Tag: SB 1070

Supreme Court: Immigration Reform Needs to Come from Congress

Everyone will find something to quibble with in today’s highly technical ruling in Arizona v. United States, which is not an indication of some baby-splitting grand compromise but rather that this is a really complex area of law.  The Court, in an opinion by Justice Kennedy and joined by four other justices including Chief Justice Roberts, upheld (at least against facial challenge) Section 2(B) of Arizona’s SB 1070, which requires law enforcement officers to inquire into the immigration status of those they’ve lawfully detained if they have reasonable suspicion that the person is in the country illegally.  The Court found, however, that federal law trumped (“preempted”) three other provisions: Section 3, which makes it a state crime to violate federal alien registration laws (because Congress so comprehensively “occupied the field” of alien registration); Section 5(C), which makes it a state crime for an illegal immigrant to “knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” (because it conflicts with the method of enforcement chosen by Congress – regulating employers rather than employees); and Section 6, which allows law enforcement officers to arrest someone they have probable cause to believe has committed a deportable offense (because questions of removability are entrusted to federal discretion).  Justices Scalia and Thomas wrote partial dissents to say they would’ve upheld the entire law.  Justice Alito also wrote separately to say he would’ve only found Section 3 preempted.

My own view most closely aligns with Judge Alito’s—I would uphold three of the four provisions, though for me 5(C) is the problematic one—but more important than the legal weeds are the two policy guides the Supreme Court has given:

  1. The federal government has significant, near-exclusive powers to regulate immigration and even state laws that merely “mirror” federal immigration laws are on shaky legal ground;*
  2. Although federal lawmaking trumps state lawmaking, federal policymaking does not.  Prosecutorial discretion, resource allocation decisions, and other policy processes do not preempt duly enacted state law.

In short, immigration policy by either state action or executive whim won’t cut it. The federal government—Congress and the president, working out that grand compromise—needs to fix our broken immigration system.

* Note that most of SB 1070 has been in effect since July 2010.  The federal government only challenged six of its provisions, and two (regarding transporting/harboring illegal aliens) were upheld by the district court, without further appeal by the government.  In other words, state laws dealing purely with state prerogatives (such as crime or business regulation) are on much firmer legal ground.

One Cheer for Obama’s New Immigration Policy

The new legalization non-deportation policy President Obama announced on Friday, which I’ll call “Executive DREAM,” is really interesting.  A half-measure not worthy of unadorned praise or condemnation, Executive DREAM creates mixed feelings in those of us who want liberalized immigration laws – because immigrants are generally a good thing for a country – but want to see actual, you know, law-making get us there.  Not executive initiatives, not prosecutorial discretion, not administrative-agency diktats, but honest-to-goodness passed-by-Congress-and-signed-by-the-President laws.

I thus join my colleague Alex Nowrasteh in calling this a ”temporary, tepid” immigration fix.   Alex notes that Executive DREAM, if its operation turns out to be similar to the proposed DREAM Act, “will shrink the informal economy, increase economic efficiency, and remove the fear and uncertainty of deportation from potentially millions of otherwise law-abiding people.  It would be a good first step toward reforming immigration and a glimpse at what the Dream Act would do.”

Now, while the result of this little Executive DREAM is good, the manner in which it was promulgated ensures that it will be a short-lived stopgap that prevents real reform and undermines the rule of law.  There’s no reason not to normalize the status of those who would have been eligible for legalization under the DREAM Act, but doing it by executive discretion after Congress had rejected the equivalent legislation shows contempt for a co-equal branch of government.  That President Obama announced it in the midst of an election campaign, after not having spent any political capital on immigration during the first three-and-a-half years of his term, only adds to the corrosive cynicism surrounding the issue.

Our immigration system needs comprehensive reform that will only be achieved with buy-in from both parties.  Executive DREAM feels good and is the least we can do for over a million law-abiding, productive young people, but makes the long-term goal that much harder to achieve.  Indeed, Sen. Marco Rubio (R-FL) has already indicated that the president’s actions have essentially sucked the oxygen from his nascent attempts at reform.

Doug Mataconis has a similar take.  He concludes that “this action was made somewhat inevitable by Congress’s failure to act on immigration reform for at least the past six years. When there’s a power vacuum, someone will move in to occupy that space. Unfortunately, that’s what the President has done and, in the process, he’s done real damage to the Separation Of Powers.”

Immigration Laws at the Supreme Court: Constitutional but Bad Policy

For anyone suffering from post-Obamacare-argument Supreme Court withdrawal, this Wednesday the Court takes up Arizona’s controversial Senate Bill (“SB”) 1070.  See my blogpost from when the Court granted review for some background.

SB 1070 is much-misunderstood: it has nothing to do with sexy political issues like racial profiling and everything to do with boring legal ones like whether a given state provision is “preempted” by federal law.  That is, do the various parts of the state law – each one of which the Court will be evaluating independently – conflict with federal law (direct preemption) or intrude in an area exclusively reserved to Congress (implied preemption).

