Tomorrow's SCOTUS Argument on Arizona's Immigration Law
Tomorrow at 10 am, the Justices take up the Arizona immigration law known as S.B. 1070. If you listen to the MSM, you'll find out that this is a case about the evil Jan Brewer's plan to harass law-abiding latinos until there isn't even a Taco Bell left in Phoenix. In truth, this is an important case about State's rights.
The Ninth Circuit -- that Olympian tribunal -- held that four key provisions of SB 1070 are pre-empted by federal immigration law. But what is the scope of federal power here? Under the Constitution, Congress has the exclusive power to “establish an uniform Rule of Naturalization” (Article I, Section 8). Only Congress can set the rules for who should be admitted to the United States, and under what conditions they can remain.
An individual state cannot make a law that conflicts with the “uniform rule” set by Congress. But states can make laws that affect aliens, including laws that make life more difficult for illegal aliens. In 1976, for example, the Supreme Court upheld a California law prohibiting companies from knowingly employing illegal aliens. Such a law, said the Court, was a “mainstream” example of the state’s “police power” (DeCanas v. Bica).
The primary federal immigration statute, the Immigration and Nationality Act (INA), specifically provides for the kind of federal-state cooperation that the Arizona law advances. The INA requires, for example, that federal authorities “shall respond” to state and local requests to verify the immigration status of any person. It also empowers state and local officials to arrest previously deported felons who have reentered the country illegally.
So where was the conflict? The Ninth Circuit found that the Arizona law would undermine not the INA, but rather the executive branch’s “policies” and “objectives.” The St. Thomas More Law Center put it more bluntly: the law was “pre-empted by an executive policy of non-enforcement of federal law” (emphasis added). That policy of non-enforcement is so extreme that the Obama Administration originally attempted to block every single section of SB 1070, even the part that prohibits “sanctuary cities” within the state. From the Obama point of view, cities have the right to block federal immigration law, but states cannot enforce it.
Under the 10th Amendment, States retain the internal "police power" to protect the health and safety of their citizens (provided they don't violate the Constitution in doing so). Arizona had ample justification to enact SB 1070. It’s been estimated that half of all illegal aliens entering the United States come through Arizona’s porous border. Illegal aliens comprise 6 percent of Arizona’s population and 7.4 percent of its workforce. Many of the aliens crossing into Arizona are simply desperate for work, but others are hardened criminals. The Mexico/Arizona border zone is so dangerous that large areas of state parkland are now off-limits to law-abiding citizens. Criminal aliens make up a whopping 17 percent of Arizona’s prison population. All in all, the State spends hundreds of millions of taxpayer dollars each year to provide prison cells and social services for people who would not be in the country at all if the federal government had done its job.
If a state does not retain enough “police power” to deal with a crisis of that magnitude, then the Tenth Amendment is a dead letter.