July 6, 2010

Arizona: Enemy of Federalism

(Cross-Posted at League of Ordinary Gentlemen.)

So the Federal Department of Justice has sued the State of Arizona over Arizona's immigration law. Once again, I am forced to think critically about something of which I superficially would seem to approve.

Like a lot of immigration liberalization advocates, I must confront the fact that there are people out there who think that the immigration laws are too liberal already. Many of these same people also say, in contradiction to the first contention, that the laws on the books are not being enforced appropriately. Both can't be materially true (if the laws are adequate but not enforced, then they are adequate and not too lax; if the laws are too lax then it hardly matters how well they are enforced) but the sentiment expressed winds up getting to the same place – they contend that too much illegal immigration is going on and it is not a situation we can tolerate for long.

Of course, I've been saying the same thing about the national debt for years and no one's done anything about it. But that's a different story.

The question that the case of United States v. Brewer raises is not one of policy, however, but rather one of Constitutional effect. The Constitution gives to the Federal government the right power to create a uniform rule of immigration and naturalization, which means that this is a subject matter area removed by the words of the Constitution from the states. But the Arizona law does not, itself, attempt to alter the Federal rules about immigration. Arizona has simply said that it wants those rules to be vigorously enforced.

The degree of vigor to which laws are enforced is a policy choice vested in the President. There are too many laws and not enough resources for all rules to be vigorously enforced, so inevitably every President must set priorities. That's part of what you bargain for when you vote for President and it's part of the reason that the Presidency is so powerful in the modern system of government. And since the Reagan Administration and likely since before that, patrolling the Mexican border to prevent illegal immigration* has not been a hugely high priority on the part of any President, regardless of the President's party. Let's not forget, for instance, that it was Reagan's idea† to have an amnesty for illegal aliens already here in the States, and although I rather doubt Reagan would have wanted that to have turned into an incentive for illegal immigration, he did propose a compassionate, integrative approach to the problem.

So Arizonans, whether rightly or wrongly, believe that illegal immigration causes law enforcement problems. What does their law really say? In effect, it comes down to this: if there is a police stop or arrest made on some other cause, and the officer has a "reasonable suspicion" of undocumented status on the part of one of the detainees, the officer can refer that person over to the Federal authorities for them to investigate whether the person has a legal right to be in the U.S. or not.

As I've opined before, the place where I think the law runs in to serious problems is in finding something concrete about a person that the officer can articulate gave rise to a "reasonable suspicion" of undocumented status. It can't be, for instance, that the person has difficulty speaking English. A significant number of citizens have Spanish as their primary language. It can't be that the person is apparently afraid of or nervous about authority figures or seems to find the idea of deportation uncomfortable. If a cop threatened me with deportation, I'd be uncomfortable, too. It might be based around the time, place, and activity of the detainee at the time of contact with the police; but again, the sorts of things one might expect an undocumented alien to be doing are things a native citizen might be doing too – looking for day labor jobs while hanging out in front of Home Depot, for instance. Yes, you'd expect to find a lot of undocumented workers. But citizens might be doing that sort of thing too. And lots of citizens drive without their licenses or other identification on them.

But that is not the theory behind the Federal challenge to the law. That case asks, does this change the unitary Federal scheme for regulating and controlling immigration? To be sure, it enforces that scheme with a degree of vigor that is not found in other states (yet). But substantively it doesn't change the scheme. If the Feds wanted to, they could simply let everyone referred to them by Arizona state law enforcement go without any further inquiry. The only result of that would be that some Arizona cops would abuse their powers and hassle people they wanted to hassle by making an immigration referral for them – but the fact of the matter is, cops already have huge latitude for hassling people they want to hassle anyway. And a state cop who wants to intimidate someone with a threat of deportation will do so anyway because most people susceptible to such a threat are not sophisticated enough to appreciate the subtleties of American Constitutional law in the first place. So while an expansion of state police power in theory, in practice I don't see much going on there.

The issue is ultimately one about prioritizing. And that's what is unique about Arizona's challenge to lawmaking authority. It is not a challenge to Congress' ability to make a law setting a uniform rule for immigration and naturalization. Rather, it is a challenge to the President's setting of priorities and determining that policing against illegal immigration is not as high a priority as, for instance, identifying particular security risks among the population of undocumented aliens or focusing national security dollars on high-tech fighter jets or using drones to kill (admittedly, very morally bad) American citizens engaged in non-combat activities without arrest or trial. It is a challenge to executive lawmaking power, not legislative lawmaking power.

