If nothing else, the state of Arizona has smoked out the Obama administration.
To make the case that the Arizona immigration law conflicts with, and therefore is preempted by, federal law, the Justice Department has to make an extraordinary claim — that the federal laws as written don’t matter so much.
The drafters of the Arizona statute, S.B. 1070, were careful to mimic specific federal laws, but that’s not good enough. The state’s law would pass constitutional muster only if it tracked exactly with the executive’s enforcement priorities. As the suit puts it, “S.B. 1070’s mandatory enforcement scheme will conflict with and undermine the federal government’s careful balance of immigration enforcement priorities and objectives.”
In other words, such mandatory enforcement of the law conflicts with the executive’s discretionary enforcement of the law. If Arizona’s statute is in keeping with the letter of the laws as passed by Congress, so what? The executive can selectively pick and choose which elements of those laws to honor, and then on that basis quash state statues even if they mirror the handiwork of Congress.
It’s as if Congress is merely an advisory body in this area, and the administration wants to lift the power over immigration policy out of Article 1 of the Constitution and deposit it in Article 2. The administration is forced into this sweeping argument out of its desperation to overturn the Arizona law and its limited grounds to do so on any common-sense basis.
The courts have upheld the ability of state law enforcement to check on a person’s immigration status, ask for his documents, and confirm his status with the federal government. And it’s simply not the case that any state statute regarding immigration is preempted by federal law. In 1976, the Supreme Court unanimously upheld a California law prohibiting employers from hiring illegal aliens against a preemption challenge.