States regularly assist the federal government in making sure federal laws and regulations in a whole host of areas are followed. The feds generally welcome the support. But when it comes to immigration, the Obama administration has signaled opposition to states that wish to provide assistance. The administration argues that states are preempted from getting involved in immigration policy, but this argument is overbroad and ultimately incorrect.
Under the U.S. Constitution, states are preempted from unilaterally admitting an alien into the country and from unilaterally deporting an alien from the country, as Congress has the power to establish a "uniform Rule of Naturalization." States also cannot act to frustrate the goals of Congress. Of course, no state is attempting to independently admit or deport anyone, and Arizona is not attempting to alter or undermine federal law. Instead, Arizona is attempting to assist the federal government in carrying out its duties under the Immigration and Naturalization Act. Considering the limited law enforcement man power and the significant number of immigration violators in our country, one would think that the White House would welcome the help.
But that assumes the White House actually wants the nation's immigration laws enforced. When it comes to immigration policy, the Obama administration has made amnesty, rather than enforcement of existing immigration laws, its goal. The same can be said of the preceding administration under President Bush. It appears that those rallying against Arizona are less concerned about preemption issues than they are about the possibility that the feds will end up having to do their jobs of removing illegal aliens and fining businesses that violate the law. Interestingly, sanctuary cities – jurisdictions that actually do frustrate the enforcement of federal immigration law – are embraced by the White House and are not the target of Department of Justice lawsuits. This seems to indicate the Arizona lawsuit is more political than anything else. It is also evidence that the White House wants to make non-enforcement of immigration laws the norm.
Like many states, Arizona is experiencing the fallout of the federal government's failure to sufficiently enforce immigration laws. At least 25 states may follow Arizona's lead. This is in addition to the many other states that have already passed legislation to make their jurisdictions less welcoming to those who violate immigration laws, both illegal aliens and their employers. It will be up to the Supreme Court to clarify the scope of preemption in immigration matters, but Arizona has a greater likelihood of success than most media outlets are predicting.
Cross-posted at Jurist, a web-based legal news and real-time legal research service based at the University of Pittsburgh School of Law.