Apr 23 2012

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SCOTUS Considers Immigration

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Round II

This week the Supreme Court will hear argument in Arizona v. United States, the case that will determine the constitutionality of  Arizona’s 2010 law regarding illegal immigrants, which has been at the center of a heated battle for more than a year.

It is also the second time this term – indeed the second time in a month – that SCOTUS has taken up controversial legislation whose legality is rooted in the core, enumerated powers of the Constitution.

And the players from that first case – Obamacare – will have a rematch, with Donald Verrilli arguing again for the government as Solicitor General and Paul Clement arguing, this time, on behalf of the state of Arizona.

Verrilli will argue that the government’s case is rooted in clear and specific enumerated powers of the Constitution.  Article VIII  provides the federal government with responsibility for immigration policy.

“To establish an uniform Rule of Naturalization.”

Further, Verrilli will argue that as the federal government has established national immigration laws, the Arizona law runs afoul of Article VI Section II of the Constitution, the “supremacy clause”:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Verrilli’s argument here is found in a doctrine of “pre-emption, rooted in the case law assembled since the founding of the Republic, pertaining to the tension between the federal and state law.

This “pre-emption” doctrine affirms that states cannot pass laws that undermine the goals of the United States, as expressed under the federal government’s enumerated powers, and in such cases that do arise, federal law remains supreme – or “pre-empts” the state law.

Thus, the Arizona law is effectively pre-empted by existing federal law.

Clement, speaking for Arizona, will take a different tack.

He will argue that the Arizona law closely parallels federal immigration statutes, which implicitly avoids any possibility of pre-emption. Clement will also argue that under the separation of powers, states have an inherent right to enforce federal law, indeed, voluntary state efforts to enforce federal law are the norm.

Moreover, Clement will note that it was the Obama administration brought the suit against Arizona – and the charge of preemption, despite the fact that Congress, not the Executive branch, has responsibility for decisions involving preemption. And indeed, on matters of immigration and other domestic policies, Congress has lauded state-federal cooperation.

As Clement’s brief states,

“…Congress, far from preempting the field or prohibiting such complementary state efforts, has affirmatively encouraged such cooperative law enforcement and expressly preempted state laws that would prevent state officers from communicating with federal officers.”

Virrilli will likely retort that whatever merit the Court finds in Clement’s argument, that the Arizona immigration law, has impacts far beyond immigration to include federal responsibility in the areas of foreign policy, national security, law enforcement and humanitarian considerations.

For instance, what would be the unintended consequences of robust implementation of Arizona’s law if individuals detained by the laws requirements were subject to refugee or asylum considerations, that would necessarily involve other sovereign powers?

So, where is the line?

SCOTUS will have its work cut out for it on this  case- much more so than on healthcare which was far clearer constitutionally.

But what of the origins of this case as a matter of national policy?

Consider this posit.

If the national law being mimicked at the state level was the Voting Rights Act, instead of the national immigration law, does anyone believe that federal government would sue a state for creating a parallel state law to compliment enforcement?

 That tells you all you need to know about how the Obama administration regards illegal immigration.

Now SCOTUS gets to decide.

















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