comes before the U.S. Supreme Court this week for oral arguments. The core issue involves whether or not the Constitution allows states to write their own law enforcement statutes that relate to foreigners' immigration status.
In the constitutional republican framework, the people reserve their rights as individuals or, when acting corporately, exercise their powers through the means of their state or sub-jurisdiction of their state. And states hold broader powers than does the limited jurisdiction delegated to the federal government. This is by the Founding Fathers' design.
The history of the principle of federalism is rather clear-cut. The Tenth Amendment emphasizes this: "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."
Federalist 45 explains:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.
Under that set of facts, law, history, and principle, states hold vast, inherent authority. If not specifically delegated to the federal government in the Constitution, then regulating an area remains within a state's rights. This is equally true for those areas (such as taxation) where each sovereign holds authority.
In connection with immigration, Congress alone has plenary jurisdiction over setting the rules and conditions for admittance or rejection of foreigners seeking entry into U.S. national borders. But under the long-established principles of federalism, once an immigrant is admitted, states' general jurisdiction kicks in. That is, aliens may qualify to immigrate to America under the rules Congress adopts, but each state remains in control of maintaining "internal order" and dealing with "the ordinary course of affairs" affecting its residents' "lives, liberties, and properties". In other words, once in, native-born and foreigners alike stand subject to state laws.
In Arizona's case (and in a number of other states), the state wrote laws concurrent and consistent with federal immigration laws. It is already a federal crime to enter the United States, so Arizona simply wrote a parallel state law regarding unlawful presence. Federal law already requires immigrants to carry their immigration documents, so Arizona made that a state requirement. It's already a federal offense for an illegal alien to steal a U.S. job, so Arizona copied that requirement.
The other two provisions of this law the court is reviewing are requiring state and local police to check someone's citizenship status after a traffic stop, detention, or arrest if an officer has "reasonable suspicion" (a well-defined legal standard), and allowing an arrest without a warrant if an officer has "probable cause" (another well defined legal standard) to believe the suspect has committed any offense that would make him or her deportable.
The Obama administration argues that federal authority to set immigration laws somehow binds states from exercising their broad, unspecified police powers where aliens are concerned. By that argument, the same principle would preclude states and localities from holding immigrants to other state laws concurrent with federal statutes — taxes, narcotics, fraud, etc. Such a conclusion obviously is absurd. The same absurdity exists when fettering states because someone may be an alien.
A couple of things to keep in mind as this case is heard: 1) Justice Elena Kagan is sitting out this case because of her work in the administration before she joined the court, so, only eight justices will rule. 2) the court last year upheld Arizona and Hazelton, Pa., E-Verify laws conditioning business licenses on employment verification of — you guessed it — lawful immigration status or U.S. citizenship. Thus, the majority may see this law as sufficiently in line with the federalism principles decided in the former case. 3) much of Arizona's law has already taken effect and has been enforced for over a year now.