Supreme Court to Rule on State Immigration Enforcement

The federal government has asked the 11th Circuit to review a district court’s decision not to enjoin an Alabama law that requires police to enforce federal immigration law. Among other things, the Alabama statute says police must inquire into someone’s immigration status if there is a “reasonable suspicion” that he or she is an undocumented immigrant. The Ninth Circuit disagreed when it enjoined the enforcement of Arizona’s S.B. 1070.  The Ninth Circuit said the statute impacted international relations, emphasizing the United States’ need to speak with one voice on foreign affairs.   The Supreme Court is expected to review the case in the coming Term.

The Constitution grants Congress the power to regulate immigration. Congress and the courts have given the states latitude in areas which are traditionally state concerns, such as business licensing or education, but states cannot  establish rules for when immigrants may stay in the country.  The boundaries of federalism are not as clear when it comes to the enforcement of federal immigration law.

Many states have recently passed laws testing these boundaries. The Supreme Court recently upheld an Arizona statute that revokes the licenses of businesses that employ undocumented immigrants, noting that Congress explicitly reserved the right for states to regulate the employment of immigrants through licensing laws. In the Alabama decision, Judge Marsha Blackburn went further and upheld the provisions which require police to enforce immigration law.  Judge Blackburn enjoined the provisions that established different penalties than federal law or criminalized conduct that Congress decided not to punish.

If the Supreme Court agrees with Judge Blackburn, many state police officers will be required to enforce federal law. If there is any reason to suspect the citizenship status of someone who has been arrested or just stopped by police, the laws leave police no discretion.  They must verify the person’s immigration status and detain him or her in the meantime.  The Arizona statute allow citizens to sue police if they do not comply, and Georgia has established an oversight board that includes an accused racist.

The federal government opened the door to these infringements of its soveriegnty through its inaction. After failed attempts at immigration reform, 287(g) and Secure Communities emerged as politically expedient measures to satisfy those constituencies that favor strict enforcement. Now those constituencies want police to root out immigrants and turn them over to immigration authorities, regardless of whether the federal government approves.

The Supreme Court will decide whether these laws are preempted by federal immigration law, a question that will likely turn on Congress’ intent.  As the Ninth Circuit noted, Congress established finely wrought procedures, through 287(g) and other laws, for police participation in immigration enforcement.  The dissenting judge pointed to a federal law that encourages states to “cooperate” in immigration enforcement and one that instructs federal authorities to share information.  If these statutes mean that states can engage in their own enforcement, why would Congress spell out detailed procedures to grant states such authority? Unlike the statute in Whiting, the Obama administration opposes laws like S.B. 1070, and President Obama should be held responsible for any lack of immigration enforcement, just as Congress is accountable for any lack of reform.