Papers, Please: Does the Constitution Permit the States a Role in Immigration Enforcement?
Eastman, John C., Harvard Journal of Law & Public Policy
Arizona kicked up quite a dust storm in 2010 when it enacted Senate Bill 1070 (S.B. 1070). (1) Proponents hoped the law would help Arizona control the burgeoning illegal immigration into the state and its attendant costs--costs that affect the financial stability of the state, the safety of its residents, and the very rule of law itself. The legal professoriate almost uniformly derided Arizona's new law as an unconstitutional usurpation of immigration policy--an area that the Constitution assigns exclusively to the federal government. (2) In particular, commentators targeted Section 2 of the law, which requires police officers to verify the immigration status of anyone who is lawfully detained, contending that it is patently unconstitutional under Hines v. Davidowitz (3) and would require racial profiling. (4)
Critics similarly derided Alabama's new immigration law, particularly Section 28 of the Taxpayer and Citizen Protection Act, (5) which requires every public elementary and secondary school in the state to determine if an enrolling student is lawfully present in the United States. (6) Critics contended that the law ran afoul of the 1982 case of Plyler v. Doe, (7) in which the Supreme Court held that denying free public school education to illegal immigrants violates the Fourteenth Amendment's requirement of equal protection. (8)
This Essay explores the legal challenges to the two statutes, addresses how the Department of Justice (DOJ) fundamentally misunderstands the nature of state sovereignty and federalism, and concludes that, with the possible exception of one provision of the Arizona law, the states are acting well within their authority to protect the health, safety, and welfare of their residents without intruding on the plenary power over immigration and naturalization that the U.S. Constitution vests in Congress.
I. ARIZONA'S S.B. 1070
"In response to a serious problem of unauthorized immigration along the Arizona-Mexico border, the State of Arizona enacted its own immigration law enforcement policy" in April 2010, making "attrition through enforcement the public policy of all state and local government agencies in Arizona." (9) Thus begins the Ninth Circuit's opinion addressing the constitutional challenges to the Arizona law, and although that court affirmed the district court's preliminary injunction of portions of the law, (10) the description of Arizona's purpose is almost entirely correct. Arizona does have a serious problem with illegal immigration. As the district court more emphatically described the situation, the Arizona legislature adopted S.B. 1070 "[a]gainst a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns." (11) Additionally, S.B. 1070 explicitly describes its purpose as "attrition through enforcement" (12) and sets out Arizona's policy for how state law enforcement deals with issues related to illegal immigration in the state.
Although one might quite properly take issue with the Ninth Circuit's substitution of the word "unauthorized" for "illegal" as a ratification of the Orwellian effort by many in the proillegal immigration movement to use more innocuous words like "undocumented" or "unauthorized" to minimize the illegality of illegal immigration, that semantic fight is a sideshow that does not really affect the merits of the legal challenge. More relevant to the substance of the challenge, and more in dispute, is the loaded use of the word "own." Whether Arizona has embarked upon its "own" immigration policy or simply directed its law enforcement officials to help with the enforcement of federal immigration law, is, of course, the crux of the dispute. The same preamble that contains the "attrition through enforcement" language also mentions the legislature's finding that the state has "a compelling interest in the cooperative enforcement of federal immigration laws.. …