Arizona's new immigration law vs. existing federal law
How does Arizona's new immigration law, SB 1070, differ from existing federal law? Does SB 1070 violate the Supremacy Clause of the U.S. Constitution? How?
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Teri W.
Board Certified Civil Trial Lawyer
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It differs in many respects - it's an entirely separate issue. Federal law defines the standards for legal immigration. Among other things, the Arizona law grants police the power - and obligation - to determine the immigration status of anyone who they have a "reasonable suspicion" of being an illegal immigrant (meaning you look or sound or have a name like you might be from somewhere else) during "any lawful contact" with that person (meaning any time it would be lawful for the police to talk to you - i.e any time they feel like it.) Can you say "show me your papers?"
It also makes it unlawful to house or transport someone who is an illegal immigrant, and purports to grant people a private cause of action (though not a right to damages) against any state agency that doesn't determine immigration status. The "penalty" for the state agency that violates the law is that it might be required to pay a fine to the state. Yeah, that makes sense.
It's a Constitutional violation in several ways, not that anyone notices that any more, but it's not a problem as far as superceding federal law. It's also one of the most spectacularly bad ideas I've heard in a while - which is saying something considering what's coming out of Washington these days. A gigantic waste of AZ taxpayer money that won't begin to fix the "illegal immigration problem" but will create a terrible environment for a lot of legal immigrants and citizens.
Doug L.
Lambert Consulting
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The law of the land is only being upheld not superseded so no violations exist. Challenges will be laughed out of court. In fact this case will go no where in a hurry. If any of these ambulance chasers thought it would you would have heard about the "Corporate Controlled Media," the "Hatemongers," the "Fear-mongers," and the "Racist piling on by now!
A nation without borders is not a nation but a state in collapse.
Paul J.
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The power to regulate immigration is unquestionably exclusively a federal power. However, it does not follow that all state regulations touching on aliens are preempted. "Only if the state statute is in fact a 'regulation of immigration,' i.e., 'a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain' [De Canas v. Bica (1976) 424 U.S. 351, 355], is preemption structural and automatic. Otherwise, the usual rules of statutory preemption analysis apply; state law will be displaced only when affirmative congressional action compels the conclusion it must be." (In re Jose C. (2009) 45 Cal.4th 534, 550.)
Under Arizona's new law (SB 1070), state and local law enforcement--whenever making a lawful stop, detention, or arrest of a person to enforce another state or local law--must make a reasonable attempt to determine the person's immigration status where "reasonable suspicion exists that the person is unlawfully present in the country." Further, anyone arrested cannot be released until his or her immigration status is determined and verified with the federal government
Thus, SB 1070 requires that Arizona's state and local law enforcement officers make a reasonable attempt to determine the immigration status of everyone whom they stop, detain, or arrest.
A person is presumed by SB 1070 to be lawfully present in the country if the person provides to law enforcement (1) a valid Arizona driver's license or nonoperating identification license, (2) a valid tribal identification, or (3) a valid United States, state, or local government-issued identification that requires lawful presence before issuance.
Thus, SB 1070 provides the state and local officers play a key role in the determination as to who should remain in the country, and who should not. If the officers see the person has any of these three ID's, they determine s/he should remain. Moreover, SB 1070 makes possession of any of the three ID's a condition under which a legal entrant may remain, so that SB 1070 appears to be preempted by federal immigration law. (De Canas v. Bica (supra) 424 U.S. 351, 355.
