Immigration, Concurrent Powers, And Original Meaning: Why The Supreme Court Must Rule That Arizona's Law Is Constitutional

The United States Department of Justice filed a lawsuit against the state of Arizona in the U.S. District Court for the District of Arizona on July 6, 2010, asking that the law be declared invalid since it interferes with the immigration regulations "exclusively vested in the federal government." The Supreme Court has just announced that they will decide the Constitutionality of Arizona's anti-illegal immigration law S.B. 1070. The measure was lawfully passed by the Arizona legislature and signed into law by Governor Jan Brewer. Instead of recognizing the federal inability to enforce its own laws alone, the Justice Department's lawyers referenced the notion of federal preemption and stated that, "The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country." The fact of the matter is that Arizona's law should be seen as in line with Supreme Court doctrine and with the early original understanding of Congress's power over naturalization.

BASIC ORIGINAL MEANING

Article I, Section 8, Clause 4 of the U.S. Constitution gives Congress the power "[t]o establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States" (emphasis added). This power was described by James Madison in Federalist No. 42 as one of those powers "which provide for the harmony and proper intercourse among the States" as "[t]he dissimilarity in the rules of naturalization has long been remarked as a fault in our system." The specific problem with having each State determine who was a citizen and who was an alien rather than a uniform federal system:

"[If] certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States."

Quite simply, the most obvious and original meaning of this clause was that the question of who is an American citizen had to be determined at the federal level so that there could be uniformity among the States in this important matter. However, this did not itself preclude laws at the State level regarding those that Congress have determined are not citizens. Early Constitutional scholar William Rawle, in his 1829 "A View of the Constitution," reiterated the point made by Madison writing that the purpose of this power was that "an alien...might...become a citizen of a state [and not another]...and thus in fact, the laws of one state become paramount to that of another [in regards to citizenship]. The evil could not be better remedied than by vesting the exclusive power in congress." However, Rawle importantly writes:

"Until these [citizenship] rights are [federally] attained, the alien resident is under some disadvantages which are not exactly the same throughout the Union. The United States do not intermeddle with the local regulations of the states in those respects. Thus an alien may be admitted to hold lands in some states, and be incapable of doing so in others. On the other hand, there are certain incidents to the character of a citizen of the United States, with which the separate states cannot interfere. The nature, extent, and duration of the allegiance due to the United States, the right to the general protection and to commercial benefits at home and abroad, derived either from treaties or from the acts of congress, are beyond the control of the states, nor can they increase or diminish the disadvantages to which aliens may, by such measures on the part of the general government, be subjected."

What is evident from Rawle is that laws regarding those that federal law has determined are aliens can be applied at both the federal and State level. During the debate about the Rules of Naturalization in 1790 in the House of Representatives, Congressman Sherman explained in line with the above that he "presumed it was intended by the Convention, who framed the Constitution, that Congress should have the power of naturalization, in order to prevent particular States receiving citizens, and forcing them upon others who would not have received them in any other manner." This was the original purpose of the federal power. Representative White further stated that he “doubted whether the constitution authorized Congress to say on what terms aliens or citizens should hold lands in the respective States; the power vested by the Constitution in Congress, respecting the subject now before the House, extend to nothing more than making a uniform rule of naturalization. After a person has once become a citizen, the power of congress ceases to operate upon him; the rights and privileges of citizens in the several States belong to those States; but a citizen of one State is entitled to all the privileges and immunities of the citizens in the several States. All, therefore, that the House have to do on this subject, is to confine themselves to an uniform rule of naturalization and not to a general definition of what constitutes the rights of citizenship in the several States." In the same debate still another representative, Representative Stone, concluded that the “laws and constitutions of the States, and the constitution of the United States; would trace out the steps by which they should acquire certain degrees of citizenship.” He also said “Congress may point out a uniform rule of naturalization; but cannot say what shall be the effect of that naturalization, as it respects the particular States. Congress cannot say that foreigners, naturalized, under a general law, shall be entitled to privileges which the States withhold from native citizens.”

The narrow meaning of this enumerated power is evident from pronouncements by those who supported the Constitution's ratification, by those that later said the same when debating rules over naturalization in Congress, and by the works of early Constitutional scholars. The Constitution therefore clearly does not prohibit State laws in the area of immigration, especially with a law like Arizona's which does nothing more than enforce existing federal law.

FEDERAL PREEMPTION

With this backdrop we can now discuss whether "federal preemption" prevents a State from enacting a law like that in Arizona. The Supremacy Clause (Article VI, Clause 2) makes Constitutional federal laws the "supreme law of the land," and therefore constitutional federal laws trump or preempt state laws. There are two main types of preemption seen in Supreme Court precedent: (1) Express Preemption and (2) Implied Preemption. Express preemption would be where Congress expressly declares their intent to not allow the States to be involved. This is simply not the case in the area of immigration. Congress has not expressly precluded the States from involvement in the area.

We then have to move to implied preemption which itself carries two possibilities: (1) Conflict Preemption and (2) Field Preemption. Because Arizona's law was specifically drafted in such a manner that it enforces, and never contradicts, federal law, it cannot be considered conflict preemption where State law conflicts with federal law and must therefore be voided. That is why the federal government would next rely on the logic of field preemption to say that they have so regulated in the field of immigration such as to exclude the States from involvement. In Rice v. Sante Fe Elevator (1947) the Supreme Court declared that the opponent of State law carries the burden of establishing that State police powers cannot “constitutionally coexist with federal regulation.” Law Professor Kris Kobach, the primary author of Arizona's law, points out that it is clear in this case that the federal government cannot bear that burden:

While it is true that Washington holds primary authority in immigration, the Supreme Court since 1976 has recognized that states may enact laws to discourage illegal immigration without being pre-empted by federal law. As long as Congress hasn’t expressly forbidden the state law in question, the statute doesn’t conflict with federal law and Congress has not displaced all state laws from the field, it is permitted. That’s why Arizona’s 2007 law making it illegal to knowingly employ unauthorized aliens was sustained by the United States Court of Appeals for the Ninth Circuit.

The fact is that S.B. 1070 falls squarely within the well established doctrine of concurrent powers, which are those powers of a federal system of government that are shared by both the state and the federal governments. As Alexander Hamilton clearly explained in Federalist No. 32, "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States." That this applies to immigration should actually be obvious. The very same clause that provides Congress with power over naturalization provides Congress with power over bankruptcy. The ability to make bankruptcy laws has long been understood to be a primary example of concurrent powers between the federal and state governments, and there is little reason the power over naturalization that precedes this by only a comma should be any different.

Under judicial precedent, and based on the most basic principles as seen in the original meaning of the Constitution, the Arizona immigration law must be declared Constitutional by the Supreme Court. Like too many questions this may well come down to the whim of Supreme Court swing vote King Anthony Kennedy. There is one clear course of action, and Kennedy should certainly follow it. Tweet