Enactment or amendment of U.S. immigration law has always been a political and equally contentious issue. Two segments of society traditionally pull at various provisions in opposite directions, resulting in only partial and inadequate resolution. Indeed, since the terrorist attack of September 11, 2001, movement on immigration legislation has been at a near standstill. One side of the battle calls for legal status for a declared 12 million undocumented or illegal foreign nationals (“aliens” per our statute) present in the U.S., while the other side demands control of the border.
As for the states along our southern border, yes, most of the aliens are from Mexico. This is due to their proximity to our border, the size of our border, the failing economy in Mexico, and more recently the near civil was being waged by the Mexican drug cartel. Since the federal government has taken no action to deal with the issue of this migration of necessity, the states carry the financial burden of education, medical benefits, and law enforcement. This is the reality of a most unfortunate humanitarian situation.
Arizona has decided to tackle its dilemma full force by enacting SB 1070 which has been signed into law as the Support Our Law Enforcement and Safe Neighborhoods Act (“SOLEASNA”). Its stated purpose is the “compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona” and “to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United.” In other words, Arizona has decided to act where the federal government has been unresponsive.
Constitutionality of SOLEASNA
The U.S. Constitution is the highest law of the land. It may not be superseded by any state, nor may its protections be violated by Congress. All laws must honor the provisions of the Constitution. SOLEASNA potentially, if not absolutely, violates several provisions of the U.S. Constitution:
1. Article I, Section 8: “The Congress shall have Power… To establish an uniform Rule of Naturalization….” All immigration provisions fall under this section. This authority is reserved for the U.S. Congress.
2. Article I, Section 10: “No State shall… pass any Bill of Attainder.” Attainder is defined as a law that has a negative effect on a person or group. In this case the group is aliens unlawfully in the U.S.
3. Article VI: “The Constitution… shall be the supreme Law of the Land; … …Laws of any State to the Contrary notwithstanding.” No state may enact and enforce a law that conflicts with or is in an area reserved for the federal government. Immigration is one of those areas.
4. Amendment 14: “…nor shall any State deprive any person of life, liberty, or property, without due process of law….” Due process is a guarantee of fairness in the form of notice of charges and an opportunity for a hearing on the charges before any adverse consequence is imposed. The question of whether a person may be in the U.S. illegally is not always a simple determination. And if he is here illegally over 90 days, the alien may not be removed without a hearing before an Immigration Judge.
SOLEASNA by its stated purpose takes it upon itself to “enforce federal immigration laws” in Arizona. This is reminiscent of California’s Proposition 187 enacted in 1994 which denied public benefits to illegal immigrants. It was truck down by the courts as unconstitutional because it impinged on a area reserved for federal authority. SOLEASNA too is outside this authority. This is true no matter how carefully the law is to be interpreted or applied.Invading federal jurisdiction is simply forbidden. However, until it is challenged in court, it will stand.
California’s 187 was a wake up call for Washington which was followed by the 1996 welfare reform legislation, eliminating public benefits to those in the U.S. in unlawful status. Since then, except for medical emergencies, benefits are not granted until immigration status is verified by the Citizenship and Immigration Services. Similarly, SOLEASNA has caught the attention of President Obama who has already been impelled to comment. It remains to be seen whether in the face of strong public condemnation and public protests, the Arizona law will actually be enforced, and to what extent the Obama Administration will participate in a legislative effort on an issue long plaguing the U.S. population and the millions of undocumented in our midst.
Copyright, Aggie R. Hoffman, Attorney at Law, April, 2010