Guest post by Professor Angela Banks
Arizona’s SB 1070 jeopardizes the existence of nationally uniform immigration laws and policies. The Supreme Court has the opportunity to prevent the balkanization of immigration law and policy in the United States by holding that federal law preempts SB 1070.
The Supremacy Clause of the United States Constitution states that the Constitution and federal law made pursuant to the Constitution are the supreme law of the land. If there is a conflict between federal law and state law, the federal law controls because it is supreme and the state law is invalidated. To determine if federal law preempts state law courts determine whether or not the state law interferes with or is contrary to the federal law.
In 1889, the Supreme Court held that the power to regulate immigration is a federal power. The Court’s decision was based on the idea that regulating immigration is related to foreign affairs. In immigration, as in foreign affairs, it is important that the United States speak with one voice. SB 1070 introduces an additional voice by creating enforcement priorities that differ from those created by federal immigration authorities, and by tolerating enforcement strategies disavowed by federal immigration authorities. These enforcement priorities and strategies interfere with or conflict with federal immigration law and policy.
The purpose of SB 1070 is “to discourage and deter the entry, presence, and economic activity of noncitizens who are unlawfully present.” This creates an enforcement priority that differs from federal immigration enforcement priorities. Immigration and Customs Enforcement (“ICE”) Director John Morton has stated that ICE only has the resources to deport approximately 400,000 noncitizens a year. ICE has prioritized unlawfully present noncitizens who have been convicted of serious crimes. Arizona’s broader enforcement priority creates new burdens on federal immigration resources and redirects federal agency resources away from federally created enforcement priorities.
SB 1070 empowers sheriffs and police to check the immigration status of individuals in certain contexts when the officer has a reasonable suspicion the individual is a noncitizen and is unlawfully present. Despite a provision stating that officers “may not consider race, color, or national origin . . . except to the extent permitted by the United States or Arizona Constitution,” race and ethnicity will likely play a role in formulating reasonable suspicion. First, in U.S. v. Brignoni-Ponce (1975), the Supreme Court held that “Mexican appearance” can be one of several factors used to establish reasonable suspicion of unlawful presence. Second, racial profiling has been a feature of immigration enforcement in Arizona. The Department of Justice recently concluded that the Maricopa County Sheriff’s Office (“MCSO”) engaged in pervasive and systematic racial profiling. Latino drivers were four to nine times more likely to be subject to a traffic stop than similarly situated non-Latino drivers. This enforcement strategy impacts citizens, green card holders, and unlawfully present non-citizens alike.
One potential consequence of racial profiling is creating a hostile context of reception for noncitizens. Social science research indicates that immigrants’ social, political, and economic environment plays a role in shaping their decision to naturalize. Immigrants who find their environment welcoming are more likely to naturalize than immigrants who find their environment hostile. The creation of a hostile environment undermines federal immigration policy to encourage eligible immigrants to naturalize and become citizens.
A tension exists between SB 1070’s enforcement priorities and strategies and those of the federal government. This tension prevents the United States from having nationally uniform immigration laws and policies. This situation can be rectified if the Court reasserts federal supremacy in immigration enforcement and concludes that federal law preempts SB 1070.
Angela M. Banks is an associate professor at William & Mary School of Law. Her research interests include immigration, international law, and human rights.
A video explaining the legal issues before the Court in United States v Arizona is available here. Banks’ scholarship is available here.