Private: Immigration Federalism Post-Arizona

by Pratheepan Gulasekaram, Associate Professor of Law, Santa Clara University, and author of the ACS Issue Brief Restrictive State and Local Immigration Laws: Solutions in Search of Problems.

Since the Supreme Court decided United States v. Arizona last summer (and Whiting v. Chamber of Commerce in 2011), circuit courts have been busy applying the opinion to immigration regulations percolating through the federal courts in their respective jurisdictions.  The Third Circuit in Lozano v. Hazleton invalidated the Hazleton, Pennsylvania employment and rental ordinances; the Fourth Circuit in United States v. South Carolina invalidated sections of South Carolina’s immigration enforcement scheme; the Fifth Circuit in Villas at Parkside Partners v. Farmers Branch invalidated the Farmers Branch, Texas rental ordinance; and the Eleventh Circuit invalidated sections of Alabama’s and Georgia’s immigration enforcement schemes.  These decisions reduce some of the legal uncertainty surrounding the recent proliferation of subfederal immigration legislation.  Notably, however, they also leave some important questions unanswered.  And, they do so in a way that is doctrinally precarious.

First, based on the Arizona Court’s decision not to enjoin §2(B) of SB 1070, a few provisions of state enforcement schemes in South Carolina, Alabama, and Georgia were left intact.  Following Arizona’s lead, the Northern District of Georgia (on remand from the Eleventh Circuit), rejected a facial challenge to § 8 of the state’s 2011 Illegal Immigration Reform and Enforcement Act, which allows local law enforcement officers to investigate the immigration status of individuals if the officials have probable cause that the individual committed a crime and if that individual cannot produce adequate proof of lawful status.  Fourth Amendment or other constitutional challenges to that provision must now proceed on an as-applied basis, similar to the ongoing litigation challenge to SB 1070’s § 2(B).  Litigation on these provisions will take some time to resolve the important racial profiling and discrimination concerns implicated by local law enforcement participation in immigration matters.

Second, although most of the recent outcomes favored challengers, the Eighth Circuit in Keller v. Fremont created a circuit spit by upholding a local rental ordinance that was virtually the same as the ones enjoined by both the Third and Fifth Circuits.[1]

Finally, these recent cases reify the trend of employing statutory (rather than structural) preemption analysis to answer immigration federalism questions. Following the lead of Arizona and Whiting, circuit courts applied the Supreme Court’s implied-preemption taxonomy to assess whether subfederal laws ran afoul of the constitution’s Supremacy Clause.[2]  Employing this analytic framework, these circuits concluded, for the most part, that the state and local regulations at issue conflicted with federal law, stood as an obstacle to the accomplishment of federal goals, or attempted to regulate a field occupied by the federal government.  For example, the Fifth Circuit en banc majority specifically limited its rationale to conflict preemption, carefully crafting the opinion to show how the local rental ordinance “disrupts” the operation of relevant federal law.  Meanwhile, the Third Circuit found Hazleton’s employment provisions preempted because they were an “obstacle to the accomplishment and execution” of federal law objectives.

But this mode of analysis – one placing great weight on the existence and specific content of the federal statutory background – is neither inevitable nor necessary in immigration federalism.  Indeed, in one of its first assessments of state immigration regulations, the Supreme Court in Chy Lung v. Freeman struck down an 1874 California law that essentially gave state officials discretionary power over the admission of noncitizens arriving at the state’s ports of entry. The Court stated that “[t]he passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not the states….[T]he responsibility for the character of those regulations and the manner of their execution belongs solely to the federal government.”[3]  This rationale is akin to a structural or sovereignty-based form of preemption, with the Court rejecting state intervention into core immigration functions.  And, at that time, we did not have (as we do now) the robust federal regulatory framework in the Immigration and Nationality Act and an elaborate federal enforcement apparatus in the Department of Homeland Security.

Chy Lung’s logic appears applicable to most provisions of contemporary subfederal schemes. Unlike state and local laws intended to curb noncitizens’ access to certain public benefits or specific types of employment (which receive some deference under the Supreme Court’s alienage jurisprudence), the subfederal laws under consideration purport to accomplish quintessential immigration functions. Indeed, the avowed goals of these measures, unequivocally expressed in Arizona’s SB 1070 and Alabama’s HB 56, were to cause “attrition through enforcement” and “discourage illegal immigration.”  Further, federal courts have interpreted the rental, employment, contracting, or other enforcement aspects of these laws as regulations of entry and exit.  For example, the Eleventh Circuit characterized Alabama as “craft[ing] a calculated policy of expulsion” through a provision of its law, noting that the section was a “thinly veiled attempt to regulate immigration.”[4] The Third Circuit,[5] the Fourth Circuit,[6] and two concurring opinions in the Fifth Circuit’s en banc consideration similarly classified the laws in their respective cases.[7]

Inexplicably, despite articulating that contemporary subfederal laws were intended as substitutes for federal immigration enforcement and removal policy, most of these courts failed to comprehend the full import of that observation.  Only the Eleventh Circuit, with regards to one provision of Alabama law which invalidated contracts entered into by undocumented immigrants, recognized the possibility of structural preemption, reasoning that “[b]ecause [the power to expel aliens from the state] is retained only by the federal government, [this section] is preempted by the inherent power of the federal government…”[8] Even so, the court buttressed this conclusion with statutory preemption analysis, detailing how the provision conflicted with the INA. The other circuits reached their respective results only by parsing the specific contours and limitations of the INA, and comparing that exegesis to the language of the subfederal ordinances at issue.

The courts’ reification of statutory preemption analysis not only overlooks the potential of structural preemption, but also obscures the more concerning civil-liberty frailties of these laws.  As Judge Higginson noted, specially concurring in the Fifth Circuit’s Farmers Branch case, “I would point out that several other constitutional claims, under due process, equal protection, and the Privileges and Immunities and Commerce Clauses, were raised by the plaintiffs below but not reached by the district court.”[9]  These alternate doctrinal bases would provide courts the opportunity to acknowledge the genesis and execution of these subfederal laws, which tend to discriminate against racial minorities and persons from particular foreign countries, giving rise to troubling criminal process and equal protection concerns.  Further, similar to dormant commerce clause jurisprudence, courts missed an opportunity to explore whether these subfederal enforcement regulations simply export both people and policy concerns to other jurisdictions, reaping few, if any, of the theoretical benefits of federalist policy variation.

In the end, the post-Arizona decisions undoubtedly help clarify the boundaries of state and local action with regards to immigration enforcement.  However, Arizona and its progeny have left open some important questions, and may have entrenched a doctrinal framework ill-fitted to the underlying motivations, purposes, and effects of recent state and local forays into immigration regulation.

Immigration, Racial Justice, Separation of Powers and Federalism, Supreme Court