There are those who deny that the President has any lawmaking powers at all. If the term "lawmaking" is defined very narrowly in terms of "legislation" that is probably correct, except to the extent that Congress has delegated that power to the President and agencies reporting to him, thus resulting in the amazingly complex and intricate Code of Federal Regulations. But if "lawmaking" is defined as "creating the enforceable rules that govern our society" then it is quite clearly a power shared by, and intended to be shared by, all three branches of government. Prioritizing among various legislative objectives is one of the things left to the President's discretion and it is, itself, a form of lawmaking. Therefore, Arizona's law challenges the President's ability to decide to focus resources in one area and not in another; it attempts to force the President's hand at allocating resources among various kinds of Federal law enforcement activities.

Prioritizing is a power inherent in the Presidency; it is in a very real sense the most meaningful part of the President's job. Thus, I have to come down on the side of disapproving of the Arizona immigration law as unconstitutional (as opposed to merely ill-advised). The President gets to decide how to allocate Federal law enforcement priorities, not the State of Arizona. Part of our Constitutional scheme is the concept of separation of powers; part of federalism as a form of that separation of powers is the notion that the Federal government is supreme in the subject matter areas delimited as within Federal authority by the Constitution. Were the Arizona law to be valid, then an individual state could set Federal law enforcement priorities contrary to the wishes of the President and the Governor of that state would be more powerful in controlling Federal agents. This cannot be; it is contrary to the Supremacy Clause and contrary to our scheme of Federal-state power distribution.

* This subject has become so politicized that even the terms "illegal immigration" and "undocumented worker" have become politicized to the left and right. For my part, I try to split the difference. A person is described as "undocumented" and they are not "laborers" or "workers" unless they have employment of some kind. But the act of entering the country without documentation is a violation of our laws and therefore "illegal." Hence, "illegal immigration" is an act done by an "undocumented person," and while that person is not inherently "illegal," he has broken a law and that's a fact that needs to be addressed despite whatever compassion might be appropriate for this person.

† A commenter has suggested that this idea originated with Congressional Democrats, not the Reagan White House. I haven't checked to see if he's right. But even if that is true, Reagan still signed off on the idea of amnesty when he could have vetoed it.

10 comments:

Mike said...
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Mike said...

Trying again. I'll take things in turn. This shall be split into two parts, owing to the comment system's 4096 character limit.

Like a lot of immigration liberalization advocates, I must confront the fact that there are people out there who think that the immigration laws are too liberal already. Many of these same people also say, in contradiction to the first contention, that the laws on the books are not being enforced appropriately.

Making one correction to above - that there are people who think that immigration policy is too liberal already - removes the false accusation of cognitive dissonance that you make above.

You should be cautious about making such accusations based on your own poor (whether deliberately constructed or not) word choice.

But the Arizona law does not, itself, attempt to alter the Federal rules about immigration. Arizona has simply said that it wants those rules to be vigorously enforced.

At least you are being honest enough to admit this.

Let's not forget, for instance, that it was Reagan's idea to have an amnesty for illegal aliens already here in the States

BZZZZT! You fail history. Reagan demanded a border fence: it was Democrats from the House and Senate, who controlled Congress at the time, who demanded an amnesty as a trade-off for approving border enforcement measures in the 1986 law, measures which they then turned around later and refused to fund in subsequent years.

As I've opined before, the place where I think the law runs in to serious problems is in finding something concrete about a person that the officer can articulate gave rise to a "reasonable suspicion" of undocumented status.

Here we go again - the usual left-wing canards.

A police officer is ALREADY allowed to require documentation of someone at a legal stop, especially a traffic stop. In fact, the legislation is specifically designed to ensure that at the stops in question, there is already a presumption that the person must be carrying identification "papers" (state-issued ID, drivers' license, registered travel visa, etc). Furthermore, FEDERAL law (8 USC 1304(e) and 8 USC 1306) already requires legal immigrants to carry their identity papers at all times. So the Arizona police, in asking for identification, are not asking for anything that either citizens or noncitizens are not already legally required to carry.

If a police officer stops a car with 12 people piled into it, and none of them have ID, what does that tell him?

Therefore, Arizona's law challenges the President's ability to decide to focus resources in one area and not in another; it attempts to force the President's hand at allocating resources among various kinds of Federal law enforcement activities.

