In a staggering sweep in California, 1,300 illegal immigrants have been arrested. Last week, federal agents in Nevada raided 11 McDonald's restaurants as part of a crackdown on illegal immigrants. In New York's Nassau County, armed Immigration and Customs Enforcement officials raided homes in the middle of the night in search of gang members and fugitives.So that's the situation. Neighborhoods are being turned into a battleground as local governments and citizens, discontented with federal enforcement, decide to crackdown on illegal immigrants.
Secretary of Homeland Security Michael Chertoff admits that raids aren't the perfect solution, but that they are a reality right now.
"I think we have an obligation to use the tools that we do have at least to achieve what the law currently requires," Chertoff said.
But in Irving, like many places around the country, residents aren't willing to wait for government intervention. Police are turning over any arrested illegals to the feds.
Latino parents have grown so nervous, they are keeping their kids out of schools.
"If you look Hispanic they pull you over," Irving student Crystal Chacon said.
One man from Virginia said he was so frightened about being rounded up in Virginia, where governments are threatening action, that he would only talk to ABC News anonymously.
"What breaks my heart," he said, "is when my 6-year-old daughter comes home and asks why do they hate us."
Nat-Wu has done more than an adequate job pointing out how ridiculous things have gotten, so I wanted to touch on some of the legal questions of this kind of local enforcement since it is something I've researched in the past. Allow me to cannibalize my own college paper from awhile back:
Persuant to a 2005 Arizona statute, the County Attorney and Sheriff of Maricopa County arrested and prosecuted illegal immigrants entering the state with a charge of conspiracy related to the smuggling of human beings for profit or commercial purpose. The Center for Human Rights and Constitutional Law, who have provided counsel for many prosecuted under the statute, argues that this state law violates the doctrine of preemption. The Supremacy Clause of the United States Constitution places federal law above state law at all times, and when in conflict state law must yield. The organization argues that because immigration is regulated by federal law, the application of this Arizona statue would be in conflict with U.S. government immigration policy.Whew, I know that's long (my constitutional law classes clearly paid off!). Thankfully things aren't as wild in most places as they are in Maricopa County. However, I think this does point out the legal ramifications of the increasingly aggressive role local law enforcement in trying to play in regards to illegal immigrants. This of course doesn't mean they can't do anything about it, but they certainly shouldn't be practicing the kinds of clear discriminatory practices going on in Irving either no matter what enforcement powers you think they have. Anyway, this is just another example of how we are being failed by certain members of Congress who don't want to update our national immigration policy.
Let us turn to the doctrine of preemption and previous Supreme Court rulings in this area. In Pennsylvania v. Nelson, the Court dealt with the question of whether a Pennsylvania statute prohibiting the advocating of the overthrow of the United States government was in conflict with the federal Smith Act of 1940 which prohibited the same conduct. The Court held that the Pennsylvania Sedition Act was superseded by the federal law. Chief Justice Earl Warren wrote in the majority opinion that the scheme of federal regulation of seditious activities was "pervasive" and "left no room for the states to supplement it." Secondly, the Court held the federal interest must be dominant, and that this was so with the issue at hand. Certainly the investigation of communist activities and the prosecution thereof were seen as a part of the national security interest at the time. Indeed, the Smith Act dealt with an issue seen as of primary importance to the federal government making any enforcement of similar state laws potentially harmful to the smooth execution of national statutes and the purposes that were behind their enactment (especially considering the Pennsylvania law provided for harsher penalties than the Smith Act did), the third concern for the Court. In fact, using these three parameters, the Court created a future test for when states would not be allowed to supplement federal laws, which I will apply here to this case.
Firstly, we must address the question of whether immigration has generally been considered a mainly federal issue by the courts. Similar to Pennsylvania v. Nelson, Hines v. Davidowitz dealt with a Pennsylvania statute that regulated alien registration in conflict with a federal statute regulating the same subject. Again, the Court voided the Pennsylvania law. Justice Black, writing for the majority in the case, wrote the following: “…the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by authors of The Federalist Papers and has since been given continuous recognition by this Court.” Furthermore, in Takahasi v. Fish and Game Comm’n, the Supreme Court held that states “can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.”
On the question of the pervasiveness of the federal laws regulating immigration, the decision reached in Plyler v. Doe states “The Constitution grants Congress the power to ‘establish a uniform Rule of Naturalization.’ Art. I., 8, cl. 4. Drawing upon this power, upon its plenary authority with respect to foreign relations and international commerce, and upon the inherent power of a sovereign to close its borders, Congress has developed a complex scheme governing admission to our Nation and status within our borders.” In the case Gonzales v. City of Peoria decided by the 9th Circuit Court of Appeals, individuals of Mexican descent alleged that they had been unlawfully stopped, questioned and detained by city police without reasonable suspicion or probable cause, and instead, solely on the basis of their race and appearance. The 9th Circuit held that they had standing to pursue damages, injunctive and declaratory relief, but more importantly, the opinion was willing to “assume that the civil provisions” of immigration law “constitute such a pervasive regulatory scheme” as to preempt state and local arrest authority. Thus, the Arizona statue would seem to be in conflict with the first stage of the test as laid out in Pennsylvania v. Nelson when looking at the decisions in cases on both the Court of Appeals and Supreme Court level.
Further evidence that a pervasive regulatory scheme is in place is exemplified in the fact that federal immigration laws currently reference when state and local authorities may act to enforce federal regulations. Given the inclusion of these provisions in the statutes, it is reasonable to argue that Congress intended to expressly give non-federal law enforcement this authority only in the specific ways that are laid out in the statutes, implicitly denying them the authority in areas not addressed. Even though Arizona authorities were acting pursuant to state law, the doctrine of preemption would hold that Arizona law could not give state and local authorities the power to control regulations outside the boundaries set by Congress. After all, they do not have such power to enforce federal laws in other issue areas as the Executive Branch has the clear Constitutional authority to do so.
Now that we have established that federal immigration laws are sufficiently pervasive, we must address whether or not immigration control is an issue where the federal interest is dominant. Though illegal immigration by Mexican citizens into the United States disproportionately affects states in the southwestern region of the country, when we consider the issue deals with the nation’s borders and a massive influx of people from other countries (with whom it is necessary for the federal government to deal with in regards to immigration policy), often unknown to authorities, one can only reasonably arrive to conclusion that there is an important national interest in regulating immigration. Given the potential socio-economic impact and national security implications for the whole country which are involved here, it is clear that the federal government has compelling reasons to construct such pervasive immigration laws and both explicitly and implicitly limit individual states from regulating immigration with their own laws.
This becomes even clearer when we consider how state regulations, if allowed to remain in place, could potentially undermine the objectives of federal statutes. Returning to Pennsylvania v. Nelson, a primary reason the federal government did not desire states to supplement the Smith Act with their own, harsher laws (and the third reason the Court struck down the Pennsylvania statute) was that they want federal authorities to be able to use the threat of prosecution to get information out of suspects (the threat being useless if they could be prosecuted under a state statute anyway). The Arizona statute we are considering here deals with human smuggling. Could not such laws be similar hurdles to the investigation and prosecution of human smuggling rings by federal authorities? Also, given the recent attention given to illegal immigration in the post-9/11 period, in regards to the potential danger to national security, it is also questionable that we would want conflicting federal and state laws on this issue.
In conclusion, the application of this statute clearly puts the state in a position of regulating immigration, and federal law also clearly preempts efforts by the states to do so. Policy and law dictate federal authority over this issue area and the Arizona statute is not able to maneuver around the three-prong test given to us by the U.S. Supreme Court in Pennsylvania v. Nelson. Thusly, the Arizona law can not be used to prosecute immigrants in accordance with the U.S. Constitution.