Federal law vs. state law
The U.S. Supreme Court has consistently ruled that the federal government has the authority to regulate immigration, which it does primarily through the Immigration and Nationality Act. Under the 14th Amendment to the U.S. Constitution, states cannot, "deny to any person within its jurisdiction the equal protection of the laws." Over the years, the U.S. Supreme Court has ruled that unauthorized immigrants have a right to due process under the law, and that their children have a right to attend public schools. The court has repeatedly rejected attempts by states to pass laws that single out immigrants. Additionally, the Supremacy Clause of the U.S. Constitution is widely interpreted to mean federal law trumps state law. "Even assuming states have some inherent authority to enforce immigration law, federal law preempts inconsistent state law," said a 2004 Congressional Research Service report on the role of local law enforcement in enforcing immigration law.
However, a growing sense of frustration among state lawmakers is spawning a flurry of challenges to federal immigration authority. In 2010, state legislatures enacted a record number of laws and resolutions addressing immigration issues, according to the National Conference of State Legislatures (NCSL), which provides research to state lawmakers. In fact, every state in the nation with a Legislature meeting in regular session in 2010 considered laws related to immigration, the NCSL said. In all, more than 200 laws were enacted and more than 130 resolutions adopted. "As in previous years, law enforcement, identification/driver's licenses and employment remained the top issues addressed in state legislation related to immigrants," the NCSL reported. Many of these new laws address employer sanctions for hiring unauthorized workers and employee eligibility verification; set documentation and eligibility requirements for IDs and driver's licenses; and direct state law enforcement agencies to collaborate with federal immigration officers.
The most controversial of these conflict with the federal Immigration and Nationality Act. There is nothing to stop a local law enforcement officer from inquiring about the legal status of someone while that officer is enforcing state and local laws. But states are now proposing laws that require local law enforcement officers to identify unauthorized immigrants during routine stops and arrests based on their suspicion that the detainee might be in the country illegally. Under these proposals, the person stopped would be detained until their status was determined. The laws would also subject individual's to prosecution by the state for failing to carry proper identification, essentially criminalizing that conduct. These proposed statutes run counter to established immigration law. According to the 2004 Congressional Research Service report, "immigration law provides for both criminal punishments (e.g.: alien smuggling which is prosecuted in the courts) and civil violations (e.g.: lack of legal status, which may lead to removal through a separate administrative system). States have traditionally only been permitted to directly enforce the criminal provisions, whereas enforcement of the civil provisions has been viewed as a federal responsibility with states playing an incidental supporting role." In other words, it is not a crime to be in the country illegally (although it may lead to deportation), and the federal government is responsible for investigating the legality of an immigrant's presence in the country, not the local police. Critics of strict state immigration laws say local law enforcement officers are not trained to differentiate a person's legal status, and that state laws requiring status investigations based on "suspicion" will lead to rampant racial profiling. The constitutionality of state laws subjecting someone to criminal sanctions for failing to carry documents verifying their immigration status is also being questioned.
But a number of states, eager to reduce the number of unauthorized immigrants, are willing to test those limits. They argue the federal government is failing to control its borders, subjecting border states to the costs and dangers of illegal immigration. Supporters say tough state laws will help local police identify unauthorized immigrants and thin their numbers, while discouraging other unauthorized immigrants from coming to their state. Most notably, Arizona passed a law in 2010 that, among other provisions, requires police officers to question people they suspect are in the country without authorization and to verify their status with federal officials; makes it a state crime for failing to provide valid ID proving legal residence; and that exposes local governments to legal action by any citizen who thinks federal or state immigration law is not being enforced. Perhaps more than any other state, Arizona must cope with the human trafficking and drug smuggling associated with illegal border crossings. "We in Arizona have been more than patient waiting for Washington to act," Arizona Gov. Jan Brewer said after signing the law. "But decades of inaction and misguided policy have created a dangerous and unacceptable situation in Arizona."
The federal government challenged the Arizona laws as unconstitutional. President Obama said the laws, "undermine the basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe." Several months later a federal judge bolstered the Obama administration's position by ruling that many provisions in Arizona's law interfered with federal law and policy. "There is a substantial likelihood that officers will wrongfully arrest legal resident aliens," U.S. District Judge Susan Bolton wrote. "By enforcing this statute, Arizona would impose a 'distinct, unusual and extraordinary' burden on legal resident aliens that only the federal government has the authority to impose." The ruling put portions of the newly passed state law on hold, including those that: require local officers to determine the immigration status of individuals detained during lawful stops and suspected of being in the country illegally; require individuals to carry proof of legal status; prohibit unauthorized immigrants from applying for work; and permit an arrest without a warrant if there is probable cause the offense would make the person removable form the United States.
In her ruling, Judge Bolton cited a Supreme Court rulings and various interpretations of Congressional intent regarding immigration. Among them, that the the Supremacy Clause of the U.S. Constitution makes federal law the supreme law of the land, and that "Congress 'manifested a purpose to (regulate immigration) in such a way as to protect the personal liberties of law-abiding aliens through one uniform national...system and to leave them free from the possibility of inquisitorial practices and police surveillance.' " The order goes on to say, "the United States asserts, and this Court agrees, that 'the federal government has long rejected a system by which aliens' papers are routinely demanded and checked.' The Court finds that this requirement imposes an unacceptable burden on lawfully present aliens." Bolton also cites a federal appellate court ruling that found Congress intended for employers to be sanctioned for hiring unauthorized immigrants, while sparing unauthorized immigrants from sanctions for working or for seeking work. Arizona had argued that Congress had left the door open for states to impose civil or criminal sanctions against unauthorized immigrants who are working under false pretenses or who apply for work. In many instances, Bolton found federal laws already on the books that would preempt the state laws being proposed. She found that allowing enforcement of the state laws (particularly the mandatory status checks of every suspicious person stopped) would unduly burden federal immigration offices. In closing, Bolton wrote, "The Court by no means disregards Arizona's interest in controlling illegal immigration and addressing the concurrent problems with crime, including the trafficking of humans, drugs, guns, and money. Even though Arizona's interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws." Arizona is appealing the ruling.
The National Conference of State Legislatures reports that bills similar to Arizona's were introduced in six states last year (Illinois, Michigan, Minnesota, South Carolina, Pennsylvania and Rhode Island), although none were enacted. Similar legislative activity is expected in 2011, with Florida among those states considering new laws.
Lastly, at least two states are taking aim at the 14th Amendment's birth-right provision by considering laws to deny U.S. citizenship for children born to unauthorized immigrants. Supporters of the bills say the birth-right provision encourages unauthorized immigration. The bills, in Arizona and Indiana, are intended to get the U.S. Supreme Court to consider whether the Constitution does indeed grant automatic citizenship rights to those children. "The issue can be briefly described as a clash of interpretations over whether jus soli, an ancient concept that grants citizenship to those who are born within a territory, also extends to the 14th Amendment," according to an article in the Arizona Capital Times. The 14th Amendment, ratified in 1868, reads in part, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." It was ratified in response to a U.S. Supreme Court decision a decade earlier that prohibited slaves and their children from becoming citizens. Between March 2009 and March 2010, there were an estimated 350,000 children born in the U.S. to parents with at least one unauthorized parent, according to a Pew Hispanic Center report. In all, there are an estimated 5.5 million children of unauthorized immigrants living in the U.S., Pew estimates. Of those, "an estimated 4.5 million are U.S.-born; 1 million are foreign-born and therefore unauthorized," the report said. "The number of U.S.-born children has more than doubled from 2.1 million in 2000."