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Muddling through the enforcement of U.S. immigration law

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April 24th, 2012

President Ronald Reagan once warned that A nation without borders is not a nation. While it might seem as though the commander in chief stated the obvious, opinions have differed in recent years on who has the right to enforce immigration law. Since the Constitution s ratification in 1787, it has gone without saying that the federal government has the authority to regulate its borders and dispense citizenship key powers at the core of a nation s sovereignty. However, in 2010, Arizona Gov. Jan Brewer signed what was, at the time, the most stringent immigration law ever enacted at the state level. The Support Our Law Enforcement and Safe Neighborhoods Act better known as SB 1070 carries more than half a dozen provisions that crack down on the state s massive illegal immigrant population. The statute s most controversial section requires that Arizona police investigate a person s immigration status during a lawful stop, detention, or arrest when there is a reasonable suspicion that they are in the country illegally. If their presence is unlawful, local officials hand the case off to the U.S. Department of Homeland Security. A Rasmussen Reports poll taken shortly after Arizona enacted the law reported that 60% of Americans support legislation that empowers state and local police to verify the status of individuals that they reasonably believe are here illegally. That same year, a study by the Pew Research Center found that 11.2 million unauthorized immigrants were living in the U.S., eight million of them holding down jobs.

Federal vs. state

Nonetheless, SB 1070 invited a firestorm of criticism, most notably from the Obama Administration, which argued that the law infringed on federal territory in violation of the Constitution s Supremacy Clause, sparking a debate over a state s right to dabble in matters of immigration. When considering the legality of Arizona s SB 1070, you have to look closely at the text of federal immigration law, says Ben Winograd, a staff attorney with the American Immigration Council in Washington, D.C. Federal law authorizes officers and employees of the Department of Homeland Security to do a series of things, one of which is interrogating people about their right to remain in the United States. According to Winograd, this power extends to border patrol agents, deportation officers, immigration inspectors, and immigration enforcement agents, not state and local officials. The Ninth Circuit Court of Appeals agreed. In response to a lawsuit filed by the U.S. Justice Department in July 2010, the court barred several of the Arizona law s provisions from taking effect including those pertaining to local law enforcement on grounds that federal statutes preempt state law. Gov. Brewer appealed the ruling to the Supreme Court, and some believe that when the justices hand down their decision this June, it will be in Arizona s favor. In this case, there s no question that the Constitution gives the federal government power over immigration, says Hans von Spakovsky, a senior legal fellow at the Heritage Foundation. What that means is that states don t have the power to control the nation s borders, deport people, or grant and deny citizenship. But there is nothing wrong with a state assisting the federal government in the enforcement of immigration law, and that s precisely what you have with the Arizona statute. In fact, a number of states have enacted similar laws on the heels of SB 1070, some of them with tougher regulations than Arizona s. Alabama s Beason-Hammon Alabama Taxpayer and Citizen Protection Act (HB 56), for instance, criminalizes a non-citizen s failure to obtain or carry an alien registration document provided by the federal government; requires police officers to investigate an individual s immigration status in cases of reasonable suspicion ; and makes it a felony for an unlawfully present non-citizen to enter into a business transaction with the state of Alabama. A federal district court judge refused to bar these provisions in a separate lawsuit filed by the U.S. Justice Department. A big part of the problem is that these state laws are more severe than their federal counterparts, argues Winograd. For example, if an unlawful non-citizen is caught working in Arizona, he faces a felony punishable by up to six months in jail under the state law. Under the federal statute, it s a civil offense with no prison time. It s pretty clear that there is a conflict between state and federal law, and constitutionally, federal trumps state.

State-level frustration

Still, as Spakovsky notes, much of the backlash at the state level has occurred out of frustration with the U.S. government s failure to enforce its own policies. The best example of this goes back to the 1990s, he says, when Congress amended the Federal Immigration Act to prohibit states from offering in-state tuition to illegal immigrants unless they also provided in-state tuition to citizen students from other parts of the U.S. Despite that federal law, we now have 12 states that are violating the provision, and the Justice Department hasn t done anything about it. Several states have joined Arizona and Alabama in drafting statutes that assist with the federal enforcement of immigration policy. Spakovsky predicts that many of them will be the targets of lawsuits spearheaded by the Justice Department. Until then, state legislators and legal experts alike anxiously anticipate the Supreme Court s decision in the Arizona case, which they hope will help settle the conflict over federal and state immigration laws. michael.williams@erickson.com

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