Vail Law: Arizona immigration law not just about immigration
July 12, 2010
What about Arizona’s immigration law?
Vail Law bug
There’s been a hue and cry over Arizona’s new immigration law, scheduled to go into effect on July 29. Whether you’re for it or agin’ it, let’s at least set the stage, understand what the law is intended to do, and place the conflict in the proper context of the federal government’s policies and responsibilities relating to immigration.
In short, Arizona’s law requires immigrants to carry their alien registration documents at all times, and requires police to question people if there is reasonable cause to suspect they may be in the country illegally. It allows police to demand proof of legal residency from anyone reasonably suspected of being in the state illegally.
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The law also targets those who hire illegal immigrants or knowingly transport them. The law requires employers to determine their workers’ immigration status through a federal database, and targets the business licenses of employers who knowingly hire illegal immigrants. Penalties include a license suspension for a first offense and revocation for the second.
Moving toward us and them?
A main concern of opponents to the law is that it will foster racial profiling. How, after all, does one “look like” he or she may be in the country illegally? Does an illegal British alien look different than a citizen of British descent? Or is the legislation really targeted to “visible” minorities?
At stake, too, is what, exactly, constitutes “reasonable cause” to question someone’s status. There is also the moral-political-practical question of divisiveness – will legislation such as this further fracture the social fabric? Will it divide us into camps based on color and characteristics and render visible minorities – even citizens and legal aliens – as “them” as compared to the rest of “us”?
Also in question is the extent of a state’s authority to enforce immigration-related laws without stepping on the federal government’s exclusive power to regulate the nation’s borders. Opponents also argue that the Arizona law is broader than federal law.
Arizona officials contend the new law consistent with national policy and strengthens federal enforcement.
The federal government’s authority to make immigration law derives from the concept of “preemption,” whose origins lie in the Supremacy Clause of the United States Constitution. In simple terms, this provision means that any federal law – even regulations of federal agencies – overrides any conflicting state law.
Preemption may be express or implied. When Congress chooses to expressly preempt a state law, the only question for consideration before the courts is whether the law is one that the federal law is intended to preempt.
Implied preemption is a more difficult issue. The court must look beyond the language of the federal statutes to determine whether the federal government has “occupied the field” in which the state is attempting to regulate, whether a state law conflicts with federal law, and if enforcement of the state law might frustrate federal purposes.
Federal “occupation of the field” occurs, according to long-established precedent, is when there is “no room” left for state regulation. Courts look to the pervasiveness of the federal scheme, the federal interest at stake, and the danger of frustration of federal goals and purposes.
Challenging popular law
The Arizona statute came into being in 2007. Since that time, at least five other states have enacted similar laws and a host of others are sniffing the air to see which way the wind blows. If you believe the most recent polls, the overwhelming majority of Arizonans support the law and a lesser, but significant majority of Americans in other states stand with them.
The law has been previously challenged and the federal court of appeals in San Francisco upheld the law last year as an exercise of a state’s traditional power to regulate businesses. The appeals court noted that federal law permits states to use business-licensing laws against employers of illegal immigrants. But in its recent appeal to the Supreme Court, the Obama administration argued that the Arizona law constitutes a hiring ban rather than a licensing law and employs the device of business licensure restriction solely for the purpose of punishment.
Justice Department lawyers advanced that law subjects employers to stiffer penalties than federal immigration law and because the law lacks anti-discrimination safeguards that are included in, it could have the affect of chilling employers from hiring minorities.
At the end of the day, what is at stake in Arizona is not just immigration, although the seriousness of immigration policy should not be minimized. What is at stake as well is defining who we are as a people, to what extent in the pursuit of policy we wish to drive wedges between us, the real issues of a teetering economy, the long history of ineffective federal policy, and – perhaps most critically of all – balancing power between the states and the federal government. Specifically, the war between the state of Arizona and the Obama Justice Department revolves as much around issues of immigration as it centers on the long-running power struggle between the states and the federal government and to the breadth and reach of pre-emption.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) and seen on ECO TV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at firstname.lastname@example.org.