Josh Blackman » Does the “the fact that the Attorney General is suing the state of Arizona to get them to stop enforcing SB 1070” demonstrate that Arizona is not cooperating with the federal government on immigration?

Does the “the fact that the Attorney General is suing the state of Arizona to get them to stop enforcing SB 1070” demonstrate that Arizona is not cooperating with the federal government on immigration?

April 25th, 2012

Ian Millheiser makes this point at ThinkProgress about Arizona v. United States:

A majority of the Court appeared sympathetic to Republican superlawyer Paul Clement’s argument that, even if the Court does not eliminate the longstanding rule against states’ setting their own immigration policy, federal law effectively deputizes Arizona to seek out and discover undocumented immigrants within its borders. Under the provision Clement relies on, states are permitted to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” So Clement claims that SB 1070 simply “cooperates” with the federal government by helping to identify undocumented immigrants that federal officials can then detain or deport.

There are a number of problems with this argument, but the most important one is that Arizona is not “cooperating” with the Attorney General in anything — a reality that is pretty conclusively demonstrated by the fact that the Attorney General is suing the state of Arizona to get them to stop enforcing SB 1070. It is a bizarre form of “cooperation” that leads your partner in an endeavor to seek a federal court order to get you to stop trying to lend a hand.

The provision in question is 8 U.S.C. 1357, which provides in part:

(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State—

(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or

(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.

Last time I checked, this statute was authored by Congress, and signed into law by the President. Ian’s point raises an interesting element of who passes laws, who enforces them, and who is responsible for determining “cooperation.”

Preemption doctrine looks to the statute, and the intent of the Congress. So, the Court would look to the intent of the Congress that passed this law (but under no circumstances should legislative history be consulted). In that case, it would seem irrelevant what position the current Attorney General takes when interpreting a statute enacted under a different presidency decades earlier.

But on a deeper level, does it matter who is challenging the law? The caption of the case is Arizona v. United States, but really it is the executive branch challenging the law. As we saw with the Defense of Marriage Act case, the executive declined to defend the law, so Congress, through the House of Representatives, stepped in.

So, going back to my original question, to what extent should the fact that the current AG opposes this law matter? I mean, if he liked the law, he wouldn’t have sued to stop it in federal court. However, it does matter to the extent he can demonstrate that the Arizona law is *actually* frustrating DOJ policy.

Anyway, some food for thought.

Update: It has happened before. It happens again. I agree with Chuck Schumer.

If the U.S. Supreme Court upholds an Arizona immigration law after hearings this week, Sen. Chuck Schumer (D-N.Y.) and other legislators say they will file legislation to undo it.

“Congress does not intend for states to enforce their own immigration schemes,” Schumer said at a hearing Tuesday on Capitol Hill. “It is simply too damaging to our economy and too dangerous to our democracy, to have 50 different states be permitted to take their own direction when it comes to immigration policy.” . . .

At a Senate Judiciary subcommittee hearing, Schumer said his legislation would expressly preempt states and localities from enforcing immigration law unless doing so with the consent of the federal government, and prevent states from enacting their own civil or criminal penalties for immigration violations.

Schumer said he hopes the legislation will not be necessary, “because I do believe the Supreme Court will decide SB 1070 is not constitutional.”

If Congress changes the law after the Supreme Court’s opinion, then that–and not the Attorney General’s views on the law–will provide a basis for changing the Court’s jurisprudence on preemption.

Now, good luck actually passing such a law.