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Tuesday, July 27, 2010

"We're Here to Help": Another Constitutional Problem With Arizona's "Mirror Image" Immigration Enforcement Theory

Arizona's new immigration law, SB 1070, raises many issues, but one question that has been central to the litigation and much of the public policy discourse is whether states can pursue more aggressive immigration policies so long as they "mirror" federal law. In the Arizona context the principal scholarly (Kobach) and political (Gov. Brewer, Sen. Pearce) proponents have made this argument repeatedly, and it has been made in the current litigation as well. The argument has taken many forms: "federal enforcement of current federal law is inadequate, and we are just here to help," "what is the problem with more enforcement of the laws that 'you' (the federal government) has passed?," "SB 1070 was designed to 'mirror' federal law and provide 'cooperative' enforcement."

We have previously noted that the description of SB 1070 as a mirror of federal law is descriptively inaccurate. The crimes in the state bill do not simply repeat federal law, some are entirely new (e.g., those that punish workers, not employers), and even when they rely on a violation of a federal provision, they provide different punishments.  See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1617440 But now we see a more fundamental constitutional problem in this structure--one that has not been raised in the litigation but, if we are correct, would be fatal to the criminal provisions in the Arizona statute. The particular problem we see is the use of state criminal law to achieve solely federal ends.

While the principle of dual sovereignty recognizes that many things can be both state and federal crimes, that principle, says the Court, "will be found to relate only to cases where the act sought to be punished is one over which both sovereignties have jurisdiction. . . . [It] has no application where one of the governments has exclusive jurisdiction of the subject-matter, and therefore the exclusive power to punish.” Therefore, an "offense against the public justice of the United States" is "within the exclusive jurisdiction of the courts of the United States."  If, as the Court has said, immigration is an exclusively federal power, to the extent that a state crime punishes a non-citizen for the manner or status of immigration, it is a wrong, if at all, to the nation rather than any particular state.  It is precisely the embrace of federal law and powers, without an independent state basis for criminalization, that creates the problem. In other words, we believe the explicit theory on which SB 1070 is based is wrong; "We are just helping the Federal government" is a confession, not a defense. Cracked Mirror: SB1070 and Other State Regulation of Immigration Through Criminal Law.

This point is critical to the Arizona law, but also larger than Arizona: several states have passed new criminal laws intended to aide in federal immigration enforcement, and many additional such laws have been proposed. So, are we right?

Marc Miller & Jack Chin

Posted by Marc Miller on July 27, 2010 at 10:27 PM | Permalink


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Separate from that parallel is the claim that crime is disproportionately caused by the undocumented or illegal entrants, which is a harm to the State.

There's not really much evidence for this, though, and some against it. It's especially telling that, while proponents (such as the gov. of Arizona) of the Arizona law have been suggesting there is a crime spree in Arizona now, in fact crime is down pretty heavily.

Posted by: Matt | Jul 30, 2010 6:05:25 PM

Jack, thanks for the Fox cite. I'll have to check that out. It seems to me at first blush that one can -- with apologies for comparing human beings to money -- see illegal immigrants as similar to counterfeit money. The argument would be that "counterfeit" "citizens/residents" take jobs and services etc. that should "go to" legal residents (including immigrants), just as the fake money is being used to obtain goods wrongfully, harming both the seller (who gets fake money) and the holders of real money, as the value of real money is diluted by the presence of fake money.

Separate from that parallel is the claim that crime is disproportionately caused by the undocumented or illegal entrants, which is a harm to the State.

That said, I tentatively agree with the OP's point that "federal-only" harms are distinct from harms that affect both sovereigns in parallel.

Posted by: uncertain | Jul 30, 2010 5:21:04 PM

Thanks for the comments. Good old Charles Warren, coincidentally, a founder of the Immigration Restriction League. Vladimir, our point is less than that it is impossible for Congress to vest criminal jurisdiction over an exclusively federal offense in the states, than that they have not done so in the case of immigration. In the absence of federal legislation conferring jurisdiction (which is contemplated in Southern Railway, linked above, and I agree is possible), states have no inherent authority to legislate or prosecute for exclusively federal offenses.

Thomas, the counterfeiting question was the subject of Fox v. Ohio, 46 U.S. 410 (1847). We agree with the Court that states had concurrent jurisdiction, because passing bad paper has consequences in the state that are within the state's police power. In the context of immigration, the question is whether an undocumented non-citizen in Arizona who, say, does not possess a federal certificate of alien registration, or drives through Arizona for the purpose of going to Denver, has consequences in Arizona that Arizona has the power to prosecute under the police power. I think the answer is no.

Posted by: Jack | Jul 28, 2010 1:22:34 AM

Why isn't immigration like control of the federal currency? The constitution is clear about Congressional power over that, and yet no one doubts that states have the power to punish those who counterfeit the federal currency.

Posted by: Thomas | Jul 28, 2010 12:31:29 AM

I think it's an incredibly vexed question, and I don't know how the modern authority lines up. For a glimpse of the complexity, over time, check out Charles Warren's classic article, Federal Criminal Laws and the State Courts, 38 Harv. L. Rev 545 (1925).

I'm also wondering, could Arizona enforce federal laws even without passing its own criminal statute? The idea behind Tennessee v. Davis (1880) is that federal and state governments form a single, indivisible sovereign, and that there is no sharp division between the two. Perhaps that's been superceded by more modern authorities; perhaps there is something special about immigration law; or perhaps there is something in the federal immigration statutes that divests states of authority.

I don't have an answer. I simply think it's a very hard question! Thanks for raising it.

Warren's article can be found here.


Posted by: Vladimir | Jul 27, 2010 11:57:48 PM

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