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Is Immigration an Exclusive Federal Responsibility?

Apr 24, 2012
Patrick Sullivan

For the past two years Arizona’s Senate Bill 1070 (SB 1070) has been working its way through the courts creating an environment of ambiguity and anxiety for our nation’s immigrants. Tomorrow, the constitutionality of SB 1070 will finally be argued before the Supreme Court. While our nation is in serious need of immigration reform, a decision supporting the bill would manifest into tougher enforcement practices but a ruling striking down the bill would facilitate continued progress for immigration advocates.

Generally, a state cannot pass laws that defy, obstruct, or contradict Congressional aims. The Immigration and Nationality Act (INA) charges the Executive Branch, through the Department of Homeland Security (DHS), with enforcing immigration laws and leaves limited opportunities for state cooperation under federal supervision. Some parts of Arizona’s SB 1070 create a scheme that may require state officials to overstep the boundaries outlined in the INA.

 The Supreme Court must interpret what Congress intended the states’ roles to be, then apply that interpretation to Arizona’s SB 1070.

The Ninth Circuit Court of Appeals held that Congress has allowed some state cooperation in enforcing federal immigration laws, but such cooperation shall only be executed under the close supervision of the Attorney General. Additionally, the court held that Arizona’s SB 1070 effectively usurps the power of DHS, and by extension Congress, by turning its police officers into state-directed DHS agents who are not accountable to the Attorney General.

If the Supreme Court’s decision favors the federal government, the contested sections of the Arizona immigration statute will be deemed unconstitutional. Although the Supreme Court’s decision will turn on the proper role of state involvement in immigration enforcement, there are other constitutional questions raised by SB 1070 that will not be addressed by the Supreme Court. These include possibilities of infringement upon the Equal Protection, Fourth Amendment, and First Amendment rights of our immigrant community, regardless of legal status. Despite the serious threats to civil rights the bill presents, the decision of the state’s role in immigration by the Supreme Court will significantly affect pending state and federal legislation surrounding this highly politicized issue.

Source: United States v. Arizona, 641 F.3d 339, 2011 U. S. App. No. 10-16645

*Patrick is an intern with CLINIC's Advancement, Marketing and Communications section