Immigration: The Front Lines

Another summer headline dominating the cable news cycle  has been the effort in Washington, D.C. to reform our nation's inept immigration system.  The topic of immigration has generally been a hot-button social issue, but there are enormous legal implications at play as well.  Our country is a nation of immigrants, yet the topic stokes understandable tensions, passions, and opinions.  I wanted to write a post focusing on the current legal aspect of the immigration reform battle taking place across the country.  

The U.S. constitution delegates exclusive authority to the federal government to control relations with foreign nations, therefore, the courts have consistently ruled the federal government has absolute power with regard to immigration policy and enforcement.  In the past several years, a constitutional battle has emerged between state laws aimed at implementing their own immigration policy versus the exclusive authority of the federal government to regulate immigration policy.  

S.B. 1070:  While the tension between state and federal authority in the realm of immigration has long been an area of contention in our country, the effort by Arizona to pass S.B. 1070, a strict law which made it a state crime not to carry immigration papers among other measures, reignited the discussion of immigration reform across the country.   Currently, federal law requires all aliens over the age of 14 who remain in the United States for more than 30 days to register with the federal government and to carry their registration documents on them at all times; failure to do so is federal misdemeanor crime.  The Arizona law additionally made the failure to carry documents a state crime, while also allowing law enforcement officials to determine a person's immigration status during a lawful stop, detention, or arrest.  The Arizona law also allowed for the police to arrest an individual based on "reasonable suspicion" the person may be in the country illegally and had committed a crime that was punishable with deportation.  The law also made it a crime for illegal immigrants to work or apply for jobs in the state and allowed the police to check an individual's immigration status with any legal contact, which could be as simple as walking past someone on the sidewalk.  The provisions of the Arizona law sparked numerous protests across Arizona and throughout the country, with the primary concern being how a police officer would determine "reasonable suspicion" of someone being of illegal immigration status without resorting to racial profiling or other discriminatory tactics.

The Supreme Court ruled in 2012 to strike down 3 of the 4 provisions of the Arizona law, citing the federal government's absolute authority over immigration policy across the country.  The court also used the Arizona ruling as a direct warning to other states attempting to enact strict illegal immigration laws, saying their attempts will meet the same fate of the Arizona law.  The Justices also rejected Arizona's claim that their law was an attempt to help the federal government.  The provision the court allowed to stand, the section allowing police officers to check a person's immigration status during a lawful stop or detention, was only upheld because it had not yet gone into effect and therefore the court could not rule on something that was not yet in existence.  However, the majority had a stark warning for that provision as well, indicating a likely court challenge will come before them again with possibly similar outcomes. 

The Court's Warning:  When the Supreme Court struck down most of the Arizona law, they issued a direct warning to other states attempting to impose similar immigration laws: their laws will be voided as well.  Several states apparently did not heed the high court's warning and a string of judicial defeats have proven the Supreme Court right.  The single and primary reason state immigration laws are found to be invalid is because according to the U.S. Constitution, the federal government has the exclusive authority and jurisdiction as it pertains to immigration policy.  Arguments that the federal government is not doing its job or the laws are too weak may have merit, but legally the states cannot assume a power that has already been enumerated to the federal government and they will lose this legal battle every single time.

Monday, July 22:  The Fifth U.S. Circuit  Court of Appeals in New Orleans struck down an ordinance of a Dallas, Texas suburb that sought to bar landlords from renting to immigrants living in the U.S. without documentation.  Farmers Branch, Texas passed the ordinance in 2006, citing an unwelcome influx of undocumented immigrants, but court fees and legal battles since then have cost upward of $6 million dollars with some residents wondering if the fight is worth it.  The ruling by the court of appeals struck down the Texas suburb's ordinance, with the judges citing the Supreme Court's rationale that the law would infringe on the federal government's exclusive authority to dictate immigration policy.  The appeals court additionally raised concern as to how the ordinance would be enforced and upheld. 

Tuesday, July 23:  The Fourth U.S. District Court of Appeals in Virginia struck down a South Carolina law that would have made it a crime for illegal immigrants to "shelter" themselves from detection and a crime for anyone participating in the sheltering.  The Fourth U.S. District Court of Appeals ruled the South Carolina law was pre-empted by federal law and was therefore unconstitutional.  The court also expressed concern as to how the law would have been enforced and carried out. 

Friday, July 26:  The Third U.S. Circuit Court of Appeals in Philadelphia struck down a small Pennsylvania town's ordinance that would have denied permits to businesses that hire people in the country illegally and fined landlords who rent to them.  Like the previous cases, the Third U.S. Circuit of Appeals found the Pennsylvania town's law was pre-empted by federal immigration law and raised issue with how the ordinance would have been enforced.

There is a clear pattern at work in all of these cases and the Supreme Court gave warning to the states when they ruled on S.B. 1070.  Federal authority with regard to immigration policy will always usurp state attempts to regulate immigration.  I fully understand the concerns with those who believe states should have the right to govern themselves, however, we are a nation of laws and according the the Constitution the federal government's authority as it pertains to immigration is exclusive.  States are free to continue writing their own immigration laws, but they will undoubtedly meet the same fate as the cases above.  As always, if you have any comments or opinions please feel free to share!