Here are some random thoughts from Arizona v. United States on Social Cost. I don’t have time to clean it up.
The Social Cost and “Evil Effects of Illegal Immigration”
Much more is that so when, as here, the State is protecting its own interest, the integ rity of its borders. And we have said that explicitly with regard to illegal immigration: “Despite the exclusive fed eral control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.” Plyler v. Doe, 457 U. S. 202, 228, n. 23 (1982).
What I do fear—and what Arizona and the States that support it fear—is that “federal policies” of nonen forcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue (ante, at 6) but leaves unremedied in its disposition.
Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding? . . . But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immi- gration enforcement some 1.4 million illegal immigrants under the age of 30.4 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra tion’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforc ing applications of the Immigration Act that the President declines to enforce boggles the mind.
The Court opinion’s looming specter of inutterable hor ror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute fed- eral registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?
He keep’s calling the President the “Federal Executive.” This must be contradistinguished from the State Executive (that is Governor Jan Brewer, in this case). Kennedy describes the social costs of illegitimate immigration somewhat more positively:
Unauthor ized aliens who remain in the State comprise, by one es- timate, almost six percent of the population. See Passel & Cohn, Pew Hispanic Center, U. S. Unauthorized Im- migration Flows Are Down Sharply Since Mid-Decade 3 (2010). And in the State’s most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (esti mating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix). Statistics alone do not capture the full extent of Arizo na’s concerns. Accounts in the record suggest there is an “epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border. Brief for Petitioners 6. Phoenix is a major city of the United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, “DANGER—PUBLIC WARNING—TRAVEL NOT RECOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed.” App. 170; see also Brief for Petitioners 5–6. The problems posed to the State by illegal immigration must not be underestimated.
And here is a new test to determine if something is constitutional, or preempted, or whatever
A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. . . . Now, imagine a provision— perhaps inserted right after Art. I, §8, cl. 4, the Naturali zation Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immi gration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.
As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from en forcement, and will be able to compete openly with Ari zona citizens for employment. Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.
No respect there. Here is Alito’s jab at Obama:
The United States’ argument that §2(B) is pre-empted, not by any federal statute or regulation, but simply by the Executive’s current enforcement policy is an astounding assertion of federal executive power that the Court rightly rejects.
I also blogged about this point earlier—what the role of the current administration’s policies should be in determining whether state actions cooperate of frustrate federal action.
The United States’ attack on §2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy . . . If §2(B) were pre-empted at the present time because it is out of sync with the Federal Government’s current priorities, would it be unpre-empted at some time in the future if the agency’s priorities changed?
How did I miss this?? Unprecedented!
If accepted, the United States’ pre-emption argument would give the Executive unprecedented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations. This argument, to say the least, is fundamentally at odds with our federal system.
The idea that state and local officers may carry out arrests in the service of federal law is not unprecedented.
Kennedy offers this rejoinder with respect to the discretion of the Executive:
Discretion in the enforcement of immigration law em braces immediate human concerns. Unauthorized work ers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who com mit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Exec utive Branch to ensure that enforcement policies are con sistent with this Nation’s foreign policy with respect to these and other realities.