The decision in U.S. v. Arizona finds several provisions of Arizona law preempted, mainly on the ground that they interfere with federal policy. It’s hard to be too critical of a judge who comes to that conclusion when the very agencies charged with making federal policy insist at the top of their lungs that state law is interfering with their policy. That said, the decision has to make some heroic assumptions to find an interference with federal policy.
For example, two provisions of the law required local police to check the immigration status of people whom they arrest or whom they stop on suspicion of violating immigration law. DHS claimed that the provisions would overburden the federal centers that check immigration status and thus would prevent the centers from checking the status of higher priority persons, such as felons. You’d think it would be pretty easy for the feds just to tell the Arizona police, when they call, that the centers will answer Arizona requests only after higher priority requests have been answered. But evidently no one at the document-checking centers can say no. That’s pretty scary. I might want to date them, but I’m not sure I want them enforcing the law.
Another provision, making it a state crime as well as a federal crime for aliens not to carry registration papers, falls because it adds a state penalty to existing federal penalties, even though the crime remains the same. The court concludes that state law is preempted even if it simply reinforces federal law. That is a very broad reading of the case law and of preemption principles, overbroad in my view, but it’s a position this administration is pushing hard in immigration cases; indeed, it will be making precisely that argument in the Supreme Court this term. (Yep, attacking another, earlier Arizona law.)
That broad view of preemption also doomed the provision making it a state crime for an illegal immigrant to seek employment in Arizona. Although state regulation of employment is supposed to get a presumption against preemption, the court found this provision preempted because it goes beyond what Congress has done. You see, Congress didn’t make it a crime for illegal immigrants to seek employment. Instead it achieved a similar result in two steps, first requiring prospective employees to attest that they are in the country legally, then authorizing criminal prosecutions of those who attest to their legal status falsely. Since state law gets to criminal liability in one step, rather than two, the court ruled, state law deviates too far from federal policy.
Finally, there’s a provision of state law that the parties agreed would require the arrest of people who had committed offenses in other states that made them removable under federal immigration law. The federal Office of Legal Counsel had already ruled that state authorities could arrest offenders in this situation, so it was hard to say that the arrests would violate federal policy. Undaunted, the federal government made explicit an attitude that is often implicit in its dealings with state officials — they are Too Dumb to Enforce Real Laws. Or, as the opinion says with a shade more delicacy, “In its Motion, the United States provided evidence that Arizona police officers have no familiarity with assessing whether a public offense would make an alien removable from the United States.”
The state responded that even the most clueless state officer could always call the feds and get their advice. Not good enough, the court said. Why? Because the statute doesn’t require the police to make that call. Poor Arizona law enforcement: not simply Too Dumb to Enforce Real Laws but Too Dumb to Use a Phone Without Instruction. At least in the eyes of Judge Bolton.
– Stewart Baker served as assistant secretary of homeland security for policy under Pres. George W. Bush and is the author of Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism.