How Does SB1070 Interfere With Federal Immigration Law Enforcement?

By Michael Bryan

In my last post I promised to attempt to explain the issues raised in the SB1070 suit. The heart of the argument in the Fed's brief seeking an injunction of enforcement of SB1070 is that Arizona's legislation is preempted by federal immigration law.

What is preemption? Preemption is a doctrine designed to maintain the constitutional provision popularly referred to as the Supremacy Clause, which declares that federal laws and treaties are the supreme law of the land, and that any conflicting state laws must give way.

Preemption doctrine can operates in several ways, but the one which mainly applies to SB1070, is called "field preemption". Courts will consider state laws concerning certain topics in which the federal government's interest is dominant off limits to state lawmakers, except in very limited circumstances. Examples of such preempted topics include foreign policy, immigration and naturalization; in fact, immigration and naturalization are some of the clearest examples of field preemption because the U.S. Constitution actually specifically grants them to the Federal Congress in Article I, Section 8, clause 4 ("establish a uniform rule of naturalization") and clause 3 ("regulate commerce with foreign nations"). 

Pursuant to those powers, the Congress enacted the comprehensive legislative scheme known as the Immigration and Nationality Act (INA, sometimes referred to as the Immigration and Naturalization Act) which empowers federal agencies to administer and enforce these federal laws. 

Supreme Court cases have long clearly recognized the primacy and exclusivity of the federal power over immigration, stating in multiple cases that immigration is unquestionably exclusively a federal power. 

The Feds contend that SB1070 impermissibly intrudes on the field preempted topic of immigration generally by attempting to create a state-level immigration policy. You might ask, "Well, doesn't SB1070 just require state law enforcement officers to enforce federal law?" That's the crucial question and the drafters and promoters of SB1070 have certainly attempted to give that impression, perhaps because they knew they would eventually have preemption problems.

The answer from the Feds analysis of SB1070 is a resounding "NO". They allege that the drafters seek to override the carefully considered Congressional formulation of immigration policy goals and priorities and replace it with an Arizona-only policy of "attrition through enforcement" which places the goal of incarceration and removal above any other goal.

"Attrition through enforcement" is not some cute characterizaton the Feds' coined to knock SB1070, it is the stated goal of the bill in its own preamble:

"The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States."

Whoops.

Arizona's new immigration policy under SB1070 is to create the maximum reduction of the number of unlawfully present aliens to the exclusion of all other priorities. The Feds point out that this is very likely to disrupt federal enforcement priorities and to divert federal resources away from other competing goals set by the Federal government. In the brief, SB1070 is called "an unparalleled and explicit effort to establish a state policy that intensifies enforcement of particular federal immigration laws, while ignoring key goals of others, thereby contravening federal foreign policy prerogatives."

In the brief, the Feds even cite the minutes of Arizona legislative committee meetings during the formulation of the bill and public statements of key legislative players to demonstrate the intent of the bill is to reorder immigration priorities, not assist in enforcement. (pages 15 and 32 if you would like see for yourself). They hoist the bill's crafters and sponsors by their own petards (or is that retards in this case?). 

In my next post on the SB1070 suit I will go into more detail about exactly how the Feds allege that federal priorities and resources will be subverted by the specific provisions of SB1070. This aspect of the Fed's argument begins to touch upon another species of preemption, "conflict preemption," which is just specific ways in which the state law will conflict with the objectives of federal law. 

One of the key conflicts cited is that while SB1070 focuses on abetting the maximal removal of aliens who are merely present unlawfully, there are multiple competing interests at play in the federal government's administration of immigration enforcement which such a ham-fisted approach will disrupt. 

An important Fed argument is that DHS and ICE give priority to the removal of aliens deemed a threat to public safety and national security, and swamping the enforcement system with sad sacks looking for a job to remit some cash back home will seriously hamper that effort. While this argument is only a small component of the overall conflict preemption argument, I think this argument will have considerable political appeal and will likely feature prominently in the political defense of the suit.

Summing up: The Constitution and long-established Supreme Court precedents recognize that immigration is exclusively a federal concern. Arizona's attempt to create a "attrition through enforcement" immigration regime in Arizona cannot be permitted if the federal government is to maintain its historic exclusive control of immigration. Arizona's law does not seek to cooperate with federal enforcement, but rather to supplant the carefully calibrated administration of INA with the preferences of Arizona's legislature. For this reason alone, Arizona's SB1070 must be enjoined from enforcement. 

There are more arguments in the Fed's brief, but this is the cornerstone, and likely is strong enough alone to kill SB1070 stone dead. The wonderful irony and poetic justice is that the framers and sponsors of the bill gave the Feds all the ammunition they needed with their over-heated rhetoric and hubristic pronouncements in committees and in the press. In making their case that the federal government wasn't doing their job, so they would step and do it for them, they have likely sealed the fate of their bill and doomed it to being struck down as an impermissible preemption of federal law.