There is a distinct difference between whether a law is constitutional or whether it creates good policy. I intend to discuss only the former in relation to Arizona’s Immigration law which became law in early 2010 (http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf). In this attorney’s opinion, the law is constitutional.
Overall, there seems to be two primary constitutional objections being made against the Bill. The first flows from the “Preemption Doctrine” and the second is founded in “Equal Protection.” The Equal Protection concern arises out of the clause in the Bill which permits AZ police officers to stop and detain anyone who they have a reasonable suspicion is in the country illegally. I will discuss each of these constitutional issues in turn.
Preemption is derived from the Supremacy Clause in Article IV, clause 2 of the Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; … ” There are two primary takeaways from this clause for purposes of our discussion. First, a State generally cannot overturn or exempt itself from Federal Law (absent express Congressional approval). Second, Federal Law trumps and invalidates state law in three situations. (1) Express preemption: where the federal government passes a law which specifically includes language that preempts and repeals any state law, this will generally invalidate any such state laws. ; (2) field preemption: even in the absence of an express preemption, a court may say that a state law is invalid if it promulgates policy in an area that is traditionally reserved to the federal government; (3) conflict preemption, where it is impossible to comply with both federal and state regulations on a certain subject, the state law is generally trashed (this category is further divided into actual and obstacle conflicts — but those are not relevant to the AZ law, in my opinion).
Because the federal government has not expressly preempted the AZ law with its own legislation, express preemption is out of the question. Similarly, no obstacle or conflict preemption appears to exist. Consequently, field preemption is the most viable way to attack the Bill — and that’s precisely what opponents of the legislation have done. Opponents of the Bill successfully argued to a local federal district court in AZ that the federal government, as the government for the nation as a whole, implicitly controls the field of immigration law and policy. Specifically, the AZ law has the operative effect of undermining the federal government’s objective and policies in relation to immigration policy. To give specific weight to this finding, the district court ably pointed out that the federal government has created a prohibition in the United States Code against forging citizenship or residency documentation for the purpose of obtaining a job in the U.S. As such, the court reasoned that because the federal government has made such prohibitions, it intends to control the entire field of immigration policy (see page 26):
While this decision has been appealed, and will almost certainly be appealed again to the Supreme Court, its analysis is wrong. It’s an exercise in non-sequitur logic to infer that because the Federal Government has made it illegal to forge citizenship documents, it intends to control all policies regarding immigration. In other words, it’s a stretch to presume that singular instances of federal control translate into the Federal Government’s monopoly on immigration law. There simply needs to be a greater showing of intent to control the field by the Federal Government.
Furthermore, AZ immigration law has not created any new policy on immigration. Under Federal Law, it is illegal to be in the U.S. without obtaining the appropriate documentation and meeting the requisite citizenship requirements. AZ is simply stopping those individuals who they believe to be here illegally and handing them over to the federal government so that they may be dealt with. In essence, the AZ law has codified federal law as state law, wherein AZ is simply enforcing federal law at the local level. AZ has not promulgated any new policy which undermines the federal government’s ability to legislate in the immigration field. Indeed, the federal congress is certainly free to pass an expansive immigration bill which expressly preempts AZ’s law. Instead, likely for political reasons, opponents have chosen not to go through the normal channels of democracy and instead taken their fight to courts.
The 14th Amendment’s Equal Protection Clause states that “No State shall…deny to any person within its jurisdiction the equal protection of the laws.” To successfully challenge in federal court that you’ve been subjected to a violation of the Equal Protection Clause, you must have “standing.” In other words, you must be party who has a (1) concrete injury that is (2) fairly traceable to a specific action — and it is an injury which the court can (3) redress (through equitable relief or damages).
Opponents of the Bill have said that the law will result in racial profiling. Specifically, that the provision permitting officers to stop individuals based on a “reasonable suspicion” will result in more individuals of Hispanic ancestry being stopped and questioned — and that this violates Equal Protection because it is racially discriminatory.
Unfortunately, because lawsuits enjoined this provision of the Bill before it took effect, no individual can challenge this law as racially discriminatory because nobody has “standing.” But, for the sake of argument, let’s assume that this provision of the Bill took effect and an individual of Hispanic heritage was stopped and questioned about whether he or she was in the country legally. It turns out that such individual was in the country lawfully and sues, alleging that he or she was stopped solely by reason of being Hispanic, and that it constituted race discrimination in violation of Equal Protection.
To win, this person is going to have to show that this discrimination on the basis of race was intentional — that it was purposeful discrimination. Here is where problems would arise. The Bill textually says that any stops cannot be based on perceived ethnicities. And because the Bill is facially neutral as to race, a challenger would have to look into something like the legislative history and pull examples of how the AZ lawmakers intended this to apply disproportionately to Hispanics or people of a particular ethnicity, and that the Bill has had a adverse, disparate impact upon a particular ethnicity in comparison to other ethnicity. In other words, it would have to be shown that this affects one ethnicity more than another, and that AZ lawmakers were aware of this. At this stage in the game, nothing in the legislative history proves this, and the Bill never had time to take effect to allow for any sort of statistical showing which would reflect one ethnicity is disparately impacted in comparison to another.
But, in keeping with our assumption, let’s assume a challenger can make this showing. A Federal court would apply the “strict scrutiny” standard of review and say that although a law is racially discriminatory against one ethnicity, it will be upheld if the government has a “compelling interest” in passing the law. Though dicey, AZ has a good chance to meet this burden. AZ could simply point out that the law was passed in response to a rapid rise in crime. It could also make crime links by pointing out that Phoenix has the 2nd most kidnappings in the world — trailing only Mexico City. In short, the compelling governmental interest AZ could point to is that the Bill is a direct response to a rise in crime and violence, and although it may have effectuate a disparate impact, it is nonetheless justifiable.
So, in sum, an Equal Protection challenge probably would not work. First, nobody has “standing” to challenge on that ground. Second, there has yet to be a showing of purposeful discrimination. Third, assuming steps one and two are met, AZ could convince a federal court that this law meets “strict scrutiny” because it has a compelling interest in stopping crime.