Papers, Please: Does the Constitution Permit the States a Role in Immigration Enforcement?

By Eastman, John C. | Harvard Journal of Law & Public Policy, Spring 2012 | Go to article overview

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.. …

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

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.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Papers, Please: Does the Constitution Permit the States a Role in Immigration Enforcement?
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
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?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    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.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.