September 24, 2016
Why U.S. v. Arizona Matters
Posted on Aug 6, 2010
Yes, This Was About More Than Police Encounters; It Was Also About Job Seekers
Congress has primarily exercised its supreme authority on immigration through laws aimed at employers, and minimally directed at employment seekers. Federal law prescribes a maze of mandates for employers to check identification and cross-check with numerous federal law enforcement and immigration control agencies. Bolton observed that the Congress (the institution in which Arizona’s McCain once led on this issue) purposefully and deliberately rejected immigration control measures which focus on job applicants. The job seeker’s only duty is to not lie if queried about citizenship status when applying for a job.
Put differently, the national decision of our elected legislators (and the Republican and Democratic presidents who have signed immigration legislation) has been that employers, not job seekers, should bear the burden of ensuring compliance with immigration policy in the workplace. Arizona’s legislators—even under the guise of states’ rights—are not at liberty to decide that Congress made the wrong decision and should have attacked the issue in a different way. It was a decision for Congress to make—or not make. Congress intended that it be done a specific way; not that it could be done one way in Arizona (and maybe another in New Mexico, or differently in Vermont).
Bolton’s opinion noted that in employment matters, state law typically occupies the field with little federal intrusion beyond certain specialized topics, such as labor relations or immigration control, where the federal government wields powers that must be uniform. Nonetheless, Bolton pointed out, Congress had deliberately chosen to focus criminal sanctions only on employers and not on job hunters. This choice was very much a quintessential application of the supremacy clause of the Constitution that makes federal law “the supreme law of the land.”
Square, Site wide
How Arizona Arrogantly and Unilaterally Jumped the Line of All Other Security and Law Enforcement Interests
Another offending flaw in SB 1070 that DOJ lawyers emphasized, and Bolton accepted, was the impact the law would have on federal law enforcement and immigration control agencies. DOJ filed with the district court affidavits from top law enforcement administrators of agencies like the Department of Homeland Security and the FBI in Arizona. The affidavits supported the DOJ argument that enforcement of SB 1070 would mean federal immigration and law enforcement personnel and computer systems would be burdened by the greatly increased stress of responding to a tsunami of immigration status inquiries from local Arizona law enforcement.
Those calls from the patrol car or from the booking area of a city jail in Arizona have to be answered and processed by someone. Federal employees of those agencies will have to respond in real time to give the information requested by officers in the midst of detentions and arrests.
On this argument Bolton’s analysis evoked visions of a stressed and frazzled DHS or customs agent placing “on hold” a call from a sky marshal seeking information about the immigration status of a passenger on a jet bound for the United States while she responded to a request for information from an officer detaining a driver of pickup truck filled with garden tools on a street in Arizona.
Arizona’s police officers would be demanding attention and thereby diminishing resources the federal government was trying to focus on more serious threats from outside our borders. Federal resources to meet that challenge would be reduced while tending to Arizona’s political hissy-fit over illegal immigration.
How a Dangerous Political Challenge Was Met and Is Being Rebuffed
At a fundamental level, SB 1070 was nothing more than a states’ rights power play by the Arizona legislators and governor. In retrospect, it may have been nothing more than a bluff, known by those who received legal advice before enactment to be unlikely to remain standing. Perhaps they surmised the federal government would not want to bring a challenge (or it would hurt the administration if it did so). Thankfully, DOJ called Arizona’s bluff.
The DOJ, led by Attorney General Eric Holder, and in particular the Civil Division legal team fielded by Assistant Attorney General Tony West, should be complimented for advancing a precise supremacy clause argument and winning a victory on grounds that would not heat up the rhetoric of racial and ethnic stereotyping. Judge Bolton should be commended for unblinkingly pointing out constitutional flaws written into the procedures enacted by SB 1070. Arizona’s political vigilantes rode into a legal box canyon they devised through using a combustible mix of political and legal bluster; the DOJ rounded them up and restored constitutional law and order.
How the Lawsuit Can Be a Model for Defusing Incipient States’ Rights Rebellions That Challenge the Federal Government
President Obama has famously proclaimed admiration for certain of his Republican predecessors. Two of them come to mind in crises generated by tension between federal government prerogatives and “states’ rights.” One is, of course, the 19th century president from Illinois who fought to hold a federal government together in the face of a secessionist challenge by 13 Southern states. The other was a 20th century president, Dwight Eisenhower, who sent troops to Little Rock to enforce orders of federal courts when it was unpopular to do so among Southern states and other states now identified as “red.”
Americans should keep in mind that in the past, disgruntled states—not unlike Arizona in today’s immigration kerfuffle—insisted on their “rights” even when those rights conflicted with federal law. Then, as now, states wanted to enforce (or not enforce) laws of their choosing without regard to their duty to obey the Constitution and its allocation of governmental powers. Those states’ rights tensions with the federal government—as ugly as their history has been—are surfacing in the American polity now in virulent forms.
Hopefully, President Obama will consider some of that historical perspective as he decides to fight or acquiesce to future challenges of the kind embodied by the passage of Arizona SB 1070. As a student of Doris Kearns Goodwin’s writings on Lincoln, he should remember Lincoln’s genius was not simply in assembling a “team of rivals.” It was in assembling them, discerning which team members gave the wisest and most courageous advice, and then encouraging that team member to provide leadership.
Obama may have found “his Grant” in a Cabinet of rivals—he already has honorific “general” rank, and his name is Eric Holder.
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