Arizona/DOJ immigration law update

"The U.S. Supreme Court has made clear that '[t]he States enjoy no power with respect to the classification of aliens.' Plyler v. Doe, 457 U.S. 202, 225 (1982)," an amicus brief filed by Michigan attorney general Mike Cox yesterday in behalf of his, eight additional states, & the Northern Mariana Islands, in support of Arizona’s immigration law reads.

"In the realm of the regulation of legal immigration, State regulation of legal aliens is preempted unless Congress specifically provides such power to the States. See, e.g., Graham v. Richardson, 403 U.S. 365, 378 (1971)," the brief continues. "Thus, 'state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress.' Toll v. Moreno, 458 U.S. 1, 12-13 (1982)(emphasis added).

"But the same standard does not apply to aliens who are unlawfully in the country. As the U.S. Supreme Court explained in De Canas v. Bica, 424 U.S. 351, 354 (1976), it 'has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power[.]' Rather, States have authority to act with respect to illegal aliens, if that action is consistent with the Federal objectives set by Congress. De Canas, 424 U.S. at 357. Congress intended to allow States to regulate concurrently with the Federal government with regard to the employment of illegal aliens and, therefore, such regulation is not preempted. Toll, 458 U.S. at 13 n. 18."

"'Arizona, Michigan and every other state have the authority to enforce immigration laws,'" Cox says, "'and it is appalling to see President Obama use taxpayer dollars to stop a state's efforts to protect its own borders… My mother was a legal immigrant who faithfully carried her green card with her for years before gaining citizenship -- it certainly is not too much to ask legal immigrants to do the same today.'"

The American Bar Association filed a brief as well yesterday, saying in its part, "While the ABA believes, as discussed in the ABA Commission on Immigration 2010 Report, that the federal immigration system must be reformed, and while the ABA appreciates Arizona’s desire to tackle the problems faced by that state, the ABA also urges that our Constitution does not allow for unilateral state action in the formulation of immigration law. Immigration matters are and must remain federal, and states should not be permitted to enforce immigration law independently of specific federal authorization; the practical result of the contrary would be the undermining of uniformity in immigration law and immigration law enforcement."

"The Supremacy Clause," ABA’s brief postulates, "provides that the ‘Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.’ U.S. Const., art. VI, cl. 2.. As it pertains to this case, the Constitution has vested exclusive power over naturalization matters with the federal government, U.S. Const. art. I, § 8, cl. 4, and the Supreme Court, recognizing that immigration is uniquely a federal matter, has stated, “The authority to control immigration . . . is vested solely in the federal government." Truax v. Raich, 239 U.S. 33, 42 (1915).