Nichole Hungerford

Arizona Immigration Law Unconstitutional?

Posted on May 1 2010 3:56 pm
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Not that leftists typically worry about the Constitution unless they’re trying to circumvent it or render it obsolete, but in this case, they might have a point.

Many are claiming that Arizona’s controversial new immigration law is unconstitutional. The reason? Article I, Section 8 of the Constitution:

The Congress shall have Power….To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

The “Rules of Naturalization” clause is, traditionally speaking, what grants Congress the authority to regulate immigration. If a power is not enumerated in the Constitution as vested in the Congress, then it is delegated to the states. However, if it is an enumerated congressional power, states do not have jurisdiction over the issue as pursuant to the Supremacy Clause.

Some textualists might argue that the “naturalization” element of the clause definitionally refers (or referred at the time of the document’s drafting) to “investing aliens with privileges of naturalize citizens.” As such, it can be distinguished from the concept of “emigration” or “immigration” which refers to people moving from place to place. However, even if we wanted to take a textualist approach, clearly, when people immigrate to our country, this necessarily involves conferring the privileges of naturalized citizens. Thus, it is the Congress which has authority over the “uniform Rule” of this process, in other words, its regulation.

Anyway, this much isn’t really controversial to American jurisprudence. Immigration has been a federally regulated issue for quite some time. What we do have are special laws which permit the cooperation of state governments and law officials to enforce federal laws. But this authority is very, very narrow and really only there to aid federal enforcement. Furthermore, it is a power that is granted by the federal government. It doesn’t work the other way around.

Here is the law from 8 U.S.C. Sec. 1252c which outlines the authority of state law officials and immigration enforcement:

(a) In general.  Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who–

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

(b) Cooperation.  The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.

What the Arizona law does really goes beyond this. Under reasonable suspicion, Arizona law enforcement may check the documentation status of certain individuals. It also permits Arizona law enforcement to arrest, without warrant, any person with probable cause of being removable from the United States. However, state law enforcement has to have confirmation from the federal government to arrest or detain individuals here illegally (unless they are committing some other crime). Illegals cannot just be arrested by the independent volition of local law enforcement for being here illegally. At the very least, they would need confirmation from the Immigration and Naturalization Service to whom illegal individuals would then have to be turned over. Or so it would seem.

Crafters of the Arizona legislation say that the preceding worries aren’t valid because they claim they are merely enforcing the federal laws already in place. However, if Arizona is trying to so do by granting themselves new powers, then it’s just not clear how they can possibly do so. The legislation will very likely face serious constitutional issues in the future, no matter how well intentioned it may be.

That being said, I do think Arizona’s legislation is well-intentioned and, in principle, I’m a fan of the spirit of its measures. I’m expecting there to be cogent legal arguments out there its behalf, which I’m very interested in considering. But, conservatives who claim to revere the merits of legal process cannot countenance laws which compromise the integrity of our legal system. Trying to enact productive legislation is great, but the bottom line is that the legal justification must come first.

The larger issue that the Arizona immigration legislation raises, I think, is what ought we to do when the federal government is woefully remiss in carrying out its duties and protecting its citizens? Surely, Arizona cannot stand idly by while its borders are inundated by wards of a narco-state and innocent Americans die as a result. Is the situation so urgent that Arizona must enact laws which it is not, strictly speaking, authorized to do? Or is the legislation really within the legal authority for Arizona to implement in the first place? I leave this discussion open for others to weigh in on.

Special thanks to brilliant legal discussion with Matthew Austin for analysis on this post.

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