Bennett Wisniewski, Attorney at Law (bwisniewski@hooyou.com)

The recent immigration law passed by Arizona’s Congress (AZ SB 1070) and signed by the governor is currently the subject of much controversy and debate in the media.  It is important to focus on this law and address the subject of whether or not the new legislation complies with standards set by constitutional law.  The relevant provision of Arizona’s law allows state law enforcement to look into the immigration status of any person "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States." After studying Arizona’s law, it can be concluded that it is vulnerable to legal challenges based on the doctrine of preemption and the equal protection clause of the 14th Amendment. 

Preemption by Federal Law

The doctrine of preemption can be subdivided into two categories – conflict preemption and field preemption.  Conflict preemption refers to the legal concept which dictates that when federal and state laws have conflicting provisions, the federal law overpowers or “preempts” the state law as mandated by the supremacy clause in Article VI of the U.S. Constitution.  Field preemption is a slightly different doctrine which simply states that if Congress is given the power to “occupy a specific field of law” then state action in that area must fail no matter how well it agrees with the federal action and policies.  Arizona’s new immigration law can easily be attacked using either conflict preemption or field preemption.

Although proponents of Arizona’s new law are quick to argue that the law simply codifies existing federal law on the state level and therefore there is no conflict between federal and state law, this proposition is not entirely true.  Federal immigration law circumscribes a specific role for state and local authorities.  Specifically 8 USC section 1252(c) declares that state officials my arrest and detain a person who 1) “is an alien illegally present in the United States” and 2) “has previously been convicted of a felony in the United States”

This provision clearly sets a specific limited role for local state enforcement but the Arizona law goes much further than this law allows.  In contrast, Arizona’s SB 1070 states, “A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.”  The key difference between the two laws is that Arizona’s law allows for arrest without a showing of a prior felony, as required by the federal law. Instead Arizona’s law only requires a showing that the person committed a public offense which makes the person removable from the United States.  Such a public offense that makes a person removable could be something well below the felony level such as being out of status and staying past an expired visa.  Therefore the two laws are in direct conflict and Arizona’s law should be preempted by federal immigration law.

In addition, Arizona’s law also fails when subjected to a field preemption analysis.  Congress has been given authority by Article I, Section 8 of the U.S. Constitution to "establish a uniform Rule of Naturalization . . . throughout the United States."  Therefore it is clear that the founding fathers intended that Congress occupy the field of immigration and naturalization law and hence Arizona’s new law could be found unconstitutional under a field preemption theory.

Equal Protection Clause of the 14th Amendment

If courts find the preemption argument unpersuasive, opponents of Arizona’s law can make a different constitutional argument based on the equal protection clause of the 14th amendment.  Under this constitutional provision, states are required to pass laws which apply to all people equally, regardless of race, gender, sexual orientation, or alienage. If a state law is found to be discriminatory toward a suspect class of people, they are subjected to strict scrutiny by the Supreme Court. 

In the case of Arizona’s law, a discriminatory impact is clear.  If police officers are required to examine a person’s immigration status whenever they have a “reasonable suspicion” that the person is here illegally, this inevitably leads to racial and ethnic profiling since this “reasonable suspicion” will only manifest itself if the person in question looks or speaks a certain way.  Anyone with a foreign sounding voice or a foreign look is far more likely to be questioned by police about immigration matters than white Americans with no accent.  This disproportionately affects all immigrants rather than only those who are out of status or illegal.  Given the discriminatory impact of this law, the Supreme Court will test its constitutionality by applying the strict scrutiny test.

Under strict scrutiny, a state law is found to be unconstitutional unless it “necessary” for attaining a “compelling government objective”. This is a very difficult standard to meet and most laws fail when subjected to strict scrutiny.  The Arizona law states that “there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona.”  Even if this interest is determined to be a “compelling government objective” it is doubtful that such a broad encompassing law will fulfill the constitutional requirement of being “necessary” to obtain this objective.  The objective is already obtained by federal immigration statutes which give the states specific circumscribed roles in immigration enforcement.  All other states in America are able to obtain this objective without granting local police the power to question anyone they find who they suspect might be in America illegally.  Therefore this law will not likely be viewed as “necessary” and will fail if subjected to strict scrutiny. 

Conclusion

It will be interesting to watch what happens when this law is challenged in court.  Odds are very good that it will be declared unconstitutional and repealed unless the courts decide to abandon precedent and alter current constitutional law.  However, the problems with America’s immigration system remain.  This example shows the importance of the federal government pursuing a permanent solution in the form of comprehensive immigration reform.  If President Obama and Congress fail to solve America’s immigration problems then states such as Arizona will take matters into their own hands and further unconstitutional legislation will be passed by the states in a misguided effort to solve the problem.  The solution can only be reached on the federal level and therefore we need our leaders in Washington to act now and pass comprehensive immigration reform.