A New Look at the Federal Suit Against Arizona's Immigration Law

A new Arizona law requires police engaged in a lawful stop or arrest to ask about a person's legal status if there is reasonable suspicion that the person is an illegal alien. This law forbids racial profiling, but understandably, many Americans of Hispanic descent are worried that the law will target them unfairly. Meanwhile, other states are proposing similar laws. And the Department of Justice is suing Arizona, claiming its law is unconstitutional, while the State Department has reported to the United Nations that this law interferes with human rights.

Is the federal government right that it is unconstitutional for Arizona to enact a law that supports federal law, which already forbids illegal aliens from entering our country? The answer is not as simple as it seems. Normally, there is no problem when state law helps (rather than hinders) federal law. Immigration is a little different because of a special clause in the Constitution giving the federal government power to establish a “uniform Rule of Naturalization.” Some people argue that this clause means that the federal government has the “exclusive power” to regulate in this area. That is not exactly true.

In DeCana v. Bica (1976) the Supreme Court upheld a California law that prohibited an employer from knowingly employing an alien not entitled to lawful residence in the United States if that employment would adversely impact lawfully resident workers.  The Court said, in essence, that the state law is valid unless Congress “intended to oust state authority.” How do we know what Congress intends? Well, Congress could speak clearly and simply enact a law that overrides the Arizona law. But Congress has not done that, so federal courts must interpret the sounds of Congressional silence.

One major case interpreting that silence is Muehler v. Mena (2005), which ruled that it was constitutional for state police officers to question Mena about her immigration status while they were executing a search warrant. The Court said that the police need no “independent reasonable suspicion in order to question Mena concerning her immigration status.”