Last week, the State of California and several other states, filed a brief with the United States Supreme Court urging the Court to strike down Arizona’s immigration enforcement law, SB 1070. (California Amicus Brief) The Supreme Court is scheduled to hear oral arguments on the Obama Administration’s challenge to SB 1070 April 25th and in anticipation, dozens of interested parties, organizations, and even foreign governments have filed briefs both in support and opposition to the law. The other states joining California in the amicus brief are New York, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Oregon, Rhode Island, and Vermont.
The core of California’s objection to SB 1070 rests on the notion that through SB 1070, Arizona has impermissibly adopted its own removal policy — a power CA argues is “exclusively [a] federal function.” (CA Brief at 3) While states have no authority to remove (deport) illegal aliens (nor is the state of Arizona claiming such authority), California argues that the enforcement activities Arizona is encouraging through SB 1070 – the identification, apprehension, and detention of illegal aliens – are by definition part of the removal process. Thus, Arizona has adopted its own “removal policy.”
California then argues that Arizona’s removal policy, as embodied by SB 1070, is impermissible because it conflicts with the federal removal “scheme.” (Id.) Federal law, California asserts, has long recognized that immigration enforcement has “uniquely devastating effects” on “people who are otherwise law abiding and productive members of society.” (Id.) Describing SB 1070 an “overzealous and indiscriminate attempt” to enforce the law, California argues that Arizona’s law conflicts with “federal removal policy” in two ways. (CA Brief at 3, 9). First, California claims that SB 1070 requires state and local officers to engage in the arrest and detention of illegal aliens without any federal oversight. Second, California argues that SB 1070 supplants the Executive Branch’s discretion over the administration of the removal process and thus “interferes with the achievement of the federal priorities Congress has set.” (CA Brief at 3-4) California then concludes that because SB 1070 conflicts with this federal removal scheme, it is preempted by federal law.
Through this argument, however, California ignores the simple fact that nothing in SB 1070 supplants the authority of the federal government to decide whether to remove an illegal alien. To the contrary, SB 1070 merely requires Arizona officers to verify immigration status in certain circumstances and report it to the federal government. The law also creates state offenses that mirror already existing federal laws.
California’s argument also ignores that numerous federal statutes actually authorize and encourage local officers to identify, apprehend, and detain illegal aliens. For example, Section 1373(c) of the United States Code requires that the federal government respond to all local inquiries about immigration status. Section 1373(a)-(b) prohibits laws that interfere with the sharing of immigration data between local governments and the federal government. And, Section 1357(g)(10) provides that local law enforcement does not need to enter into an agreement with the federal government to cooperate in the enforcement of immigration laws. (See also INA § 287(g)(10))
In addition, California ignores that the Administration itself will soon require all jurisdictions – through the implementation of Secure Communities – to identify illegal aliens booked at jails (before conviction). And, through regulations, the Administration also requires that local jurisdictions detain illegal aliens if federal immigration officers place a hold on them (called a detainer). (See 8 C.F.R. 287.7(d))
Finally, California’s argument ignores a plethora of case law that confirms that state and local authorities have the inherent or general enforcement authority to assist in the enforcement of immigration laws. See e.g. United States v. Salinas-Calderon (10th Cir. 1982); United States v. Vasquez-Alvarez (10th Cir. 1999).
SB 1070 therefore does nothing more than further Congressional intent that local jurisdictions participate in the identification, apprehension, and detention of illegal aliens. Moreover, because Congress has encouraged, and in some cases required, local jurisdictions to engage in these activities, California cannot reasonably argue that they are equal to the removal of illegal aliens — a power Congress has reserved for the federal government.