by Linda Vega (re-posted with permission of the author and Latinos Ready to Vote)
Immigration touches on every facet of America. It is embedded into economics, education, healthcare, and even in the Constitution of the United States. More significantly, “Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.” See Arizona et al. v. United States, No. 11-182, Sup. Ct. (decided June 25, 2012). For the many benefits that legal immigration brings to this country, it also brings a myriad of confusion spread by politicians from both parties who force states to create their own laws that clash with powers clearly given only to the Federal Government. As a result, this confusion has States trying to implement laws over issues that are fundamentally out of their reach.
The Constitution specifically delineates what powers the Federal Government possesses over federal issues and which ones states possess; and while we may disagree on this distribution of power, States cannot superseded this law. They, therefore cannot write or enforce laws that are not within their authority according to Article I Section 8: Clause 4, which states that the Federal Government governs those laws on Naturalization. More importantly, the Supreme Court agrees.
In its recent ruling, The Supreme Court held that the Arizona lawmakers cannot overstep their boundaries especially if the laws are posed to create chaotic conflict with Federal laws. Moreover, the Supreme Court ruling stated that even if federal laws are not written to exactly address an issue according to Article I, the States may not impose their version of enforcement or control over the issue of immigration because Federal law preempts it.
One hundred years after the Declaration of Independence, the U.S. enjoyed prosperity and worried little about the borders. In fact, one could say that it enjoyed an open border policy which helped it to grow and prosper. Those who were a threat to the nation were deported, without hesitation. Those who helped the U.S. flourish were allowed to remain. Throughout the years, immigration law has been amended, simplified, re-codified, so much that its application is contradictory at many times. Not even a sense of discretion by officials or judges can make sense of it. States, especially in our southern border, have had trouble controlling the inflow of some unwanted aliens such gangs and cartels who may indeed threaten U.S. populations. This fear has culminated and given a hurried passing to more complicated laws. States are reacting by taking matters into their own hands and enacting laws that are strictly reserved for the Federal Government.
In Section 3 of SB 1070, Arizona called for aliens to register into a database to keep track of immigrants present in the state. Failure to do so, would have charged immigrants with a misdemeanor. The Supreme Court ruled that alien registration was not only unnecessary, it was already done so by the Federal Government. SB1070, therefore, was overstepping its boundary.
The Court further stated that States cannot criminalize an alien who is soliciting work in the U.S. Under Federal law, in the Immigration Reform and Control Act (IRCA) of 1986 and a court case of Hoffman Plastics, employers must already verify someone’s work status. The Arizona requirement would not only double the work but would be “unnecessary and unworkable” according to public policy. To apply this law would be a hindrance to the “accomplishment and execution of the full purpose and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, (1941).
Further, the Court stated that contrary to popular belief, it is not a crime for a removable alien to remain present in the U.S. In fact, the Federal government already has a procedure in place to arrest and have them appear in court and Section 6 of SB1070 would only interfere with this federal power. Additionally, state agents do not have the proper training that would help them discern what makes someone a “probable cause” nor would they know what makes someone “removable” from the United States without having to inquire about their legal status. Moreover, without the proper training an error in requesting proof of this, would create an offensive situation to some Americans which could be illegal as well. The Federal Government, already has authority over those “policies pertaining to the entry of aliens and their right to remain here are…..entrusted to Congress.” Truaz v. Reich, 239 U.S. 33, (1915). States can enjoin to help federal agents when there is a “cooperation” agreement with the Federal Agencies or there exists a joint task force. However, other than this, states cannot act unilaterally to apply Immigration laws.
What remained then of the skeletal version of the SB1070 was the 2(B) section that allows state officers to make a “reasonable” assessment to determine someone’s status, which includes anyone who is stopped, detained, or arrested. State police agents then have the power to determine if there is a “reasonable suspicion” to determine if that person is unlawfully present in the U.S. However, logic would follow that if you are not properly trained, how would you know to assess what is a “reasonable” characteristic. And if state police agents are to be trained, are they not once again overstepping the federal police powers already entrusted to agents of the Department of Homeland Security, Customs and Border Patrol, and United States Customs and Inspections Services? The Supreme Court did not state that this part was constitutional, but rather stated that this issue is not yet “ripe.” “It is not clear at this stage,” was the wording they used. In other words, the law has not been enforced to cause an injury where a court can remedy it.
It was a subtle warning by the Court to States including Arizona who now have options. The manner of enforcement, then, will determine if SB1070 is to return again to be addressed before The Court. States must be careful to ensure that state officers not infringe on the rights of U.S. citizens. Therefore, the law must have a compelling state interest to achieve its purpose and must pass the following tests:
1. it must be justified by a compelling governmental interest. While the Courts have never clearly defined how to determine if an interest is compelling, the idea is that it touches on something necessary or crucial, as opposed to something merely preferred. In other words, is it necessary to protect national security, preserving the lives of multiple individuals, while not violating explicit constitutional protections.
2. it must be narrowly tailored to achieve that goal or interest of the law. If the state action is overbroad or does not pinpoint the compelling interest, then the rule is not considered narrowly tailored.
3. it must be the least restrictive means for achieving that interest; meaning that there are not other means that are less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive.
States who are considering implementing the 2(B) version of SB1070 must carefully consider whether they can write and enforce laws that are not targeting a certain class of individuals who are protected in this country. The court did not state that this portion was Constitutional as it was written, only that it could not determine whether its application violated any citizen’s rights since it was not currently enforced. If Arizona, then, decides to implement this portion of the law, it should be careful. If the law cannot meet the strict scrutiny test it should consider the Court’s ruling as a warning. If you pick on a certain class of people, the portion of the law cannot be upheld as Constitutional regardless of how loud you scream. States must carefully walk through the tests already in place via the Constitution. The law must protect before it can gain momentum of acceptance. More importantly, if the law cannot seek to remedy injustices, States should reconsider implementing something that could divide our country rather unite it.