Wrong issue at hand

The ability of states to enact and enforce their own immigration laws represents one of the most current and controversial issues in national government, as evidenced by the fact that the Supreme Court heard arguments on Arizona’s S.B. 1070 this week. Litigation over the various state immigration laws exemplify federalism issues since the primary debate is whether states are preempted from enacting such laws due to federal law governing immigration. While I agree with the notion that the federal government is in charge of immigration, I think portions of these state laws should be upheld since they are enacting laws to enforce current federal immigration laws, rather than creating new immigration laws.

The portion of S.B. 1070 requiring Arizona state police officers to check the immigration status of those arrested and detained seems reasonable. Since Arizona faces one of the highest populations of illegal immigrants, it makes sense that the state legislature felt the need to create laws to combat that problem. It especially makes sense that Arizona has an interest in checking if those committing crimes, which would lead to them being arrested and detained, are illegally in the United States. Requiring police officers to check the status of arrestees and then notifying the federal authorities does not seem to overstep any boundary since the police officers are not then taking matters into their own hands and deciding to deport those immigrants. Arizona would still be respecting federal law and congressional authority over immigration by turning over those found to be unlawfully in the United States. One could even argue that they are assisting the federal government in enforcing federal law, which should be encouraged.

This portion of the law becomes more difficult when considering the fact that the police officers choosing to confirm the citizenship status of the arrestee is to do so when they have a “reasonable suspicion” that the person is unlawfully in the United States. One of the reasons state immigration laws are criticized by many relate to the proposition that they encourage racial profiling. Many protest the Arizona law arguing this would lead to racial and ethnic profiling because Arizona police officers would use being of Hispanic race or ethnicity as “reasonable suspicion” since most illegal immigrants in Arizona are from Mexico. They argue S.B. 1070 encourages racial profiling, a known problem in the United States justice system needing change. However, racial profiling has nothing to do with an argument based on federal preemption. Racial profiling has long led to many problems, but would not be a reason to prohibit states from enacting immigration laws because the Constitution promulgates power over immigration to Congress. The issue of racial profiling would need to be argued under other theories, which do not relate to the separation of federal and state powers. In fact, the Supreme Court did not allow any of those types of arguments when hearing the Arizona case.

The arrest and detain portion of S.B. 1070 seems constitutional under federal preemption theories. Nonetheless, the more controversial portions of S.B. 1070, such as making it a state crime to seek work if unlawfully in the country, along with the racial profiling issue may be stricken by the Supreme Court, but not due to federal preemption.