enforcement efforts have focused primarily on areas in California and Texas, leaving Arizona's border to suffer from comparative neglect.
The implicit argument is that the federal government has delegitimized itself by its paralysis and favoritism. Abandoned by their central government, Arizona has to defend itself. There are echoes here of the recent attack-also led by Clement-on the Affordable Care Act. The backdrop argument there was that Congress is so corrupt and feckless that it can't be trusted with issues of national policy.
There are two central problems with S.B. 1070. The first is that, as Ninth Circuit Judge John Noonan points out in an opinion below, "attrition through enforcement" isn't national policy, it's Arizona's. States aren't empowered to have their own immigration or foreign policies. Allowing states to go after immigrants creates the potential for bad results down the line. Relations with Mexico and other Latin American countries are already being poisoned by the harsh treatment their nationals receive when they enter the United States. In response, Arizona suggests that foreigners have no right to criticize how Arizona treats people within its borders.
The second, more explosive, issue won't be discussed much: Arizona wants to turn a federal policy dispute into a state law-enforcement issue. S.B. 1070 mandates intrusive interrogation, warrantless arrest, and indefinite detention of people who are not wanted for any crime. A number of those affected will be American citizens or legal residents who just happen to look like they're "not from around here." In a state that has already staked a claim to be the Mississippi of the 21st century, the Court's imprimatur on S.B. 1070 will foster a climate of intolerance, penalize lawful immigrants who happen to look suspicious, and take another giant step toward making undocumented aliens a shadow population of serfs with no legal rights against exploitation and no recourse when they are victims of crime. Under the structure of our constitution, aliens in the United States are under the care of the federal government; with other states like Alabama already vying to top Arizona in "toughness," unleashing the states could turn the national atmosphere yet more toxic than it already is.
The immigrant populations who will suffer most from laws like 1070 aren't represented before the Court. As The New York Times reported Thursday morning, they are crouched in the shadows. Next week we will have to strain hard to hear their concerns underneath the lawyers' arguments.
