Immigration

By Gabriel J. Chin and Marc L. Miller. Chin is a Professor of Law at the University of California, Davis, School of Law, and Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. They authored The Unconstitutionality of State Regulation of Immigration through Criminal Law, which recently appeared in the Duke Law Journal and addresses these arguments, and others, in more detail. The views expressed are solely those of the authors.

Arizona v. United States, being argued Wednesday, will decide whether SB1070 is preempted by federal law.  We have previously co-authored papers about its complex provisions, and various legal doctrines that might be brought to bear on it, from the non-delegation doctrine to double jeopardy. But Arizona v. United States is, ultimately, a simple case.  Here is what we hope the Supreme Court understands.

SB1070 is preempted -- it is unconstitutional -- because it usurps powers that the Constitution, the Immigration and Nationality Act, and other federal statutes assign exclusively to the federal government. The Framers, Congress and the Court have consistently recognized that the security of the nation and fairness to non-citizens require that decisions and enforcement be under federal direction and control.

Four provisions of SB1070 are at issue. Three provisions involve direct immigration enforcement.

• Section 2 requires that state and local police investigate the status of suspected undocumented non-citizens who have been detained;
• Section 6 authorizes police to arrest non-citizens believed to be deportable; and
• Section 3 criminalizes the presence of non-citizens in Arizona if they have not registered under federal law.

The fourth provision (§ 5) criminalizes working in Arizona without authorization, which is not a crime under federal law.

By Tomas Lopez, Law Fellow, Southern Poverty Law Center. Mr. Lopez will be the featured speaker at a March 21 event on the state of Ala.’s anti-immigrant law.

Next month, the Supreme Court will hear arguments in Arizona v. United States, the case challenging Arizona’s SB 1070, the “attrition through enforcement” law that seeks to drive undocumented immigrants from the state.

Many people will pay attention, but few will do so more closely than those of us in Alabama. Here, SB 1070’s ideas metastasized into HB 56— a law that goes even further than Arizona’s in making the state simply inhospitable for undocumented immigrants. The law acutely harms the state’s most vulnerable people, its economy, and its reputation. Alabama’s experience exposes the reality of the anti-immigrant laws now at issue in Arizona and elsewhere: they largely fail to deliver on their promises and instead render needless damage and suffering.

I’m a part of a team at the Southern Poverty Law Center, which along with our co-counsel and allies, is challenging HB 56’s constitutionality. There is a lot for us to challenge. Alabama’s law reaches both more broadly and more deeply than its counterparts from other states. Like SB 1070, HB 56 criminalizes the failure to carry alien registration papers and authorizes law enforcement officers to verify the immigration status of any individuals stopped. However, it also includes provisions that:

• Prohibit and criminalize “business transactions” between undocumented immigrants and state agencies;
• Instruct courts to regard any contract to which an undocumented person is a party as unenforceable;
• Denies bail to detained undocumented immigrants; and
• Requires schools to inquire into the immigration status of every newly enrolled student and his or her parents.