The Transformation of Immigration Federalism

Article excerpt

CHIEF JUSTICE ROBERTS: Before you get into what the case is about, I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none ofthat in your brief.

GENERAL VERRILLI: Where- that's correct, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Okay. So this is not a case about ethnic profiling.

GENERAL VERRILLI: We're not making any allegation about racial or ethnic profiling in the case.1

Thus began the Solicitor General's argument in the landmark case of Arizona v. United States? This might strike the casual observer as odd. After all, concerns about dscriminatory policing and unlawful harassment, detentions and arrest were the core of the criticisms lodged against Arizona's controversial Support Our Law Enforcement and Safe Neighborhoods Act3 (generally referred to as "S.B. 1070") from the moment Governor Jan Brewer signed the bill into law on April 23 , 20 1 0.4 The President of the United States criticized the law as "undermining] basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe."5 The Mexican American Legal Defense Fund decried the law as "a recipe for racial and ethnic profiling."6 Cardinal Mahoney of Los Angeles declared that the provisions requiring state and local officials to verify immigration documents were akin to Naziism.7 Liberal commentator Rachel Maddow quickly dubbed S. B. 1070 the "papers, please" law and criticized it on similar grounds.8 In their initial challenge to the Arizona law, many immigrants' rights and civil rights advocacy groups raised challenges to the law based on the Fourth Amendment's prohibition on unreasonable searches and seizures and the Fourteenth Amendment's guarantee of equal protection.9 Indeed, these challenges have been renewed in the wake of the Supreme Court's decision in Arizona v. United States}0

The Solicitor General quickly clarified that those arguments were not before the Court in April of 2012. He framed his claim as a simple one: the state of Arizona had exceeded its authority in enacting S.B. 1070, and four sections of the legislation were preempted by federal immigration law.11 Arguably, however, the Solicitor General immediately ceded too much ground in the first few seconds of his argument. On the one hand, the facial preemption challenge mounted by the federal government did not and could not rest on individualized showings of racial and ethnic profiling. On the other hand, it is because the Arizona law was inconsistent with, among other things, the antidiscrimination principles embedded in the structure of federal immigration law that it was preempted. The structural certainty of racial and ethnic profiling in the enforcement of S.B . 1 070 is an important reason why the law was preempted, not a separate set of concerns that needed to wait for an as-applied challenge.

The courts and the litigants were aware of individual rights issues that lurked behind the dispute over federal power. Preemption became a means through which the feared individual rights consequences of S.B. 1070 might be averted without the need to litigate the effects of the law on particular individuals.12 The preemption argument was therefore critically important for noncitizens present without authorization.13 As Professor Hiroshi Motomura has illustrated, preemption claims are one of several kinds of claims raised in litigation as a means by which unauthorized migrants "assert rights obliquely and incompletely."14 Identifying, detaining, and in some cases prosecuting unauthorized migrants are the express goals of S.B. 1070.15 Those goals are not constitutionally prohibited provided they are achieved through constitutional means. After all, the federal government does all of these things every day.16 Unauthorized migrants therefore could not challenge the law on the grounds of its intended results; they could only challenge the means by which those results would be achieved under the law. …