And I must disagree. Arizona's law clearly constitutes Arizona's focusing of their STATE resources onto a matter of serious importance to the State of Arizona. Where appropriate, they are referring persons to the Federal government, but this is not significantly different than their doing so in any other legal circumstance, such as a case where an illegal alien were to be arrested or taken into police custody for questioning in regard to a murder.

The only "challenge" to the President's authority would come if-and-when the President were, personally or through subordinates, to order federal agencies to refuse lawful referrals from Arizona law enforcement regarding the immigration status of arrested persons, at which time the President, his administration, federal agencies, and individual federal employees affected would be held up by the media to intense scrutiny.

Mike said...

Were the Arizona law to be valid, then an individual state could set Federal law enforcement priorities contrary to the wishes of the President and the Governor of that state would be more powerful in controlling Federal agents

Actually no. What makes the Arizona law valid is the fact that it makes no requirement of Federal intervention necessary at all, save for that (official referral of arrested persons to the appropriate federal authorities) which is already legal. The Arizona law is no different from a police department arresting someone for murder, and then referring them to a federal prosecutor for prosecution under the Federal murder statutes instead of the Arizona murder statutes.

That, if for no other reasoning, is what makes the Arizona law legal. The 100% false argument put forth by opponents of the law is the idea that a Federal and State law cannot coexist regarding the same topic. Quite to the contrary, however - in dozens of areas, many criminal, many civil, State and Federal laws coexist quite freely, with State law sometimes being the less severe and Federal law sometimes being the less severe. In order to actually preempt State law, the law itself MUST have a specific clause stating that the law intends to take precedence, such as 7707(b)(1) of the CAN-SPAM Act, which states it "supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent any such statute, regulation, or rules prohibits falsity or deception in any portion of a commercial mail message or information attached thereto." And you will note that even there, the area to which it supersedes existing State laws is rigidly defined.

As the Federal statute regarding immigration has no such clause, there is NOTHING preventing the Federal law from coexisting with Arizona's law.

Mike said...
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Transplanted Lawyer said...

Thanks for the fisking. My rebuttal:

If Reagan hadn't been agreeable to the 1986 amnesty, he could and should have vetoed it. Maybe the idea originated with Democrats in Congress rather than Reagan as you say; that doesn't much change the take-away -- Reagan offered immigration amnesty.

As to the identity card issue, lots of citizens lack ID when it's legally required and properly demanded by a cop. I see dozens of driving-without-a-license cases every time I do traffic court. So not having ID on one's person is common enough occurrence among citizens that, by itself, it ought not create a reasonable suspicion of undocumented alien status. As one of several factors, lack of ID should be considered. But a cop to offer testimony that amounted to "I suspected defendant X of being an undocumented alien because he could not produce ID," I wouldn't find her suspicion to have been "reasonable" until she articulated additional reasons supporting her suspicion. The punishment for not having ID at a traffic stop ought to be a fine, not having to fight deportation procedures.

I fail to see how a referral of a large number of detainees to Federal law enforcement by state law enforcement, based on that state law enforcement agency's suspicion that these detainees have violated a single Federal law, could be seen as anything but an effort by the state to make the Federal government direct more resources into enforcement of that particular Federal law. We'll just have to disagree on that, and that is the primary thrust of my post.

As to your last point, when the Constitution defines something as exclusively Federal, there is no need for Congress to adopt explicit statutory pre-emption language for pre-emption to take effect. States may not coin their own money, or issue their own copyrights, even though there is no "occupy the field" verbiage (that I know of) in the Federal laws dealing with those subjects. Same with immigration.

As for the 4096 character limit, you'll have to talk to Google about that.

Mike said...

You're speaking of Article 1, Section 8, which is oddly and not uniformly applied.

Congress has claimed the right to "exclusively" coin money. However, the same clause grants the Federal government the right to levy taxes, without prohibiting the States (or sub-localities such as counties, parishes, cities, towns, etc) from doing same.

Further, the clause does not speak of immigration, but of naturalization.

Now, one might rule that being able to regulate "commerce" with foreign nations also lends authority to regulate the travel of foreign nationals (e.g. "immigration"), but realistically, there is plenty of argument to be made that the States themselves can still, individually, place limits on what foreign nationals of various status may do while in the state itself: this especially is relevant when dealing those whose presence is an affront to existing law.

Now, granted, the jurisprudence is divided. Laws in Illinois and Texas related to this (though municipal and not State laws) have been struck down in their federal districts, while at the same time, laws in Arizona previously (the 2008 employer-sanctions law, aka Legal Arizona Workers Act) and Missouri have been upheld.