United States v. Arizona shows that there’s a difference between what’s constitutional and what’s good policy. SB 1070 was crafted to mirror federal law rather than asserting new state powers that interfere with federal authority over immigration.  That’s why lower courts only enjoined four of its provisions and why the Supreme Court would not be wrong to resurrect even those four.

But beyond this hyper-technical legal analysis, SB 1070 and copy-cat laws elsewhere – some of which go further than Arizona’s and thus are of more dubious constitutionality – highlight the dysfunction in our immigration system.  Given Congress’s failure to act in this area, state governments have spawned a host of federalism experiments.  Many of these laws are terrible policy for reasons ranging from economic effects to the misuse of law enforcement resources.

Legal scholars always enjoy the opportunity to point out laws that they think are constitutional but bad policy.  It makes them feel intellectually honesty (if they have reason to be defensive in that regard).  Well, immigration is the most obvious place where my constitutional and policy views diverge.  The ultimate solution here isn’t for the Supreme Court to strike down the states’ lawful if misguided legislation, but for Congress and the president to enact a comprehensive national reform.

For more on what’s at stake in the case, see my SCOTUSblog essay from last summer, my forthcoming law review article, and my new colleague Alex Nowrasteh’s recent op-ed.  For the briefs and other background materials, see SCOTUSblog’s case page.

Supreme Court Takes Up Arizona Immigration Law

The Supreme Court has agreed to review Arizona v. United States, the case regarding SB 1070, the Arizona law (only) four sections of which have been enjoined by the lower courts: requiring police to check the immigration status of anyone they have lawfully detained whom they have reasonable suspicion to believe may be in the country illegally; making it a state crime to violate federal alien registration laws; making it a state crime for illegal aliens to apply for work, solicit work in a public place, or work as an independent contractor; and permitting warrantless arrests where the police have probable cause to believe that a suspect has committed a crime that makes him subject to deportation.  For my previous analysis of SB 1070 and the legal challenges to it, see here, here, here, and here.

By taking up this case, the Supreme Court is wisely nipping in the bud the proliferation of state laws aimed at addressing our broken immigration system.  One way or another, states will know how far they can go in addressing issues relating to illegal immigrants, whether the concern is crime, employment opportunities (providing or restricting them), registration requirements, or even so-called sanctuary cities.

Of course, states wouldn’t be getting into this mess if the federal government – elected officials of both parties – hadn’t abdicated its responsibility to fix a system that serves nobody’s interests: not big business or small business, not the rich or the poor, not the most or least educated, not the economy or national security, and certainly not the average taxpayer.  For their part, SB 1070 and related laws in Alabama, Georgia, and elsewhere are (with small exception) constitutional – the state laws are merely mirroring federal law, not conflicting with it or otherwise intruding on federal authority over immigration – but bad public policy.  (For more on both these conclusions, read my SCOTUSblog essay from last summer.)

What this country needs is a comprehensive reform that obviates the sort of ineffectual half-measures the states are left with given Congress’s shameless refusal to act.  It’s not very often that Cato calls for the federal government to do something, but the immigration system is quite possibly the most screwed-up part of the federal government – which of itself is a significant statement coming from someone at Cato – and one that is so incredibly counterproductive to American liberty and prosperity.

The Court will hear Arizona v. United States in the spring.  For more immigration-reform developments, see this note in today’s Wall Street Journal and my blogpost on Utah’s plan, which the federal government has also since sued to enjoin.

SB 1070: Constitutional But Bad Policy

That’s the title of an essay I wrote for SCOTUSblog as part of their symposium on United States v. Arizona.  This is the big immigration case that will hit the Supreme Court’s doorstep later this month when Paul Clement, recently hired by Arizona, files his cert petition.

Here’s an excerpt:

…state governments, feeling tremendous pressure from their citizens to address the consequences of the federal failure to meet this nation’s immigration needs, are acting for themselves.  Arizona happens to be the “tip of the spear,” but we’ve also seen various other immigration-related laws passed in states as different as Utah, Georgia, and California.  Whether related to enforcement, expanded work permits, sanctuary cities, or other types of policy innovations, Congress’s abdication of its duty to manage our immigration system has spawned a host of federalism experiments.

And so we come to S.B. 1070 (as amended by H.B. 2162), which exemplifies the crucial distinction between law and policy that both liberals and conservatives tend to forget.  A law that is good policy might be unconstitutional or preempted by some higher law.  Here we see the converse: while S.B. 1070 is (with the exception of one provision) constitutional, it’s bad policy.

Read the whole thing.

Immigration Law Ruling Half-Right But Crucially Wrong

The ruling demonstrates the problems the federal government creates when it fails to either enforce or reform our immigration laws.  Judge Bolton’s hyper-technical decision – anybody who tells you this case was black-and-white isn’t a serious lawyer – got it half-right: She correctly upheld most of SB 1070 and correctly struck down two sections of SB 1070 (a small part of section 5 and all of section 6), but incorrectly struck down two other sections (2 and 3).

