By University of Arizona College of Law professors Gabriel “Jack” Chin and Marc L. Miller, coauthors with law professor Toni M. Massaro of the ACS Issue Brief, “The Constitutionality of Arizona SB 1070 and Other State Immigration Laws.”
State efforts to regulate immigration have run into a rough stretch lately.
In the 2010 and 2011 legislative sessions, legislators around the country introduced copycat versions of Arizona’s SB1070, designed to drive undocumented immigrants out of the state through a policy of “attrition through enforcement.” (The ACS Issue Brief on the topic is here). Only one of the dozens introduced has actually become law, in Utah. The Utah law’s radical difference from the Arizona statute is exemplified by inclusion of a state level guest worker program designed to allow some undocumented people to stay.
In September, 2010, the Third Circuit invalidated a local anti-immigrant ordinance. The Town of Hazelton imposed local restrictions on employment and housing designed to make it impossible for undocumented people and their families to live in the city.
The latest bad news came on Monday, when a Ninth Circuit panel affirmed all aspects of a July, 2010 injunction against many provisions of SB 1070. The panel decision and partial dissent framed the issues with clarity and precision, making it easy for the Supreme Court to take the case and, in a way, perhaps inviting them to do so.
Parts of the case presented no particular difficulty to the panel, which included Judges Richard Paez, John T. Noonan and Carlos T. Bea. Section 3 of SB 1070 makes it an Arizona crime, as it is under federal law, for undocumented immigrants to fail to register or to carry immigration documents issued to them. The problem is that the Supreme Court has held in Hines v. Davidowitz (1941) that the federal Alien Registration Act of 1940 occupied the field of alien registration to the exclusion of state laws. States may not, the Court explained, “conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.”
Section 5(c) of SB 1070 made it an Arizona crime for an undocumented person to work in Arizona without authorization. But an earlier Ninth Circuit decision had held that Congress consciously decided to focus on employers and not to criminalize undocumented workers when it passed the Immigration Reform and Control Act of 1986. The panel unanimously invalidated Sections 3 and 5(c).
The injunction against two other sections was affirmed 2-1, in an opinion by Judge Paez, with Judge Bea dissenting. Section 2(B) of SB 1070 requires local police to check with the federal government about the immigration status of people who are stopped, detained or arrested. This section is designed to identify and deport more undocumented non-citizens.
Section 6 allows local police to arrest any person who “has committed a public offense that makes the person removable from the United States.” This provision was designed to operationalize an idea that has long been favored by certain immigration restrictionists: that under federal law, local officers have “inherent authority” to arrest for immigration violations, including civil immigration violations. Judge Bea and the Tenth Circuit believe states have inherent authority; the majority of the Ninth Circuit panel believes there is not. This issue has been percolating in the DOJ’s Office of Legal Counsel and the law reviews for almost 20 years.
Whether local police can take on substantial immigration enforcement duties turns on the meaning of two federal statutes, and whether they recognize or reject the inherent authority position. The first statute is 8 U.S.C. § 1373(c), which requires the federal government to provide, at the request of state or local agencies, citizenship or immigration status of any person “for any purpose authorized by law.”
In addition, 8 U.S.C. § 1357(g), §§ (1)-(9) set up a program by which, pursuant to a written agreement, local police are granted immigration enforcement powers, to be exercised with the supervision and direction of federal authorities. (This is often called the “287(g) program”, after its numbering in the Immigration and Nationality Act.). But the law also grants local agencies some authority without a formal 287(g) agreement. 8 U.S.C. § 1357(g)(10) states that no agreement is necessary for local authorities to share immigration information with the federal government, or to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present.”
Judge Bea in dissent insisted that § 1373(c) means that “Congress has commanded” that the federal government provide immigration information to the states at their request. Accordingly, states could seek information for purposes of, say, carrying out federal restrictions on providing benefits for non-citizens, or enforcing a state law restricting employment as a peace officer to U.S. citizens. But in requiring that the federal government provide information about any person’s immigration status “for any purpose authorized by law,” § 1373(c) makes clear that there must be some law other than § 1373(c) itself authorizing use of the immigration information. The majority and dissent disagreed about whether § 1357(g)(10) is such a law.
The difference between the majority and dissent turns on the meaning of the word “cooperate” in § 1357(g)(10) — states may, without a formal agreement “cooperate with the Attorney General” on immigration enforcement, but what does that mean? The majority determined that cooperation meant acting under the direction and supervision of the Attorney General. “Cooperation” in this sense might mean that states can comply with immigration detainers filed by federal authorities with respect to inmates of state prisons and jails, holding them to give federal authorities a chance to take custody. It might mean that states can execute civil immigration warrants filed by the federal government in the National Crime Information Center database. The section might authorize states to otherwise comply with other federal requests either in individual situations or with regard to categories of cases. The key here is that cooperation means helping the federal government carry out its immigration policy.
Judge Bea, by contrast, seemed to conclude that the states have a right to “cooperate” with the Attorney General in the enforcement of immigration law unilaterally, or even over the objection of the federal government. He used language suggesting that the states have at least a co-equal authority in immigration law with the federal government. Judge Bea wrote that “[F]amiliar principles of dual sovereignty, as recognized by the Supreme Court, provide states with inherent authority to enforce federal immigration law” Judge Bea reasoned that “cooperation” with the federal government did not necessarily mean complying with its instructions or priorities: “[B]y what authority can the federal government tell a state government what orders to give its state police officers as to the intensity with which they should investigate breaches of federal immigration law?” Judge Bea’s extremely expansive view of cooperation explains why he accepted Arizona’s view that SB1070 was justified as “cooperation” with the Attorney General, even as the Attorney General sued to stop SB1070.
We believe that the majority has the better of the argument on the meaning of the controlling statutes. Given the overall structure of the Immigration and Nationality Act, and the constitutional law emphatically making immigration an exclusive federal power, it is neither plausible nor persuasive to believe that these federal statutes working together — § 1373(c) and § 1357(g)(10) — meant to alter the traditional primacy of the national government in this area and in the execution of federal law.
If Congress did intend to delegate enforcement discretion to the states, then it would raise a substantial question of constitutionality. In Printz v. United States (1997) the Court in an opinion by Justice Scalia invalidated a federal law to be enforced by state law enforcement officers because “the power of the President would be subject to reduction, if Congress could act as effectively without the President as with him, by simply requiring state officers to execute its laws.”
While the Ninth Circuit decision is an important decision for foes of state immigration regulation, it should be remembered that the injunction did not halt all parts of SB 1070, and indeed that while SB 1070 is a major legal battleground, it is only part of a larger legal conflict. A number of SB 1070’s provisions are in force now, in particular prohibitions on cities or agencies restricting immigration enforcement to “less than the full extent permitted by federal law” backed up by a private right of action, though their effect through the actions of state agents or in the minds of state residents (legal and illegal) is unknown. Earlier state immigration laws based on federal law, which also raise substantial constitutional questions, also remain in effect. Stay tuned…