The Immigration Debate and the Separation of Powers

Equal justice under law. ~ words written above the main entrance to the Supreme Court.

I received quite a few emails in response to last week’s article about sanctuary cities. I thought I’d take today to briefly answer the following question, as it relates to many of the dissenting emails I received:

What prevents state and local law enforcement in the USA from getting involved in the issue of illegal immigration?

It’s a great question that can best be answered by reviewing a recent Supreme Court case, Arizona v. United States, which ruled on an Arizona statute named the “Support our Law Enforcement and Safe Neighborhoods Act.”

Often referred to as S.B. 1070, the law originated from a belief of then Governor Jan Brewer and the Arizona legislature that the Federal Government was not doing enough to fight illegal immigration. The stated purpose of S.B. 1070 was to:  

Discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. (source)

In other words, as noted by Amy Howe over at SCOTUSblog, Arizona wanted to make conditions “sufficiently unpleasant for illegal immigrants that they decide to leave on their own.” However, before the law could go into effect, the Obama administration filed suit stating that S.B. 1070 violates the Constitution because it is preempted by federal immigration laws. As noted in the lawsuit:

The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies through the country. (WP)

So who was right, the State of Arizona or the Federal Government?

Although the centerpiece of the law known as the “show me your papers” provision* was upheld (a major victory for Arizona), the three other provisions** were deemed by the Supreme Court to be unconstitutional (NYT).

Writing for the majority, here is what Justice Anthony M. Kennedy had to say:

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. (source)

In other words, even though Supreme Court Justice Antonin Scalia argued,

Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even places their lives in jeopardy. (source)

the citizens of Arizona were essentially told to suck it up while the federal government sorted things out.

Therefore, returning to the question that inspired this article, state and local law enforcement cannot get involved in immigration issues because:

1. The Constitution grants the Federal Government “broad, undoubted power over immigration and alien status.”
2. And, Article VI, Clause 2 (i.e., the Supremacy Clause) of the Constitution dictates that federal law is the “supreme law of the land.”
   See – Arizona v. United States

Clearly, there are many who disagree with the ruling. Indeed, in his blistering bench statement, Scalia noted:

Arizona had moved to protect its sovereignty not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as as a sovereign State. (source)

Nevertheless, given that supporting and defending the Constitution is a fundamental responsibility of all American citizens and given that the Supreme Court is the final arbiter of said Constitution, I’m willing to suck it up while the Federal Government sorts out how (if?) it wants to enforce the Nation’s immigration laws.

A good place to stop. Before checking out for the week though, how about some music for the Manufacturing Peace of Mind™ Spotify playlist? Although I have a bunch of great new music to share with you, today I’m going to get back to my country roots and leave you with a song sung and written by Kris Kristofferson titled “Nobody Wins.” Couldn’t help but think of the song as the government shutdown continues on…

Any more it doesn’t matter

Who’s right or wrong

We’ve been injuring each other

For much too long

Cheers…xian

*As a result (for now) local law enforcement officials are legally allowed to check the immigration status of anyone they suspect to be an illegal alien.

** Section 3 would have made it a crime to be in Arizona without valid immigration papers; Section 5(c) would have made it a crime to apply for or hold a job without proper immigration papers; and Section 6 would have allowed a police officer to arrest someone without a warrant if the officer believes that someone has committed a crime that could get him deported. (source)

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