When SB 1070 passed, I began pondering ways in which it would be challenged in federal court.  I dreamed up some fairly specious arguments for an as-applied challenge with respect to the Equal Protection clause of the 14th Amendment.  But as I’m not a constitutional rights lawyer (I only try to play one on the internet), I didn’t know about the fairly substantial claim of preemption under the Supremacy Clause that could be applied in this case, which is exactly what the Department of Justice cited in its brief today, filing for a preliminary injunction against SB 1070 from taking effect.

The argument is fairly compelling, and is based like I mentioned, on a legal doctrine called federal preemption, which is founded in what is typically referred to as the Supremacy Clause (Article VI of the Constitution), which states:

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.

The concept of federal preemption basically boils down to the fact the federal law is superior to state law (where constitutional) and any laws made by the federal government can effectively nullify, or preempt, a state law.  There’s a few ways this can occur.  One is express preemption, where Congress explicitly overrides state laws.  Then there’s implied preemption, which can take two forms.  The first is conflict preemption, in which a state law is in direct conflict with a federal law.  The second is field preemption, where the laws made by the federal government are so pervasive as to occupy the entire field of law, and leave no room for state supplementation.

The key application with SB 1070 is mostly field preemption, but also some conflict preemption was applied in the brief.  Essentially the federal government’s case is that enforcing immigration and naturalization is clearly one of the express powers of the federal government (Article I, Section 8: “To establish a uniform rule of naturalization”), and the federal government has acted substantially in legislating this authority (Immigration and Naturalization Act) to provide a uniform naturalization procedure and enforcement, which leaves no room for state supplementation.

There is ample precedent for this type of preemption, and even for this specific issue.  I found myself confused that I had entered a time warp when reading Justice Black’s opinion in Hines v. Davidowitz (1941), in which the main issue was the constitutionality of a Pennsylvania immigration law after Congress had passed its first substantial federal immigration act:

Having the constitutional authority so to do, [Congress] has provided a standard for alien registration in a single integrated and all- embracing system in order to obtain the information deemed to be desirable in connection with aliens. When it made this addition to its uniform naturalization and immigration laws, it plainly manifested a purpose to do so in such a way as to protect the personal liberties of law-abiding aliens through one uniform national registration system, and to leave them free from the possibility of inquisitorial practices and police surveillance that might not only affect our international relations but might also generate the very disloyalty which the law has intended guarding against. Under these circumstances, the Pennsylvania Act cannot be enforced.

It’s clear that SB 1070 can be similarly ruled unconstitutional on similar grounds.

What’s more, the specific intent of the state law was to “do something” in a perceived absence of federal action on the issue, which implies clear intent to supplant federal immigration policy with specific state priorities, namely a policy of “attrition through enforcement.”  This in essence, obstructs the execution of immigration policy by the federal government, which on its own allows for nullification via preemption.

Lastly, the ramifications of SB 1070 have larger impacts on US foreign relations, which is clearly outside the scope of the jurisdiction of Arizona state law, and which the federal government enjoys plenary control.

Overall, it appears the federal government has a solid case for overturning SB 1070, and since likelihood of success is a factor in granting a preliminary injunction, it seems probable that this complaint will succeed.

This entry was posted on Wednesday, July 7th, 2010 at 1:06 am and is filed under Lots of Pulp. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.