One of the latter, section 2 – requiring police to determine the immigration status of persons they stop, detain, or arrest if they have a reasonable suspicion that said persons are unlawfully in the United States – is the most controversial part of SB 1070 and also the most controversial part of the ruling.  Judge Bolton construed section 2 as conflicting with federal law because it burdens federal resources and impedes federal agency functions, but how can it do that when the resources and agency functions in question are already (supposed to be) devoted to immigration enforcement?  The government’s decision not to enforce its own laws can’t possibly preempt a state law that merely mirrors those laws – laws the federal the government is charged with enforcing.

SB 1070 is a valiant attempt to deal with the breakdown in the rule of law caused by so many people living in the legal shadows.  While it’s not the best public policy – because it diverts law enforcement resources, divides police from their communities, burdens lawful residents, and ultimately harms the economy – it’s a frustrated citizenry’s perfectly understandable response to government failure.  Probably the best thing to come out of this whole episode – which isn’t over by any stretch – is that it thrusts the debate over comprehensive immigration reform into the forefront of national political debates.  This is a tough and nuanced issue that will end up in the Supreme Court again and again if Congress neglects to act.

Update on the Arizona Immigration Issue

Since I provided my legal analysis of the new Arizona immigration law, I’ve become aware of a few interesting developments in that regard.

First, it seems that I wasn’t working off the latest version of the bill – which I should add is awfully hard to find.  Indeed, perhaps we should excuse Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano for not having read it; both the Arizona Senate’s website for SB 1070, and the Arizona House’s website for the amending legislation, HB 2162, list several different versions under their “Bill Versions” tabs that do not match the bills in the other.  As someone who typically plays in the federal sandbox, if someone can direct me to a verified true copy of the final operative bill, as signed and amended, my colleagues and I – indeed the entire policy community – would be grateful.

In any case, I’m please to announce that the (seemingly) final amended version I’m now working from has improved an already constitutional bill by further safeguarding civil liberties.  Most notably, the ”may I see your papers?” provision was changed to read that law enforcement officials shall make a “reasonable attempt … when practicable, to determine the immigration status” only after having made a “lawful stop, detention, or arrest … in the enforcement of any other law or ordinance … where suspicion exists that the [detained] person is an alien and is unlawfully present in the United States” (amended text in bold). This establishes a higher predicate standard for police to initiate contact with any person to whom this law will be applied. In other words, there has to be an independent reason for the stop or detention before the police can ask to see proof of immigration status.

The amended bill also prohibits any consideration of “race, color or national origin” in enforcing the new law in any manner that runs afoul of either the U.S. or Arizona constitutions.  Moreover, the legislature clarified that the determination of an alien’s immigration status would only be performed by Immigration and Customs Enforcement (ICE), the Border Patrol, or a “law enforcement officer who is authorized [to do so] by the federal government.”

All of these changes unquestionably improved the civil rights provisions of the law and should further protect it from successful legal challenge – again without saying anything about the law’s policy wisdom.

Second, while some analysts have argued that Arizona’s law might be preempted by federal law – although the leading case, De Canas v. Bica, 424 U.S. 351, which is 34 years old and predates more recent immigration reforms, is not favorable to that position – Roger Pilon alerted me to a 2005 case (unanimous in the judgment, less so in the reasoning), Muehler v. Mena, 544 U.S. 93, that shows that Arizona’s law doesn’t go as far as the Constitution might allow.  In Mena, the police detained the inhabitants of a house whice they were searching pursuant to a lawful search warrant.  While most of the officers performed the search, others questioned one detainee about her immigration status without any reasonable suspicious that she committed any crime – and certainly without having any reasonable suspicion that she was an illegal alien.  The Supreme Court, in an opinion by Chief Justice Rehnquist, upheld this line of questioning.  Part of the reasoning was that the “may I see your papers?” bit did not prolong the detention in any way – the search was still ongoing – but this is at least some indication that the Constitution allows immigration-related questioning without even the reasonable suspicion required by Arizona.

Third, apparently the head of ICE, John Morton, said his agency will not process illegal immigrants referred to them by Arizona officials.  Morton apparently doesn’t think that laws like Arizona’s “are the solution.”  Well, we at Cato certainly agree that Arizona’s law will not solve a problem that demands a comprehensive federal solution, but that doesn’t mean federal officials can simply decline to perform their duties under the law as it exists.  What Morton proposes is akin to state “nullification” of duly enacted federal law – except worse, because his agency’s job is to enforce that very law.  If Morton feels that strongly about our immigration laws, he should either resign or, while complying with his duties, testify before Congress about the law’s defects and lobby his boss, President Obama, to push reform.

Fourth and finally, President Obama is deploying 1,200 National Guard troops to the border and requesting $500 million more for border security.  With due respect to Arizona Senators John McCain and Jon Kyl, who want even more troops and money, this approach is neither here nor there.  (And it echoes Obama’s split-the-baby decision on Afghanistan, not willing to go for a whole-hog escalation but also not willing to rethink the overall policy.)  Half-measures won’t do it here, Mr. President (and Congress).  If you lack the heart (or have too much of a brain) for a full wall-and-militarization of our southern border – and perhaps mass rounding up and deportation of 12 million people – it’s time for a fundamental reorganization of the immigration system.

U.S. immigration (non-)policy is nonsensical and unworkable.  We’re beyond the point of perestroika; it’s time for regime change.