The Transformation of Immigration Federalism

By Chacón, Jennifer M. | The William and Mary Bill of Rights Journal, December 2012 | Go to article overview
Save to active project

The Transformation of Immigration Federalism

Chacón, Jennifer M., The William and Mary Bill of Rights Journal

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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

The Transformation of Immigration Federalism


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?