During the past ten years, over a third of the nation’s illegal border crossings occurred in the State of Arizona.
It has experienced the brunt of the republic’s illegal immigration problem, with its citizens describing themselves as under siege by large numbers of illegal immigrants who invade their property, strain their social services and even place their lives in jeopardy.
Although the people of Arizona have long demanded federal action to assist in curbing the tide, our national government has refused to protect its border integrity. The state therefore had little choice but to pass legislation designed to address the problems associated with unfettered illegal immigration. In 2010, it passed SB 1070, known as “The Support Our Law Enforcement and Safe Neighborhoods Act.”
In response, the US Department of Justice filed a lawsuit on July 6, 2010, requesting that it be declared invalid since it interferes with powers vested in the federal government.
After the matter was appealed from a lower court, the Ninth Circuit Court of Appeals ruled that four of the provisions were unconstitutional. Arizona then fought to reverse that decision. The Supreme Court, in December of 2011, agreed to consider the case.
On June 25, the Court issued a surprising majority opinion which affirmed much of the Ninth Circuit’s injunction against enforcement of the four challenged provisions, declaring it unconstitutional for Arizona to make it a state crime for an immigrant not to be carrying papers, to allow for warrantless arrests in select situations and to forbid illegal immigrants from working in Arizona.
In an about-face, it then upheld the most controversial part of the law — a provision which requires law enforcement officers to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is reasonable suspicion that the person is in the country illegally.
In striking down three of the four provisions, however, the majority opinion ignored the states’ traditional role in regulating immigration. Before the ratification of the Constitution, each state had the authority to prevent itself from being burdened by an influx of persons. The Constitution, upon adoption, did not strip them of that power.
There is nothing improper, traditionally speaking, with states prohibiting actions already prohibited by federal law, just as there is nothing wrong in assisting with enforcement when federal laws are violated. As noted by Justice Antonin Scalia in his dissent, Arizona did nothing more than attempt to protect its sovereignty. It was not in contradiction of federal law, but in complete compliance with it. SB 1070 did not extend or revise federal immigration restrictions, but merely enforced those restrictions more effectively.
“What this case comes down to,” Scalia argued, “is whether the Arizona law conflicts with federal immigration law — whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority.”
He eloquently explained, “federal power over immigration comes from the same source as state power over immigration: it is an inherent attribute – perhaps the fundamental attribute – of sovereignty. The States, of course, are sovereign, the United States being a Union of sovereign States. To be sovereign is necessarily to possess the power to exclude unwanted persons and things from the territory.”
In short, the Court essentially deprived Arizona of what most would consider the defining characteristic of its sovereignty, which is the power to exclude those who have absolutely no right to be there.
Spin doctors on both sides of the immigration debate will attempt to paint the Court’s majority opinion as a victory. And to be sure, both sides will be correct.
But the states will suffer because core features of federalism continue to be eroded by the federal judiciary.
And, in large part, Arizona still remains at the mercy of the central government’s refusal to enforce the nation’s immigration laws.
***** State Senator Chris McDaniel
Magnolia Tribune
