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Immigration: State's rights or federal supremacy

By BY GINO TOZZI
May 1, 2012 at 12:01 a.m.

Gino Tozzi

The latest Supreme Court case is expected to cause waves in immigration policy and its enforcement by the national and state governments. If the court rules completely in favor of Arizona against the nation, states whose immigration policies are under injunction by federal courts will be allowed to enforce their immigration laws without impediment. If the court rules completely in favor of the nation against Arizona, states will have to reverse their new immigration policies. The likeliest outcome is somewhere in the middle with states being able to keep, more or less, their new immigration laws.

Last Wednesday, the Supreme Court appeared to favor the Arizona law complementing federal law when it comes to checking the immigration status of a person under police custody. This is not surprising, since there are several instances of states complementing the federal government through the federal mandate system. The only potential problem with this is the implementation of federal policy by the state not matching how the U.S. Congress intended it to be implemented. Nevertheless, the questioning of oral arguments by the justices shows they are skeptical of the legality of Arizona's ability to charge and convict an undocumented noncitizen of not having proper identification or seeking employment. Due to this turn of events, it appears likely that only some parts of the law will be allowed that previously were not (from U.S. 9th Circuit Appellate Court injunction).

The U.S. Congress still dominates the policy of naturalization and immigration as articulated in Article 1, Section 8, Clause 4 of the U.S. Constitution. The Obama Administration knows this, which is why they framed their argument on the overriding powers of Congress on immigration issues. That argument may not be enough, as many on the Court, mainly conservatives, have serious reservations about the legitimacy of their one dimensional argument. Another argument that could have had merit is a law being illegitimate when it increases the chances of racial profiling. This could happen when police stop those under reasonable suspicion to determine their immigration status; however, under questioning by Chief Justice John Roberts to determine whether racial profiling was part of the Administration's argument, U.S. Solicitor General Donald Verrilli said, "No." This means a violation of the equal protection clause in the 14th Amendment is not being used by the Obama Administration in their challenge to the Arizona law. And besides, the parts of the Arizona law that can be construed as discriminatory have been held up by the injunction.

This decision will immediately affect a number of other states who passed similar laws to Arizona. They went through the same motions as Arizona by passing more restrictive immigration laws with greater enforcement powers at the state level, only to see their new laws restricted by federal courts via injunctions. The issue may rest with the notion that states have a right to enforce the borders of the United States, as Justice Antonin Scalia argued. That argument also has support from a previous decision, as Roberts noted. These reasons make it more likely that Arizona will win and most injunctions will be reversed due to the supremacy of the Supreme Court over lower courts.

This decision could bring greater uniformity over immigration enforcement in the states. How is that possible? The national and state governments will know how the court will most likely treat any challenges to immigration law. If states know how the courts will react to challenges to their immigration laws, they will be better able to craft an immigration law that is on solid constitutional ground.

The national government, and primarily the Congress (because it is in their purview), will have to pass a comprehensive policy at some point soon. The fact that conflict between the national and state governments has reached this point is a clarion call for a national law that satisfies the concerns of most citizens and states. We have had this issue on our national agenda for several years by now, seven in total. President George W. Bush wanted to streamline the immigration process to make it easier for businesses and new immigrants to benefit from a track toward citizenship, while also immediately documenting these new immigrants. This was and is unpopular with conservatives who believe it goes against their principle of abiding by the law and going through the proper immigration process. They would argue that Bush's policy is akin to being rewarded for cutting in line.

As candidate for president, Barack Obama pledged reform, similar to Bush's, for our antiquated immigration policies. Four years later, he is still pledging this, but now for his second term. There is growing divisiveness on this issue with both sides attracting more followers on a daily basis. Since this is an election year, it is up to the voters to decide which candidate and vision for immigration reform will win out.

Gino Tozzi is a Lecturer of Political Science at the University of Houston-Victoria. Email him at tozzig@uhv.edu with any questions or comments.

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