Posted by
flagwaver on Friday, July 16, 2010 10:43:56 AM
Since US Attorney General Eric Holder has decided to use the power of the federal government to crush the sovereignty of the State of Arizona, I have been thinking quite a bit about the way the State could argue its case in defense of SB-1070. Now I am no constitutional scholar like our esteemed President Obama, and I am sure that Governor Brewer has excellent legal representation but this is my blog, and so I get to indulge in giving my learned legal opinions and dispense unsolicited advice…and that is just what I am about to do right now.
If I were arguing the case, my first and most compelling argument would be that contrary to federal claims in the lawsuit, there is no conflict between SB-1070 and the myriad federal immigration laws on the books. As has been repeated more times than we can count, SB-1070 was patterned on existing federal statutes, and in no way steps outside of them to the detriment of anyone who happens to be questioned under the new statute. In fact, by explicitly banning the use of race as criteria in questionings, and by requiring training to law enforcement officers in avoidance of racial profiling, SB-1070 actually adds a layer of protection for the public that is missing from the federal laws.
Further, the US claims that the passage of SB-1070 is in violation of the supremacy clause of the Constitution does not seem to hold water. The US Constitution states in Article VI, Clause 2: “This Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land…[the] laws of any state to the contrary notwithstanding.” It is the stated position that US immigration policy as adopted by the federal government flows from Article I, Section 8, Clause 4 of the Constitution which allows Congress to “establish a uniform Rule of Naturalization” regarding new immigrants to the nation. But nothing in SB-1070 runs counter to either of those clauses, but in fact upholds them. SB-1070 does not establish any new ideas on federal immigration policy; instead, the statute simply does what other parallel laws do by making state laws that mirror their federal counterparts. In essence, SB-1070 simply incorporates federal statutes at the state level.
Also, the state could argue its right to pass this law and enforcement provisions relying on Amendment X of the US Constitution, which states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” That is the firmest constitutional grounds the State of Arizona has to stand on in this case, because other that mentioning the power to establish naturalization rules, the Constitution does not specifically grant power over immigration law solely to the federal government. Arizona could argue that SB-1070 falls within their purview as part of its police powers, which allows the state to make laws for the protection of the health, safety, and welfare of its citizens. Or, it could point out that SB-1070 is a prime example of the concurrent powers shared by the state and federal governments, especially as the Arizona statute is a virtual carbon copy of the existing federal statutes.
What I hope is that the State gets a fair hearing before a judge or panel of judges who understand the simplicity and clarity of the Constitution. For the federal government to ultimately prevail would be a virtual repeal of the Tenth Amendment, because if the states are not allowed to pass laws that incorporate federal law at the local/state level, then no law that is written by the states will ever be immune from challenge. That is one precedent that I surely do not wish to be set for this nation going forward.