To what extent can a state enforce immigration policy, traditionally the province of the federal government? Wednesday morning, the Supreme Court of the United States heard oral argument (PDF) in Arizona v. United States, reviewing the decision of the Ninth Circuit finding four provisions of SB 1070 unconstitutional for being implicitly preempted by federal law in the field, blocking four provisions from being enforced:
- Section 3, creating a state law crime of being unlawfully present in the United States and failing to register with the federal government;
- Section 5, creating a state law crime of seeking work or working while not authorized to do so;
- Section 2, which requires state and local officers to verify the citizenship status of persons arrested, stopped or detained; and
- Section 6, which authorizes warrantless arrest of non-citizens believed to be removable.
So does America have one immigration policy, or can it have over 50 more? As former Secretary of State Madeline Albright and a bipartisan group of former foreign policy officials explained in an amicus brief:
Immigration policy has been part and parcel of U.S. foreign relations since the country’s founding. As this Court has recognized, the text, history, and structure of the Constitution require that the U.S. government speak with one voice on all issues of international relations. Consequently, the exclusivity of the national government’s power over foreign policy matters such as trade or war applies with full force to immigration policy, including the regulation of aliens crossing or within U.S. borders.
[...] Arizona’s S.B. 1070 illustrates the ways in which state immigration laws can interfere with and thereby harm the Nation’s foreign relations. It inherently undermines the exclusivity and uniformity of federal foreign relations power, threatens negative consequences for U.S. relations with other countries, and risks retaliation to U.S. citizens abroad.
Justice Kagan has recused herself from this matter; if the Court ties 4-4, the decision below blocking SB 1070′s enforcement will be upheld. And if you want the argument in a nutshell, here it goes from Solicitor General Donald Verrilli’s argument against SB 1070:
JUSTICE SOTOMAYOR: General, could you answer Justice Scalia’s earlier question to your adversary? He asked whether it would be the Government’s position that Arizona doesn’t have the power to exclude or remove — to exclude from its borders a person who’s here illegally.
GENERAL VERRILLI: That is our position, Your Honor. It is our position because the Constitution vests exclusive authority over immigration matters with the national government.
JUSTICE SCALIA: All that means, it gives authority over naturalization, which we’ve expanded to immigration. But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?
GENERAL VERRILLI: Your Honor, the Framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations. The national government, and not an individual State –
JUSTICE SCALIA: But it’s still up to the national government. Arizona is not trying to kick out anybody that the Federal government has not already said do not belong here. And the Constitution provides — even — even with respect to the Commerce Clause — “No State shall without the consent of Congress lay any imposts or duties on imports or exports except,” it says, “what may be absolutely necessary for executing its inspection laws.”
The Constitution recognizes that there is such a thing as State borders and the States can policetheir borders, even to the point of inspecting incoming shipments to exclude diseased material.
GENERAL VERRILLI: But they cannot do what Arizona is seeking to do here, Your Honor, which is to elevate one consideration above all others. Arizona is pursuing a policy that maximizes the apprehension of unlawfully present aliens so they can be jailed as criminals in Arizona unless the Federal Government agrees to direct its enforcement resources to remove the people that Arizona has identified.