EDITORIAL: Published: April 21, 2012 | Source: NYTimes.com
Arizona’s cold-blooded immigration statute was enacted in 2010 to bring about “attrition through enforcement” — to make life so harsh for undocumented immigrants that they would be driven out of the state. It invites unfettered racial profiling and the abuse of police power. And, if allowed to stand, it opens the door to states’ writing their own foreign policy, in defiance of the Constitution.
On Wednesday, the Supreme Court is scheduled to hear arguments on whether the state can enforce key parts of this law, despite the federal government’s exclusive constitutional authority to regulate foreign affairs, including immigration policy. Any sensible reading of the statute, the Constitution and legal precedents going back to the nation’s founding would say no.
The Arizona statute, which has become a model for other states, makes a state crime of being in the United States unlawfully and failing to register with the federal government. Its enforcement provisions essentially turn all Hispanics, including American citizens and legal residents, into criminal suspects. Both a Federal District Court and the Court of Appeals for the Ninth Circuit have blocked four parts of the statute from going into effect because they so clearly usurp federal authority. The justices hearing the case (Justice Elena Kagan is recused) should affirm that finding in the strongest terms.
The legal issue is whether federal immigration law pre-empts, or disallows, the state regulations. Pre-emption doctrine enforces national standards when the federal government has set them. Arizona argues that because federal law does not explicitly prohibit the state provisions, they are valid unless Congress implicitly intended to bar such measures. It contends there is no “clear conflict” between any federal law and the state statute, which “simply uses state resources to enforce federal rules.”
In pre-emption cases, the Constitution’s supremacy clause ensures that when there is a conflict, federal law prevails. But the constitutional threat in this extraordinary case goes beyond routine pre-emption analysis. By the framers’ intent, foreign-policy making is entrusted to the federal government through presidential and Congressional powers. That authority is exclusive, barring any state intrusion. As the Supreme Court said in a 2003 immigration case, “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”
While Arizona says its law merely empowers law enforcement to work cooperatively with federal officers, that is demonstrably false. The four provisions at issue go far beyond federal law, turning federal guidelines into state enforcement rules and violations of federal rules into state crimes. They transform a federal policy that allows discretion in seeking serious criminals among undocumented immigrants into a state mandate to target everyone in Arizona illegally. How the provisions overstep federal law is worth noting:
- Law enforcement officers are required to verify the immigration status of any person they stop, arrest or detain if the officer has a “reasonable suspicion” the person is in the country without documentation. Any official who restricts enforcement of the provision is subject to a fine of up to $5,000 a day. There is no such mechanism in federal law.
- Failure to carry legal immigration papers is a crime in Arizona, though this is not a crime under federal immigration law. The statute also interferes with the discretion of federal officials, who under federal law have the power to put off proceedings against undocumented immigrants or to allow their release from custody.
- It is a state crime for an undocumented immigrant to apply for a job, solicit a job or work in Arizona, though Congress does not criminalize such conduct.
- Police may arrest anyone without a warrant as long as an officer has “probable cause to believe” that person has committed a crime that could make him subject to deportation — even if that person is not wanted for the alleged offense and the federal government may not want to deport or even detain him.
These provisions defy federal law. The justices should forcefully repudiate Arizona’s unconstitutional statute and send a clear message to other states following Arizona’s pernicious lead.