Jan Brewer Arizona Immigration Law is an Overreach of State Power

In my view, the Supreme Court will strike down the heart of S.B. 1070. Arizona will be relying on De Canas v. Bica (1976) and Chamber of Commerce v. Whiting (2011). Even state regulation designed to protect vital state interests must give way to paramount federal legislation. True, the Court in De Canas v. Bica and Chamber of Commerce v. Whiting would not

presume that Congress, in enacting the INA, intended to oust state authority to regulate the employment relationship covered by [the state law] in a manner consistent with pertinent federal laws. Only a demonstration that complete ouster of state power—including state power to promulgate laws not in conflict with federal laws—was “the clear and manifest purpose of Congress” would justify that conclusion. [1]

In contrast to De Canas where the Court found that the state had an important economic goal behind its enactment of an employer sanction law, [2] Arizona’s S.B. 1070 and Hazleton, Pennsylvania’s no-renting-to-undocumented-immigrants ordinance present different questions. While those jurisdictions might offer an economic basis for the law, evidence is quite clear that the real purpose behind the laws is regulation of immigration — an area that is preempted by federal law. For example, Arizona Governor Jan Brewer signed and supports S.B. 1070 because the federal government “is not doing its job” of securing the border. [3] S.B. 1070 is about the regulation of immigration for its allies and Brewer. [4] When Hazleton, Pennsylvania, enacted its ordinance, its supporters made clear that their intent was the control of Latino immigrants:

The consequences which this immigration disaster holds for our children [are] horrendous. Coloreds will take political control of more states, along with both houses of Congress and the presidency. Whites will quickly be stripped of their rights with our wealth confiscated for redistribution to non-whites as is taking place in South Africa. . . . Will America become the United States of Mexico? [5]

Unfortunately for lawmakers in Arizona and Hazleton, they do not have the authority to regulate immigration.

Thus, in litigation challenging Arizona’s S.B. 1070 and Hazleton’s ordinance, the federal courts have had little difficulty in finding that the laws are preempted. In the Arizona case, the Ninth Circuit Court of Appeals upheld the injunction of the primary provisions of the law on preemption grounds: the requirement that local law enforcement verify immigration status of all arrestees; the new state law making it a crime for failing to carry immigration papers; another new law that made it a crime to apply for work without proper documentation; and the attempt to authorize local police to enforce the civil provisions of the Immigration and Nationality Act. [6] The court agreed with the federal government that its enforcement plan would be thwarted by Arizona’s law and was therefore preempted as an improper state attempt to regulate immigration. [7] Although the Third Circuit’s decision on the Hazleton ordinance has been vacated for reconsideration in light of the Whiting decision, the court initially found that the no-renting-to-undocumented-immigrants provision was an attempt to “regulate which [immigrants] may live [here].” [8] In other words, the ordinance attempted to regulate immigration, and was therefore preempted.

[1] De Canas, 424 U.S. at 357 (citations omitted).

[2] Similarly in Pacific Gas & Electric v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983), the Supreme Court concluded that a California law imposing a moratorium on the construction of nuclear power plants was not preempted because its main purpose was economics and not safety; the state withstood a preemption challenge that Congress had intended to preempt the field of nuclear regulation. See notes --, infra, and accompanying text.

[3] Howard Fischer, Will SB1070 remain on hold?, Arizona Daily Sun, Nov. 2, 2010, available at: http://azdailysun.com/news/state-and-regional/article_cfd0ac68-343a-5fc5-97d1-2464db66d7e8.html.

[4] The Ninth Circuit noted the immigration purpose behind S.B. 1070,

In April 2010, 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 [S.B. 1070, which] “make[s] attrition through enforcement the public policy of all state and local government agencies in Arizona.”

United States v. Arizona, 641 F.3d 339, 343 (9th Cir. 2011).

[5] Transcript of Record Vol. 2 at 5–6, Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007) (No. 3:06-CV-1586), available at http://www.aclupa.org/downloads/lozano2.pdf.

[6] United States v. Arizona, 641 F.3d at --.

[7] Id. at --.

[8] Lozano v. City of Hazleton, 620 F.3d 170, 220 (3d Cir. 2010), vacated, 131 S. Ct. 2958 (2011). The Supreme Court has asked the Third Circuit to reconsider Lozano in light of the Supreme Court’s recent decision in Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968 (2011). However, as long as the evidence reveals that the purpose behind the Hazleton ordinance is the regulation of immigration, the ordinance faces serious preemption problems nonetheless.