By Gabriel J. Chin and Marc L. Miller. Chin is a Professor of Law at the University of California, Davis, School of Law, and Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. They authored The Unconstitutionality of State Regulation of Immigration through Criminal Law, which recently appeared in the Duke Law Journal and addresses these arguments, and others, in more detail. The views expressed are solely those of the authors.
Arizona v. United States, being argued Wednesday, will decide whether SB1070 is preempted by federal law. We have previously co-authored papers about its complex provisions, and various legal doctrines that might be brought to bear on it, from the non-delegation doctrine to double jeopardy. But Arizona v. United States is, ultimately, a simple case. Here is what we hope the Supreme Court understands.
SB1070 is preempted -- it is unconstitutional -- because it usurps powers that the Constitution, the Immigration and Nationality Act, and other federal statutes assign exclusively to the federal government. The Framers, Congress and the Court have consistently recognized that the security of the nation and fairness to non-citizens require that decisions and enforcement be under federal direction and control.
- Section 2 requires that state and local police investigate the status of suspected undocumented non-citizens who have been detained;
- Section 6 authorizes police to arrest non-citizens believed to be deportable; and
- Section 3 criminalizes the presence of non-citizens in Arizona if they have not registered under federal law.
The fourth provision (§ 5) criminalizes working in Arizona without authorization, which is not a crime under federal law.
The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as [they] relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.
Section 1103's breadth and clarity is striking. It makes federal authorities responsible for the Immigration and Nationality Act (INA) “and all other laws relating to the immigration and naturalization of aliens." That is, Congress decided that there would be no laws relating to the immigration and naturalization of aliens not administered and enforced by the executive branch.
In addition, the Attorney General's views "with respect to all questions of law shall be controlling." That is, Congress intended that there would be no circumstances that immigration laws could be applied or construed contrary to the views of the Attorney General.
The powers and duties granted to the Executive Branch "under the chapter" include precisely the powers Arizona arrogated to its own officers in SB1070: investigating suspected undocumented non-citizens (8 U.S.C. § 1357(a)(1)), arresting them if they are believed to be civilly deportable (8 U.S.C. § 1357(a)(2)), and regulating the presence of undocumented non-citizens in the United States without registering (8 U.S.C. § 1306(a)). Indeed, the overall purpose of SB1070--inducement of self-deportation and "attrition through enforcement" (§ 1)--is similar to the procedure of "voluntary departure" under the INA, which is a power Congress granted to the Attorney General. (8 U.S.C. § 1229C)
There is no reason for a state to take these actions other than in the hope or expectation of putting the targets into the INA's removal process, or punishing them for violating requirements of the INA. That is, Arizona has no independent state purpose, other than in achieving what might be accomplished through administration and enforcement of the INA.
The expressio unius principle suggests that powers granted in 8 U.S.C. §1103(a)(1) are exclusive. Further, the INA makes sense only as an exclusive regime; it cannot be that Congress intended unspecified others to be allowed to issue visas, grant asylum, or carry out deportations.
In any event, there is a clear textual refutation to Arizona’s claim that Congress intended to share direct enforcement authority under the INA. Congress described the powers of state law enforcement officers in precisely this context as restricted to working with federal authorities: They have the power to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." (8 U.S.C. § 1357(g)(10)(B)). States may "cooperate," not overrule, with regard to "identification" covered by SB1070 § 2, "apprehension," covered by § 6, and registration provisions like § 3 designed to facilitate identification and apprehension.
These limitations differentiate SB1070 from the employer sanctions law upheld last term and similar cases such as De Canas v. Bica. Unlike SB1070, the laws upheld in those cases did not directly regulate immigrants themselves, did not purport to exercise powers given to federal officials or enforce or administer the INA, and, as the Court last term emphatically noted, operated in an area where Congress explicitly left room for independent state action.
The powers granted to investigate and arrest non-citizens would be perfectly consistent with § 1357(g)(10)(B) if they were exercised by request and under the direction of the Attorney General. But because the Attorney General has instead asked Arizona not to exercise them, Arizona is not "cooperating" and instead is attempting to exercise authority not delegated to them. For these reasons, §§ 2, 3 and 6 are preempted.
Admittedly it would have been easy for Congress to insert an express preemption provision. Why did Congress not just say states cannot issue visas, grant asylum, deport non-citizens, create their own immigration crimes, or investigate and arrest for civil immigration violations contrary to the direction of the Attorney General?
The answer is that the principle of federal exclusivity has been so well established for so long that it would be akin to wondering why the Constitution is silent on, say, the effect of the EPA Administrator's signature on a bill passed by Congress. For example, in 1954 -- a year in which the Court was clearly open to reconsidering old verities -- the Court ruled: "Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. . . . that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government."
Congress, not the Arizona legislature, has the exclusive power to create immigration policy. This is why § 5 is invalid; just as Arizona cannot overrule the enforcement decisions of the Attorney General, it cannot overrule the policy decisions of Congress.
This principle dates back to 1876, when the Court's unanimous decision in Chy Lung v. Freeman squelched California's effort to prohibit Chinese immigration. The Court concluded that the state laws interfered with an exclusive power of the federal government; “the responsibility for the character of those regulations, and for the manner of their execution, belongs solely to the national government. If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.”
Importantly, this principle goes beyond preemption; in 1876, the era of open borders, there was no existing federal law with which the California could conflict. While the Court recognized the state's broad police powers, it held in a companion case that "no definition of [the police power], and no urgency for its use, can authorize a State to exercise it in regard to a subject-matter which has been confided exclusively to the discretion of Congress by the Constitution."
Chy Lung made clear that "the manner of the  execution" of immigration laws was as much part of federal power as drafting them. Conservative members of the modern Court have explained why: Administration as well as creation of immigration policy is tied to foreign policy and national security.
Thus, in Reno v. American-ArabAnti-Discrimination Committee, the Court, in an opinion by Justice Scalia, rejected a claim of selective prosecution in the immigration context, because of the surpassing importance of executive authority. The Court recognized particular difficulties with “invad[ing] a special province of the Executive -- its prosecutorial discretion.” "What will be involved in deportation cases is not merely the disclosure of normal domestic law enforcement priorities and techniques, but often the disclosure of foreign-policy objectives and … foreign-intelligence products and techniques." This conclusion is consistent with the Constitution's general decision to keep states out of foreign policy (U.S. Const. Art. 1, § 10).
Congress had made clear in other laws that Congress, rather than the states, is where distinctions between aliens and citizens are to be made. 42 U.S.C. § 1981(a), as Justice White famously explained in Runyon v. McCrary, was intended to protect Chinese immigrants, the very group targeted in Chy Lung:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
Congress decided to keep the states out of the business of discriminating against non-citizens. This is consistent with, for example, the Framers’ decision to grant non-citizens access to the federal courts in Article III; human nature being what it is, the risk of local prejudice was too high.
If the Supreme Court applies the plain language of the INA and follows its precedents, SB1070 will be resoundingly invalidated. It should not be a close case.