A year and a half ago, I published an article on this blog called, “Arizona Law will be found unconstitutional?” The article is about the immigration-type law, S.B. 1070, signed by Gov. Jan Brewer on April 23, 2010 which was intended to curb the influx of undocumented aliens coming into Arizona or as Gov. Brewer put it, to protect Arizonans from the “murderous greed of drug cartels” and “destruction happening south of our international border that creeps its way north.”
At the time S.B. 1070 was written, many believed it was constitutional and that it would withstand any legal challenge to its constitutionality. However, everything that transpired after S.B. 1070 was originally written, tells a whole different story. S.B. 1070 was transformed. It seemed that the Arizona legislature was not as confident as they originally felt after the Justice Department decided to challenge the law in court.
Subsequent to the challenge, Gov. Jan Brewer’s legal team revised S.B. 1070 so that it was narrowly tailored to remove the vast amount of discretion it originally gave its law enforcement and government agencies. The changes were made mainly to address the profiling concerns that would have inevitably commenced upon its enforcement. Nevertheless, in spite of these changes and Arizona’s so-called compelling interests, S.B. 1070 will be held unconstitutional if the Supreme Court abides by case law and the Constitution of the United States.
There are three main reasons S.B. 1070 will not survive the challenge: (1) Arizona’s legislative authority is pre-empted by the federal government; (2) Arizona places an undue burden on interstate commerce; and (3) Arizona interferes with the ability of the U.S. to exclusively conduct and achieve its foreign objectives, straining ties with its major trade allies and reprioritizing international criminal enforcement agreements.
#1. S.B. 1070 is Pre-empted
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and . . . every State shall be bound thereby, any . . . Laws of any State to the Contrary notwithstanding.”
This is taken from Article VI of the Constitution, and is known as the Supremacy Clause. A plain reading of Article VI reveals, should Congress legislate or the Supreme Court rule on an issue, it binds all, and is the supreme law of the land. Furthermore the Supreme Court has interpreted the Supremacy Clause of the Constitution to mean that federal statutes, laws and regulations will preempt state or local action where they conflict. There is no doubt that S.B. 1070 directives are contrary to federal statutes and agreements.
Title 8 of the United States Code reads, “Aliens and Nationality,” which begins with Chapter 1 §1 and ends in Chapter 15 § 1778. This Title covers a wide range of contiguous topics aliens living in the United States would encounter in their everyday lives including, but not limited to, alien ownership of land, restriction of welfare and public benefits, registration, removal and even alien veterans. Title 8 contains a wealth of statutes that has been incorporated into the code by numerous congressional Acts over the generations. Included in these Titles are the requirements for presentment, which is the showing of proof of legal entry by aliens.
Not only has Congress spoke on this particular issue, but in 1941 the Supreme Court ruled in Davidowitz, that States cannot require aliens to carry registration cards or require them to present proof of legal entry to state officials except in certain circumstances where Congress has permitted it. In Davidowitz a Pennsylvania statute required every alien over the age of 18 to register and furnish information once a year with the Pennsylvania’s Department of Labor and Industry. This information was used to furnish an identification card to these aliens, and they were required to carry it at all times for presentment to police and others upon demand. The Supreme Court ruled this entire scheme unconstitutional.
Although Arizona does not require registration with the state itself, it is in essence requiring aliens to carry their federally issued registration cards for presentment to police and other state agencies. Thus that, in and of itself, is no different than registering with the state for the same purpose, except Arizona is using the federal government as a proxy for the issuance of the alien registration cards. Therefore the Justice Department will be able to prove that S.B. 1070’s main objective is to determine, by presentment, who is or who isn’t documented.
#2. Arizona S.B. 1070 obstructs commerce
At a time when unemployment is close to 9 percent Arizona seeks to stifle the economy by criminalizing the transport of suspected undocumented aliens and turning everyone in Arizona into de facto immigration officers for fear that violation of S.B. 1070’s transportation provision would result in the impounding of personal vehicles. Under S.B. 1070, Arizona has committed to impounding vehicles of individuals who knowingly or recklessly disregard the fact that someone traveling in their vehicle is an undocumented alien or an otherwise illegal alien, including legal aliens who have overstayed their welcome (visa). The law goes even further to allow impounding of personal vehicles if one is found to assist in the transport of undocumented or illegal aliens – this includes giving undocumented or illegal aliens gas money. Nevertheless this too is an impermissible provision of S.B. 1070, which violates the Commerce Clause, more specifically, the Dormant Commerce Clause.
Article I § 8 of the Constitution reads,
“The Congress shall have the power . . . to regulate Commerce with foreign Nations, and among the several States.”
This gives Congress broad powers to legislate and regulate numerous things in commerce including production, labor, trade routes, commodities, persons, vehicles and most importantly migrants engaged in commerce. Congress’s power to regulate commerce is supreme and plenary . . . unlimited except as specified in the Federal Constitution. Without need for case law that supports this aspect of the Constitution, it is clear that any state law which unduly interferes with commerce will be found unconstitutional. Mexico is a major trade partner with the U.S. and billions of dollars worth of goods are traded between its borders. Because Arizona has chosen to impose this harsh penalty, it tends to unduly burden commerce, because the cost of losing one’s livelihood, transportation or trade economy is too much for anyone to bear.
#3. Interference with the Executive
This issue is the most complex of all the issues because it entails the separation of powers and other case law that intertwines foreign affairs with prosecutorial discretion of the Executive branch of government. The Executive has the power to sign agreements with foreign nations that do not necessarily need the ratification from Congress. Furthermore the Executive also has the discretion on whether or whether not to prosecute. Believe it or not, even though there is a crime committed the executive reserves the right not to go forward with a suit. Most often we see this with federal and state prosecutors who often times choose not to go after offenders for a myriad of reasons. To Arizona’s disadvantage, the Executive has signed enforcement agreements with Mexico that priorities removal and prosecution of particular alien offenders; focusing on those criminal aliens that commit violent crimes or traffics illegal drugs and narcotics. This is obviously because the federal government has limited resources. Although, Arizona has not specifically targeted Mexicans, it is a fact that 9 out of 10 Hispanics and Latinos are of Mexican origin, a fact confirmed by the U.S. Census Bureau. Thus, it is clear that because S.B. 1070 respects no such enforcement scheme it will frustrate the purpose and enforcement of those executive agreements with Mexico.
In conclusion it is entirely clear that S.B. 1070 will be found unconstitutional just as many other Republican laws initiated since the election of President Obama. Moreover, the Obama Administration has gone the extra mile to take away Arizona’s only glimmer of hope by stepping up border arrests and deportations in record numbers, surpassing that of prior administrations, and making it very difficult for Arizona to argue that the Obama Administration has failed to enforce immigration laws or crackdown on illegal aliens. Notwithstanding Arizona’s misrepresentations in its briefs to the Supreme Court, I would like to see how Arizona intends to prove to the Justices that a person recklessly disregarded the fact that a passenger was an illegal or undocumented alien.