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Monday, March 05, 2012

What's Wrong with Helping? Thoughts on SB1070 and State Immigration Enforcement, Part 1

This month, I'm going to blog on Arizona v. United States, Arizona's appeal of an injunction against some important parts of Arizona's famous immigration law. It is scheduled for argument on April 25. I have previously written, with some wonderful colleagues, about the law itself, and why it is unconstitutional. I want to begin by responding to an argument often made by SB1070 supporters that it is obvious, logically, that Congress wants state aid in carrying out its laws. For example, Kris Kobach, quoting Learned Hand in a Prohibition case, argued that “it would be unreasonable to suppose that [the federal government's] purpose was to deny itself any help that the state may allow.” Some specific federal statutes, in particular INA 287(g) and 287(g)(10), do unquestionably involve the states in immigration enforcement and I'll explain in an upcoming post why they do not help Arizona's position. But I want to address the idea at the general level, logically, Congress of course would want state assistance in enforcing immigration laws, including through criminal prosecutions in state courts.  Because free help seems good, the argument has some intuitive appeal.  But it is wrong.

The first problem with this proposition comes from the Judiciary Act of 1789.

Many of the federal laws the states have allegedly been invited to help enforce are criminal laws. In 1789, Congress laid down a rule still in effect: States have concurrent jurisdiction over federal civil causes of action, but federal courts generally have exclusive jurisdiction over criminal cases. Today, 18 USC 3231 gives "the district courts . . . original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." Wisely or not, Congress has not asked states to help carry out federal criminal law by hearing cases in state court.

While 3231 makes clear that states can legislate under whatever power they may have, even in areas covered by federal criminal law, it "was intended to leave with the state court, unimpaired, the same jurisdiction over the act that it would have had if Congress had not passed an act on the subject." Sexton v. CA, 189 U.S. 319 (1903). If the states have the power to regulate independently of what the federal government does, fine, but Sexton makes clear that Congress enacting a criminal statute does not automatically constitute a grant legislative power to the states.

There is a larger problem.  An implicit assumption in the pro-Arizona argument is that more enforcement is better. In some contexts, that is right. Until we reach a point which no free society has approached, the more rape, robbery and murder investigators the better; full enforcement of laws against those acts would be wonderful. But is the same true of tax, traffic, liquor, and other regulatory regimes? As MPC co-author Louis B. Schwartz wrote: “[t]he paradoxical fact is that arrest, conviction, and punishment of every criminal would be a catastrophe. Hardly one of us would escape, for we have all at one time or another committed acts that the law regards as serious offenses.” [Bennett Capers discusses this gem in a fine article.] The system designedly has some play in the joints, planned underenforcement of regulatory, malum prohibitum offenses.  Partly this is because full enforcement would be very costly, and partly because the alternative would mean living in a police state.

Whatever the merits of the principle that all laws (or all federal laws) should be enforced to the maximum possible degree, the Supreme Court has rejected it. For example: "The creation of a private right action raises issues beyond the mere consideration whether underlying primary conduct should be allowed or not, entailing, for example, a decision to permit enforcement without the check imposed by prosecutorial discretion." Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Indeed, the Court has recognized that "Congress legislates against a background assumption of prosecutorial discretion."

The thumb, then, is on the other side of the scale.  To win on the ground that Congress has invited state criminal prosecutions, Arizona is going to have to persuade the Court that in the immigration context Congress has reversed the tradition of keeping federal criminal decisionmaking in the hands of the federal authorities.


Posted by Jack Chin on March 5, 2012 at 09:38 PM | Permalink


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