Musings of Captain Justice a/k/a Gil Jones

All you ever wanted to know about federal implied preemption but were afraid to ask

A protest against SB 1070 ...

Protest against SB 1070 in Minnesota

[no_toc]Widespread interest exists in the Arizona law known as “S.B. 1070” which may be about to get to the US Supreme Court.  The constitutional question is one of federal implied preemption. Of course, this interest is acute in Texas and the Southwest but I would think that states formerly thinking they were immune from the problems of illegal immigration now realize that it’s everywhere. Otherwise why are there protests in Minneapolis against the law?

What is federal implied preemption

Here is a very simple explanation of federal implied preemption. The Supremacy Clause of the US Constitution provides that where federal law and state law clash, federal law wins. They can “clash” if federal law preempts state law which can be done explicitly or impliedly. If a federal statute states that it preempts state law, then you know. In many situations there is no federal law at all similar to state law and thus there is no question. But if there is a federal law dealing with the same general subject matter but the federal statute does state that it preempts the states, then the question of whether there is an implication that it does. The referenced article goes into more detail.

Will the Supreme Court hear it and what is the issue?

This article has an excellent explanation of federal implied preemption and sets out very clearly the issues involved in the potential case. Apparently we may hear as soon as Monday Dec 12 whether the Court will hear the case.  (Update: the Court has agreed to hear it)

What I don’t understand, is how there could be any doubt — if indeed there is — about the Supreme Court agreeing to hear it.

Four provisions in S.B. 1070 are in dispute. First, the law instructs Arizona law enforcement officials to try to determine an individual’s immigration status any time someone is arrested, as well as during a police stop or arrest if they have reason to believe that the individual may be an unlawful alien. Second, the law makes it a violation of Arizona law for someone to fail to register as an alien under federal  law. A third section makes it illegal for unlawful aliens to work or to try to obtain work. The fourth provision gives Arizona police the power to make warrantless arrests of anyone whom they have probable cause to believe has engaged in activity that would make them deportable under federal law. (emphasis added)

The U.S. Justice Department sued to block the Arizona law. A federal judge issued a preliminary injunction against the four provisions, finding that federal law likely preempted Arizona’s efforts. In April 2011, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld the preliminary injunction, agreeing with the federal government that the district judge had not abused her discretion in issuing the injunction.  One member of the panel , however, would have held that two of the four provisions were not preempted.  Arizona then filed a petition for certiorari in which it cited an urgent need to be able to enforce state law. The Justice Department has opposed Supreme Court review.

via SCOTUS for law students: Preemption and the Arizona immigration law : SCOTUSblog. Stephen Wermiel, SCOTUS for law students: Preemption and the Arizona immigration law, SCOTUSblog (Dec. 9, 2011, 1:37 PM),

My analysis of the Arizona law

I too have written about the Arizona law. Note that the disputed provisions relate to determination of status upon arrest or with reason to believe a law (regarding immigration) has been violated, making a federal crime also a state crime, creating a new crime for aliens to work here, and warrantless arrests if an (immigration) law is believed to have been broken thus making that person deportable.  Thus it seems that the main complaint is about identifying people. In my earlier piece I said:

So the person has been stopped, detained or arrested according to existing law and procedures, and will simply be asked to identify.  That is accomplished

. . . if the person provides to the law enforcement officer or agency any of the following:

1.  A valid Arizona driver license.
2.  A valid Arizona nonoperating identification license.
3.  A valid tribal enrollment card or other form of tribal identification.
4.  If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification. . . .

How hard is that? It’s what any of us would have to produce if stopped, detained or arrested. And note the relevant provision of existing federal law regarding ID:

“Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.” 8 USC section 1304(e)

Thus it is no imposition on the registered alien to produce what he is already required to have on his person.

About the second squawk, making a federal crime also a state crime, how can that be preempted by federal law? While federal law does regulate a tremendous portion of the workspace, can it be said that making the failure to register also a state crime will interfere with the federal scheme? Drug laws already exist at both levels and there is frequent cooperation between state and federal authorities regarding which of them will prosecute offenses. Lastly on this point we should not forget that the “feds” are failing to enforce their laws in this regard.

Third,we come to the Arizona illegality of working or attempting to obtain work. How can that violate the preemption principle? Does the federal government have an interest or need — or a power granted it under the Constitution — to create a protected right-to-work status for aliens illegally in the country? I think not.

Fourthly, the argument over the fourth point is just silly given the fact that federal authorities are not enforcing most of those laws.

My prediction

My constitutionally-semi-informed-best-guess is that the “no work” provision may fall but that the other three will not. It seems to me that the balance between legitimate state interests and individual liberties is reasonable and that items 1, 2 and 4 have not been federally preempted — IF we believe that states still have any rights.

A suggested path to a solution

Finally, I want to be clear about a couple of things. First, I believe that we need to find a way to accurately and completely identify all persons not legally in this country and for those who are law-abiding and productive, to get them into legal presence here, and a legal path toward citizenship if that is their desire. But they have to start at the back of the line.

But second, we must first control our borders. Both of these steps are essential to protecting the sovereignty of this nation and doing so does nothing to close the welcoming arms America has always had. Is there any other country, of any size anywhere, that simply disregards its borders?

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