SB 1070 and Reverse-Commandeering Immigration Laws

April 25, 2012
Guest Post

By Margaret Hu, a visiting assistant professor at Duke Law School. She is the author of a forthcoming article in the U.C. Davis Law Review titled "Reverse-Commandeering." 


As the Supreme Court heard oral argument in Arizona v. U.S., one of the main legal questions it considered is this: Whether Arizona’s Senate Bill 1070 (SB 1070) is preempted by federal immigration law under the Supremacy Clause. This is a statutory-driven inquiry that misses the constitutional mark. The more relevant question is this: Whether SB 1070 poses a threat to the vertical separation of powers. 

Increasingly, immigration federalism laws like SB 1070 —  state and local attempts to control unwanted migration — exemplify the inverse of the problem posed by the impermissible commandeering of states under the Tenth Amendment.  Specifically, the recent tidal wave of thousands of immigration control efforts proposed by state and local governments can best be characterized as “reverse-commandeering” laws. Setting migration policy at the national level, like establishing a national currency, falls within the sole power of the federal government. Reverse-commandeering by the states is an effort to usurp the federal government’s sole prerogative. This growing movement represents an attempt to control the terms of what federal resources and officers must be appropriated to accommodate a myriad of state immigration enforcement programs. It is a deliberate attempt to skew the immigration enforcement power in favor of the states. 

In the years since Congress’s failure to pass comprehensive immigration reform legislation in 2006-07, state and local governments have considered over 7,000 immigration-related proposals. In the first quarter of 2011, 1,538 immigration bills and resolutions were considered in all 50 states and in Puerto Rico. By December 2011, 42 states and Puerto Rico had enacted 197 new laws and 109 new resolutions. A tiny handful of the most controversial state laws, such as the Legal Arizona Workers Act (LAWA) — the subject of the Court's recent decision in Chamber of Commerce v. Whiting — and SB 1070 — the subject of the Court's current consideration in Arizona v. U.S. — have received challenges in federal court. Consequently, such challenges address only the tip of an immigration federalism iceberg. 

But many of these state and local immigration laws are carefully crafted to survive federal preemption challenges through the application of what has been termed as “mirror image theory” by legal scholars Gabriel “Jack” Chin and Marc Miller. They observed that SB 1070 “recapitulates” or “mirrors” federal immigration law and policy in state immigration text “with slightly different wording.” The theory is attributed to former constitutional law scholar Kris Kobach, Kansas’ Secretary of State and the “architect” of SB 1070, who argued that “[s]tate governments possess the authority to criminalize particular conduct concerning illegal immigration, provided that they do so in a way that mirrors the terms of federal law.” Consistent with mirror image theory, the Whiting Court found that because LAWA “largely parrots” the federal immigration law word-for-word, the two laws do not conflict with one another: the state and federal government can work in complete cooperation and harmony. Whiting,therefore, is cited by Arizona in its briefing in Arizona v. U.S. to justify why the Supreme Court should not find that SB 1070 is preempted by federal immigration law.

Yet, even if these state immigration laws parrot word-for-word federal immigration law and policy, they nevertheless mark a state incursion on federal sovereignty that is suspect under the Supreme Court’s federalism jurisprudence. Those principles are clearly pronounced in the Court’s cases dealing with federal attempts to commandeer state legislatures and officers, such as in New York v. U.S. and Printz v. U.S. Those principles, however, are not limited in application to the defense of state sovereignty from federal overreach. SB 1070 offers an opportunity to see when anti-commandeering principles are flipped in the opposite direction, they apply equally to protect federal sovereignty from state overreach.  

The hostile takeover of federal immigration law and policy posed by this recent tidal wave of state and local immigration laws is unconstitutional in that it exemplifies the inverse of the problem posed by the impermissible commandeering of state resources and state officers by the federal government in violation of the Tenth Amendment. Under SB 1070 and SB 1070-copycat laws, the states round up those suspected of “unlawful presence” but leave it to the federal officials to investigate, prosecute, and deport those detained by state law enforcement officers.The state takeover of federal immigration database screening protocols in particular poses significant resource costs, and programmatic and prosecutorial conflict, frustrating the implementation of a coherent immigration policy at the federal level. Finally, the federal government has an interest in bringing uniformity to the disparate immigration enforcement schemes and immigration screening protocols enacted at the state and local level.

When the Court upholds laws like LAWA, Congress, in effect, is sometimes coerced to propose federal legislation that follows the legislative priorities of the state. Shortly after the Whiting Court upheld LAWA, for example, Congress proposed federal immigration legislation that would follow LAWA’s lead in mandating that employers conduct immigration database screening for all new hires through E-Verify.  E-Verify is a highly experimental identity management technology that purports to provide employers with a method to verify identity and citizenship status over the internet by running personally identifiable information of employees through government databases. Independent studies on E-Verify, however, have concluded that the system is largely inefficacious. The databases that inform the screening protocol are rife with error, and the program leads to widespread discrimination against naturalized U.S. citizens and lawful immigrant workers.  Women are more susceptible to erroneous results due to name changes stemming from marriage and divorce. It is disputed, therefore, whether a mandatory E-Verify program that would require public and private employers in all 50 states to conduct internet database screening of every new hire is sound national policy. But, the federal government cannot maintain a uniform immigration regulatory system where Arizona and some states require employers to use the E-Verify system and other states do not.

Given the impact of immigration policy on foreign and interstate commerce, international treaties, and foreign relations, the Court has concluded that controlling migration patterns is strictly the prerogative of the federal government. Consequently, the growing proliferation of thousands of proposed state and local immigration laws should be examined doctrinally within a commandeering jurisprudential frame. To fail to do so — to continue to accept mirror image theory carte blanche as a favored method of statutory interpretation under the existing preemption doctrine — threatens federal sovereignty. Put another way, it eviscerates the federal government’s ability to develop and implement a coherent, efficacious, and uniform immigration policy at the national level. 

Thus, the newfound impotency of traditional preemption doctrine under mirror image theory requires a different analytical framework for federal courts attempting to assess the legality and constitutionality of state and local attempts to control unwanted migration. Applying anti-commandeering principles to SB 1070 and SB 1070-copycat laws can assist federal courts in creating a lens whereby textual mirroring can be understood as textual usurping where the cooperative harmony of the two statutes creates the space for state and local investigations, regulations, and prosecutions independent of federal efforts to enforce the same statutory provisions in derogation of federal immigration law and policy.