States' Inherent Authority to Enforce Immigration Law

By working together, local and federal officers can better identify and remove criminal aliens -- which is a tremendous benefit to public safety. -- Immigration and Customs Enforcement

Last month, I met Arizona state Senator Russell Pearce, who drafted the state's common-sense immigration enforcement law. He stressed that the nation needs immigration enforcement not just on the border, but in the interior as well. Over half the country's illegal aliens entered through the Arizona border. Senator Pearce said he has listened to stories about families living on the border threatened by drug runners and gangs trespassing on their land. Some of these bold thugs even threatened to return and kill the families of anyone who calls the police. Earlier this year, an illegal alien murdered Arizona cattle rancher Robert Krentz on his property.

Arizona is one of 20 states that currently participates in the Immigration and Nationality Act's 287(g) federal training program. Signed into law by President Bill Clinton in 1995, the provision permits the Department of Homeland Security (DHS) to enter into a written Memorandum of Agreement with state and local agencies to train and to deputize law enforcement officers to identify and detain illegal aliens.

Over 110,000 illegal aliens have been identified and rounded up for deportation under 287(g) since 2006; however, President Barack Obama and his Department of Justice (DOJ) seem to be under the impression that state and local governments can do nothing, apart from 287(g), to protect citizens within their jurisdictions from the burden of illegal immigration.

First, Obama's DOJ has asked the U.S. Supreme Court to overturn a 9th Circuit Court of Appeals decision that upheld an Arizona employer sanctions law. Ironically, Janet Napolitano, former governor of Arizona and current secretary of DHS, signed the bill into law in 2007. Called the toughest sanction against employers who hire illegal aliens, the law requires them to verify the status of employees through the Basic Pilot Program. First offenders who "knowingly" hire illegal aliens will lose their license for up to 10 days. Second offenders (on probation) face permanent license revocation. Defending her decision to sign, Napolitano wrote (PDF):

Immigration is a federal responsibility, but I signed HB 2779 because it is now abundantly clear that Congress finds itself incapable of coping with the comprehensive immigration reforms our country needs. I signed it, too, out of the realization that the flow of illegal immigration into our state is due to the constant demand of some employers for cheap, undocumented labor.

The federal government's responsibility does not preclude a state from enforcing immigration law when it comes to employers in that state. Under the section of the federal code that deals with unlawful employment of aliens, Congress provided this exception (emphasis added):

The provisions of this section preempt any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ unauthorized aliens.

Second, Obama's DOJ is suing Arizona, claiming SB 1070 (PDF) violates the U.S. Constitution's Supremacy Clause. According to the complaint (PDF), the law is a "state-specific immigration policy" that attempts to regulate immigration, which is the "preeminent authority" of the federal government.

But does SB 1070 attempt to regulate immigration? The nine states and one U.S. territory that filed a 16-page amicus curiae brief (PDF) last week in support of Arizona assert that SB 1070 does not give the state authority to decide who should or should not remain in the U.S., or under what conditions he remains. The law does not create a class of aliens different from that under federal law, nor does it authorize local law enforcement officers to deport illegal aliens.

States do have inherent authority to enforce immigration law. For example, the federal government must respond to any inquiry by a state or local government seeking to verify the immigration status of any person within its jurisdiction. Presumed in this requirement is Arizona's authority to question suspected illegal aliens about their status, and that authority is exercised under federal law. State and local police also have the inherent authority to make arrests for federal law violations, including immigration law. Arresting a suspect falls under enforcement.

What is it about stopping illegal immigration from Mexico and other Central American countries that draws such misguided indignation? Why does wanting to impede the flow and to reduce the presence of people who enter and remain without the country's permission generate such resistance? As far as the federal government is concerned, the primary motive is to maintain a cheap labor class at all costs, including the lives of ranchers and their families on the border.

The presence of millions of illegal aliens is a fiscal yoke around the American taxpayer's neck and a social burden on his back, and the federal government's weak enforcement is a smack in the face to those seeking to enter and to remain in this great country the legal way.