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The DOJ’s Unsupported Suit Against the Arizona Immigration Law

The already bloated doctrine of federal preemption must not be further engorged.

by
Dan Miller

Bio

July 9, 2010 - 12:00 am

On July 6, 2010, the Holder Justice Department, allegedly without consultation with President Obama, filed suit in federal district court in Arizona to block the new Arizona law intended to enforce existing federal laws against unlawful immigration, something the federal government itself has patently failed to do. The suit asks the court for, among other things, an order restraining Arizona from implementing the new statute later this month as scheduled, pending the outcome of the litigation. It is evident that this was done for partisan political purposes, although it seems quite likely that the political results will not be those which the Obama administration desires.

The suit claims that the new Arizona law was preempted under the Constitution by federal law and is therefore unconstitutional. According to the Justice Department complaint:

In our constitutional system, the federal government has preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests. Congress has assigned to the United States Department of Homeland Security, Department of Justice, and Department of State, along with other federal agencies, the task of enforcing and administering these immigration-related laws. In administering these laws, the federal agencies balance the complex — and often competing — objectives that animate federal immigration law and policy. Although states may exercise their police power in a manner that has an incidental or indirect effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.

The complaint goes on at length to explain these claims. However, as analyzed here, there are no federal statutes on which a claim of preemption could legitimately be made:

While controlling immigration is a job of the federal government, Congress has never enacted a statute that expressly bars states from assisting it in the manner contemplated by the Arizona statute. Without any express preemption to rely on, the challengers must resort to making a more difficult “implied preemption” argument. This is a claim that the Arizona law conflicts with federal law, and therefore interferes with the fulfillment of congressional objectives. However, the numerous judicial precedents supporting the Arizona law will make this an uphill climb.

The only significant support for the suit must come from the notion that General Holder is the attorney general and therefore obviously knows best.

The complaint notes:

The Constitution affords the federal government the power to “establish an uniform Rule of Naturalization,” U.S. Const., art. I § 8, cl. 4, and to “regulate Commerce with foreign Nations,” U.S. Const., art. I § 8, cl. 3. Further, the federal government has broad authority to establish the terms and conditions for entry and continued presence in the United States, and to regulate the status of aliens within the boundaries of the United States.

In other words, the area of immigration has been preempted by the federal government and the individual states had better keep their noses out of it, or else. Otherwise, some foreign governments may be offended:

Mexican President Calderon’s Address to Joint Meeting of Congress, May 20, 2010, available at http://www.c-spanvideo.org/program/293616-2. S.B. 1070 has subjected the United States to direct criticism by other countries and international organizations and has resulted in a breakdown in certain planned bilateral and multilateral arrangements on issues such as border security and disaster management. S.B. 1070 has in these ways undermined several aspects of U.S. foreign policy related to immigration issues and other national concerns that are unrelated to immigration.

Tough. Perhaps the Mexican government should do a better job on its own side of the border to diminish the incentives for its citizens to leave.

Furthermore, according to the complaint:

Mandatory state alien inspection schemes and attendant federal verification requirements will impermissibly impair and burden the federal resources and activities of DHS. S.B. 1070’s mandate for verification of alien status will necessarily result in a dramatic increase in the number of verification requests being issued to DHS, and will thereby place a tremendous burden on DHS resources, necessitating a reallocation of DHS resources away from its policy priorities. As such, the federal government will be required to divert resources from its own, carefully considered enforcement priorities — dangerous aliens who pose a threat to national security and public safety — to address the work that Arizona will now create for it. Such interference with federal priorities, driven by state imposed burdens on federal resources, constitutes a violation of the Supremacy Clause.

One must wonder what the people killed in Arizona by illegal aliens engaged in drug and gang related activities might think about this if they were still capable of thinking about anything.

The complaint modestly fails to note that Article I, § 8 (the “Commerce Clause”) is also now viewed as granting the federal government nearly all power to regulate interstate commerce. During the reign of Good President Roosevelt II, this concept was extended and distended by the Supreme Court in many cases supportive of New Deal legislation. This was done with a little bit of persuasion from the president, who graciously offered to provide the Supreme Court with additional justices should the existing nine not be able to see their way clear to discover the true meaning of the Constitution unaided. Since then, it has been the guiding rule that all commerce within the individual United States is interstate in nature, even when no resources from outside the state in question are used and no sales of the product are made outside that state.

It follows ineluctably that all commerce is interstate, even the growing of wheat for domestic use, and not for sale in inter — or what was once considered intra — state commerce. Consistently, it would appear that all state efforts to regulate commerce must fall if the federal government so desires. There are too many examples of such state action to list in a single article, but here are a few:

State public utility regulation clearly affects interstate commerce because, for example, electricity generated in one state is often generated using coal and other resources mined or produced in other states and some of the electricity so generated is then “wheeled” across state lines and used in other states in homes and industry. The actions of state utility commissions, even regulating the prices at which electricity can be sold to homes within the state where generated, obviously impact on and can interfere with federal efforts to promote and encourage national security by ensuring a reliable, fail-safe, and environmentally sound supply of electricity.

Then there are state traffic laws; the federal government has mandated the use of seat belts and other safety devices in automobiles, and the transportation of people, goods, and services obviously affects commerce. Yet state and local police authorities enforce seat belt and other traffic laws; some states do so differently from other states.

The quality of education similarly affects commerce, since without a well educated labor force commerce and the economy upon which is it based would fall into disaster. The all-wise federal government has mandated standards for education, yet the individual states interfere by having at least some of their own standards. The adoption of text books in even one state, Texas for example, can make it uneconomic for interstate publishers of text books to create and sell text books other than those mandated by Texas.

Health care in one state can impact the provision of health care in interstate commerce. For example, if State A prohibits or restricts abortions to a greater extent than does State B, those who are unable lawfully to obtain abortions in State A are likely to travel to State B to have them.

The United States does not need uniformity in all things to the maximum extent possible and such was the intent of neither the Constitution nor of its authors.

The immigration statute recently adopted by Arizona is a modest, proper, and well thought out effort to protect its residents from the invasion by unlawful criminal visitors from outside the United States. The situation in Arizona is extremely flammable, and the refusal of the federal government to do the job with which it has been entrusted has caused matters to become increasingly dangerous and intolerable. Rather than attempt to thwart the efforts of Arizona, the powers of the federal government would be far better used by vigorously enforcing its own laws or at least standing back and not interfering with the efforts of Arizona to protect the rights and lives of its people.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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