How Does SB1070 Conflict with Federal Immigration Law?

By Michael Bryan

In the last post I discussed the general concept of preemption in the DOJ suit to enjoin the enforcement of SB1070 and how SB1070 falls afoul of field preemption. In this post I will discuss the various specific ways the Feds' brief claims that SB1070 conflicts with federal law and is therefore preempted.

Conflict preemption means that a state law directly conflicts with federal law by making compliance with both impossible, or by frustrating the purpose of the federal law.

The Feds suit alleges several specific provisions of SB1070 conflict with federal law:

1. criminalizes the mere presence of undocumented aliens in the state against the express policy of Congress.
2. impermissibly supplements federal criminal sanctions for registration violations
3. usurps the exclusive federal role in making removal determinations
4. the alien smuggling provisions directly conflict with federal provisions
5. the work sanctions provisions violate express policy choices by Congress.
6. the mandatory verification procedures will detract from federal priorities for those resources

Lets take each in turn.

1) Criminalizes mere presence

This is perhaps the most glaring conflict with federal immigration policy, but also the least obvious. You might recall that in recent sessions the state legislature took up bills that would make it a trespassing crime for an undocumented foreign citizen to be present in Arizona? But it never got passed or was vetoed. There's a good reason for that: it would certainly have failed a preemption challenge. Congress has considered whether to criminalize mere presence in the U.S. of undocumented foreign nationals and expressly decided not to make that a crime. Since the Congress has made that policy choice, Arizona doesn't get to overturn it.

So the drafters of SB1070 thought they might get what they wanted (criminal sanctions for mere presence) if they drafted the legislation in such a way that, in effect, it punished the mere presence of undocumented aliens without saying that's what they are up to. Thus was born the fiction that SB1070's §3 merely "mirrors" federal immigration registration requirements and creates a state crime based on any violation.

The states are simply not allowed to make a unilateral policy to criminalize the mere presence of undocumented immigrants in the state. The federal government has chosen to not make that a crime, and SB1070 directly conflicts with that policy.

2) Supplements federal registration sanctions

The federal government already has criminal and civil penalties for registration violations, i.e. failing to register or to carry proper documentation. SB170 purports to create new state criminal punishments for those same violations. Of course, the real purpose is to criminalize mere presence, but it also creates a conflict with federal law.

The Feds assert that registration violations are field preempted by the detailed and extensive federal legislation on the topic and are not amenable to state supplementation. New state crimes would intrude upon the control of prosecutions of these violations by federal prosecutors, which can have significant foreign policy and humanitarian considerations. In addition, because SB1070 applies only in Arizona, it disrupts the uniformity of sanctions depending on where an apprehension occurs.

3) Usurps removal decisions

Only federal personnel can determine if an alien is removable. But in their zeal to slap cuffs on as many aliens as possible, the drafters of SB1070 included in §6 the ability to make warrantless arrests of aliens who have out-of-state convictions that would make the alien removable. This creates a problem in that even immigration lawyers,federal specialists, and judges have difficulty with such removal analyses. Expecting untrained officers to make such determinations will result in the arrest of a whole lot of aliens that are not actually removable, and intrudes upon the exclusivity of federal removal decisions.

4) Alien smuggling provisions

SB1070 isn't just about 'show me your papers' it also creates some new state-level crimes concerning alien smuggling. The problem is that those crimes are not consistent with federal smuggling crimes.

In the federal law, a transportation provider can be charged with transporting an alien in furtherance of an illegal entry. SB1070 makes knowingly providing any commercial transport to an undocumented alien a crime, even if it is not in furtherance of the entry. Thus commercial carriers are on the hook for criminal liability if they carry anyone whom they have reason to believe is undocumented anywhere in Arizona. Not only is that in conflict with federal law, it stupidly and needlessly creates a huge incentive for commercial carriers to discriminate against all aliens and immigrants from fear of criminal charges.

In addition, under the federal law, Congress made a considered decision not to make undocumented aliens themselves criminally liable for participating in their own smuggling. SB1070 does just that, likely creating another point of preemptive conflict.

Finally, the transport provisions of SB1070 are not limited to Arizona's international border, thus affecting interstate commerce at Arizona's borders with other states, possibly implicating the Commerce Clause, which I will discuss in a later post.

5) Work sanctions

SB1070 also creates new criminal sanctions for undocumented aliens seeking or engaging in work. Again, Congress carefully considered whether criminal sanctions should apply to aliens working without authorization in this country and decided for humanitarian reasons not to do so. The anti-humanitarians in the Arizona legislature disagree and decided to pursue their own policy by imposing criminal sanctions on working and seeking work. This glaring contravention of federal policy is another possible point of preemption.

6) Mandatory verification

SB1070 requires verification of immigration status in some circumstances when reasonable suspicion exists to question that status, but also before the release of any person arrested, even those who are obviously American citizens. This will result in a tidal wave of requests. DHS has a system called LESC to allow government agencies to make such verification requests, but the priority for its use is identifying dangerous aliens who are a threat to national security or pubic safety, for background checks for gun permits for foreign nationals, for clearances to access secure areas, and for employment in sensitive facilities or industries. The sheer volume of requests from Arizona, and possibly also from the some 18 other states contemplating similar legislation, will force the federal government to divert resources away from its' chosen priorities or to shift substantial resources away from other activities to meet the demand.

In other words, while LESC is dealing with verification of the immigration status of every idiot who gets popped for shoplifting, they won't be able to respond in a timely fashion to prevent a truly dangerous criminal aliens being released, being allowed to carry a gun, or being granted access or employment that poses a security risk to American interests. That's not only stupid, it is a serious preemption issue.

In my next post I will wrap up the Feds arguments with how Arizona's brain(-damaged)-child violates the Passive Commerce Clause and impacts foreign policy.