Editor: The following lesson in immigration law by our blogger Jack Hamlin – a lawyer and law professor – was initially set as a comment to an article criticizing the US Supreme Court upholding Arizona’s draconian SB 1070’s main provision, “show me your papers.” The court left standing SB 1070’s most controversial provision requiring Sheriff Joe Apario type, “state and local police to check the immigration status of anyone that they suspect is in the country illegally; if that person was initially detained for other legitimate reasons.”
The Arizona v. U.S. decision, from what I understand, came down on two points of law. 1) Separation of Powers/Supremacy Clause, and 2) The Preemption Clause. Let me explain, while you must take into consideration it is mid-afternoon on a sunny, summer, Sunday, in OB, California.
So first, Supremacy Clause and the Separation of Powers…The Constitution sets a number of powers of the federal government, those of the state, and those shared by both. Federal government has exclusive authority such things as banking, securities, raising a military, and many others, including for this week, regulating immigration. The states are not allowed to regulate these powers granted to congress.
An example of shared power is that of taxation and civil rights protections. Both the federal, state, and local governments can create and enforce taxation (also a big issue this past week), and in California, we have our own civil rights, named the Unruh Act, for late and very great, Jess Unruh.
Certain authorities are granted to the states, things like within state alcohol control and regulation and, so far, defining marriage.
The Preemption Clause comes into play when one of the shared powers appear to overlap, generally through statute or its interpret ion. Law enforcement is the shared power in this issue. In this case, Arizona enacted a statute which allowed state officers to question, detain, inquire, and arrest those individuals in which there is probable cause to believe the individual is in violation of federal immigration statutes. The statute was a state statute, which regulated immigration.
So, first Spremacy Clause gives the federal government exclusive authority over immigration issues. When Arizona enacted SB 1070, the state triggered the Supremacy Clause, and the federal government has the power to set the statute aside as unconstitutional. Which was part of the decision.
Next, the Court held the Preemption Clause precludes the state from enfocing immigration laws. State and local officers are only allowed to enforce immigration laws as deputies of the federal government, and under direct supervision of the agency with jurisdiction, i.e. ICE over a state officer enforcing immigration laws.
Now to answer your question. Border Patrol is a federal agency, a department of Homeland Security or ICE, I cannot keep them straight anymore. The Border Patrol takes its mandate from the federal government, and that is to enforce immigration regulation. The current ruling precludes a state agency from setting up a check point for immigration status checks. Not federal immigration agencies.
The Supreme Court also ruled under the Rhenquist Court, I believe, the immigration status check points found away from the border were not an unreasonable regulation of immigration, nor sufficient intrusion to constitute a 4th amendment violation. I believe he may have even refereed to it as a “minor inconvenience.” Hush my mouth.
So to wrap it all up, Border Patrol (aka LPM) is mandated to enforce immigration laws by Congress, and the Supreme Court has ruled BP may make checkpoint stops away from the border.
That was fun…
In Peace, Jack
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