Today, the Justice Department filed an injunction that seeks to block Arizona’s recent immigration law. Its rationale for the lawsuit is that the Arizona law is unconstitutional since enforcing immigration laws is a federal prerogative and that federal law overrules state laws based upon the premise of preemption.
According to the supremacy clause in the Constitution (Article VI, Clause 2), federal law is the highest in the nation, and all federal and state courts are duty bound to uphold it. Based on this principle, whenever a state law is different than a federal one, the federal law is supreme. An early use of this clause is one of the more famous Supreme Court cases, McCullough vs. Maryland, which held that states were not permitted to tax the federal government.
Arizona’s defense to this charge is that, to a great extent, its law mirrors the federal government’s existing statutes. It makes it against state law for individuals to reside in this country illegally, it makes clear that racial profiling is not to be used to enforce the law, and it develops a standard, ‘reasonable suspicion’, that protects law enforcement officials and individuals. The law also requires that the US Immigration and Customs Enforcement officials will train state law enforcement to ensure that constitutional protections are enforced.
The Justice Department counters that the Arizona law will lead to police harassment, harming individuals’ civil rights. It also says that the state law interfered with the federal enforcement of immigration laws, and could undermine national foreign policy goals.
What the federal government’s case rests on is the idea that it, and only it, may pass laws dealing with immigration compliance. Then, if it chooses not to enforce those laws, there is nothing any state may do, no matter what harm comes to that state due to the non-enforcement. I think that what the federal government is saying in the lawsuit is that Congress has carefully developed a series of immigration laws, each of which mandates enforcement of the border. However, each of the laws has been a charade upon the American people, who have been gullible enough to believe that when Congress passed a law, then the executive branch has a constitutional duty to enforce it. We now learn that there is an unspoken alliance between the two branches so that the only loser is people’s faith in the democratic institutions we celebrated two days ago.