And of course, if you compare SB 1070 to California Law... pay special attention to 843b, doubly so to the prohibition on failure to enforce.

Every law enforcement agency in California shall fully
cooperate with the United States Immigration and Naturalization
Service regarding any person who is arrested if he or she is
suspected of being present in the United States in violation of
federal immigration laws.


Interesting, isn't it?

Transplanted Lawyer said...

I agree with both points of your most recent comment. Yes, the California law is different than the Arizona law, but not very different; Arizona's law is only incrementally different from California's so the comparison seems like apples-to-apples to me.

I also agree that there are some significant unsettled issues of law here, with ample room on either side of the various issues for people of good faith to disagree with one another about how things should be resolved. That applies to both the Constitutional issues and the policy issues.

Who knows? LULAC v. Wilson could be distinguished, overturned, or overruled based on this and Arizona could wind up winning. I don't think that would be the right result, but if it were the actual result, I wouldn't be all that surprised.

In the meantime, you've given me more to consider on the issue and I hope I've returned that favor. Third parties reading the back-and-forth should profit immensely from our dialogue. This has been the quality of discussion that I hope to foster for the future. So thank you, very much, for being part of that.

Mike said...

Regarding LULAC V. Wilson, the fact that we allow racial supremacist groups of any sort (LULAC, KKK, etc) to comport and distort our laws is a bit annoying to me. While yes, we can't specifically deny them anything significant due to First Amendment protection, it seems like their being involved in the legal system more often than not is simply abuse of the system, rather than anything helpful.

Moreover, the fact that California capitulated on Prop 187 - whether you agree with the result or not, and I certainly disagree with the notion that people illegally here somehow deserve public services nonetheless - has left the US without a clear and defining legal precedent one way or the other. Nobody can really call the final decision definitive, and anyone referring to it is going to be hard-pressed to even call it binding precedent with a straight face, since the decision to drop the case was entirely political in nature.

Yes, the California law is different than the Arizona law, but not very different; Arizona's law is only incrementally different from California's so the comparison seems like apples-to-apples to me.

Insofar as the Arizona law prescribes harsher punishments than the federal law (while the Calif. law doesn't), there is ample precedent for constitutionally valid laws wherein States define either harsher or more lenient punishments than the federal government for a particular crime - be it minimum or maximum sentences, or statutes of limitations that last longer.

The only difference in "failure to enforce" clauses is that Arizona specifically allows for civil lawsuits in its law, rather than requiring local or state attorneys general to file such a lawsuit. I have a hunch that California law may elsewhere have a stipulation allowing for a civil suit in this or similar regards anyways, given the nature of the lawsuits against San Francisco filed in 2004 re: gay marriages, but I can't find the precise clause at moment.

Mike said...

I fail to see how a referral of a large number of detainees to Federal law enforcement by state law enforcement, based on that state law enforcement agency's suspicion that these detainees have violated a single Federal law, could be seen as anything but an effort by the state to make the Federal government direct more resources into enforcement of that particular Federal law.

Could it be seen that way? Perhaps so. However, it seems to me that any situation where federal resources were referred to in any way necessarily falls into the same area. A state repeatedly calling for federal aid following natural disasters is "an effort by the State to make the Federal government devote more resources," just as assuredly.

Likewise, a state attorney general suing the federal government in court over enforcement, or lack thereof, of a specific Federal regulation or statute, would seem to be "an effort by the State to make the Federal government" alter its priorities, no?

The fact that any President has his head up his ass with regard to priorities does not preclude option for various State governments - or for that matter Congress (which has the Power of the Purse) - to second-guess him.

A Teacher said...

The problem is that most of these arguments are lost on most Americans.

People carry thier liscence in their wallet or purse. If I'm traveling abroad, I'm going to keep the documentation on me that that government requires me to. People who are here legally have their proof of citizenship. These are 'facts' that most people 'get'.

Which is why this challenge to the law seems like an end-around the reality of it. Maybe it is unconstitutional. But how much political clout does the president get if he effectively sues and gets it struck down? The implication is that it is then 'illegal' for cops to ask about citizenship. THe statement is that the President doesn't want the "Boots on the Ground" police to enforce the laws.

It seems like a big steaming pile of Lose. Yeah we can agrue the finer points, but at the end of the day, people want illegal immigration stopped, and something 'done' about those already here. Striking this down without something in the pipe is ~not~ going to seem like something is being 'done'.