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.”
More recently, Rhode Island state police started checking the immigration status of people stopped for traffic violations. They reported all illegal aliens to federal authorities for deportation. The federal appellate court rejected arguments that the state action was unconstitutional, in Estrada v. Rhode Island (Feb. 2010). The court relied on Mena.
It gets more complicated. In 2004, the International Court of Justice ruled that the United States violated the Vienna Convention when state police did not inform Medellin and 50 other Mexican nationals about their Vienna Convention rights to have their consulates notified of their arrest. The police cannot give that information unless they ask the people arrested if they are aliens. Arizona could interpret the federal court ruling as requiring it to violate the Vienna Convention by not asking arrestees if they are aliens who have rights under the Vienna Convention.
The final complexity: some cities are saying that they will refuse to do business with Arizona unless it changes its law. In 1976, a Mississippi statute forbade buying milk from states that had milk health laws that (Mississippi said) were unfair. The unanimous Supreme Court held that this state law violated the Commerce Clause. If Mississippi thought that the other state’s law was unfair, it should sue, not create a trade barrier. A city law that limits commerce with Arizona because of its alien laws may be different, but that is yet another issue that the Court will have to decide.
The question on how to deal with illegal immigration is an emotional one for many people. Some call for mass deportations, but that should not happen: mass deportations are a typical symbol of dictatorship, not of democracy. We are also a litigious democracy, so we will have lawsuits. There is a simpler way: Congress can turn its attention to enacting legislation to deal with these issues directly instead of relying on lower courts (and eventually the Supreme Court) to interpret the sounds of Congressional silence.