JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says Arizona’s controversial new immigration law appears to be constitutional, at least on its face, but the state must be scrupulously careful to avoid even the appearance of any kind of discrimination against Hispanics….

Arizona’s controversial new legislation to facilitate enforcement of federal immigration laws appears to be constitutional, at least on its face, although complex issues involving the statute’s language and application create uncertainties about its ultimate legal fate. The law, signed by Governor Janice Kay Brewer on April 23, requires state and local law enforcement officials to enforce federal immigration laws to the full extent permitted by federal law. The statute creates state penalties for various violations of federal immigration laws, including the requirement that aliens carry identity documents; prohibits the harboring of illegal aliens; and requires police to verify the immigration status of persons about whose status they form a reasonable suspicion during the course of law enforcement action and to inform federal officials of their status if it is illegal. The statute also permits state officials to deliver illegal aliens to federal authorities.

One of the principal constitutional questions is whether federal immigration laws pre-empt the Arizona legislation. Many opponents of the Arizona statute contend that the measure is pre-empted by Article I, section 8 of the Constitution, which permits Congress “[t]o establish an uniform Rule of Naturalization,” and by immigration legislation. Preemption is the focus of a federal lawsuit that was filed last week by the National Coalition of Latino Clergy and Christian Leaders to enjoin enforcement of the statute.

The co-called “preemption doctrine” is derived from the Supremacy Clause in Article VI of the Constitution, which provides that the “Constitution and the Laws of the United States…shall be the supreme Law of the Land…any Thing in the constitutions or Laws of any State to the Contrary notwithstanding.” Preemption may be either expressly stated in a statute or it may be implied. As the Ninth Circuit explained in its recent decision in Chicanos Por Causa v. Napolitano (2008), implied preemption may arise from “field preemption” or “conflict preemption.” In field preemption, congressional regulation is so pervasive that there is no room for state regulation. In conflict preemption, compliance with both federal and state law either would be logistically impossible or the enforcement of the state law would impede the accomplishment and execution of congressional purpose.

The U.S. Supreme Court relied on both types of implied preemption in its landmark decision in Pennsylvania v. Nelson in 1956, prohibiting state prosecutions for sedition against the United States because three federal anti-sedition statutes had created a “pervasive” federal structure that “occupied the field” and left “no room” for any action by the states. Decided at the height of the Cold War, the decision was widely assailed for hindering efforts to combat Communism. The Court warned, however, that redundant or meddling efforts by state officials to prosecute sedition could actually interfere with more effective actions by the federal government.

Even though Congress may enact naturalization legislation, however, and even if this power is exclusively federal, states are not necessarily barred from regulating illegal immigration.

In the Supreme Court’s only decision addressing the preemption doctrine in the context of legislation involving illegal aliens, De Canas v. Bica (1976), the Court unanimously upheld the constitutionality of a California statute prohibiting employers from knowingly employing “an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” In his opinion for the Court, Justice William J. Brennan, usually a strong proponent of federal power, rejected the argument that the statute was preempted by the Supremacy Clause because Congress has the exclusive power to regulate immigration. Brennan explained that the Immigration and Naturalization Act was principally concerned “with the terms and conditions of admission of the INA and the subsequent treatment of aliens lawfully in the country” and that it therefore did not necessarily prohibit restrictions on the hiring of illegal aliens. The Court remanded for a determination of whether the statute was being enforced consistently with federal law.

Six years later, Brennan in his opinion for the Court in Plyler v. Doe (1982) acknowledged that “the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal.”

Although the Arizona law seems to come closer to the subject matter of federal regulation than did the California law, the broad language of both of Brennan’s opinions suggests that there may well be “room” for the Arizona legislation. Further general support for this position may be found in the Ninth Circuit’s recent decision in Napolitano, which held that the Immigration and Reform Control Act of 1995 (IRCA) did not preempt an Arizona law requiring employers to verify the immigration status of workers even though the statute expressly preempted state laws regulating the employment of illegal aliens because there was an express exemption for “licensing and similar laws.” The presence of an express exception makes the decision distinguishable from the Arizona law, and the Ninth Circuit did not extensively address the issue of implied preemption. But a 2007 decision of the U.S. District Court for the Middle District of Pennsylvania, Lozano v. City of Hazelton, relied heavily upon a theory of implied preemption in holding a similar law enacted by a city. In addition to finding a conflict, the court emphasized that the IRCA provides a “comprehensive scheme” that “leaves no room for state regulation.” This decision, however, is under appeal in the Third Circuit.

Kris W. Kobach, a law professor who helped to draft the Arizona statute, plausibly contends that the Arizona law does not contravene the preemption doctrine because it provides for “concurrent” enforcement of federal law. Kobach has explained that the framers of the legislation were keenly aware of the preemption doctrine and took pains to craft it in a manner that would insulate it from a preemption challenge. In particular, the statute declares that it “shall be implemented in a manner consistent with federal laws regulating immigration.”

One reason why a court might invoke the preemption doctrine is that the state’s delivery of illegal aliens to federal authorities might impose a burden on the federal immigration system. Homeland Security Secretary Janet Napolitano, a former Arizona governor, has warned that the legislation could “distract from and siphon resources” that the federal government needs for deportation of illegal immigrants who are violent or commit crimes. She has expressed concern that “at some point we’ll be responsible to enforce or use our immigration resources against anyone who would be picked up in Arizona.”Although proponents of the statute acknowledge that federal resources are strained, they urge federal government to appropriate more funds for border security and enforcement of immigration laws. Many Americans believe that a few more billion dollars spent in the Southwest would do far more to enhance national security than have the trillion dollars that the nation has spent on its military adventures in Iraq and Afghanistan during the past decade.

In its most recent decision on preemption, Levine v. Wyeth (2009), the Court declared that “[w]e start with the assumption that the historic police powers of the States were not to be superceded by the Federal Act unless that was the clear and manifest purpose of Congress.” Every state has an inherent “police power,” which allows the state to legislate for the health, safety, morals, and welfare of its people.

In enacting its immigration statute, the Arizona legislature was exercising its police power in a reasonable attempt to protect its citizens from the many baneful effects of illegal immigration. In particular, the legislation should help to ameliorate crime, protect the natural environment, ease the ravages of the recession, promote social stability, and encourage respect for the rule of law.

Arizona’s crime problem has generated much support for the statute, and this is the principal justification that Governor Brewer offered in explaining why she signed the legislation. Arizona always has had a severe crime problem that reflects the rootlessness of a society in which so many citizens – including most non-Hispanic whites – are from other places. When I was growing up in Phoenix during the 1950s, 1960s, and 1970s, we always bolted our doors, day and night, at a time when many Americans still left their doors unlocked. Although the extent of the crime rate among illegal aliens is a subject of sharp controversy, there seems little doubt that illegal immigration has contributed to at least some additional crime. Economically affluent opponents of the Arizona law should consider that many of the victims of these crimes are working class persons – including Hispanics – who live in the low income neighborhoods that illegal aliens tend to inhabit. Many Arizonans complain that crime by illegal aliens is particularly pernicious because they often can escape prosecution because they live “under the radar” or because those who come from Mexico can slip across the border.

Environmentalism likewise provides a compelling reason for the statute. Protection of the environment is a particularly sensitive subject in Arizona, where the influx of millions of persons has damaged the fragile eco-system in the desert areas. Phoenix had eight thousand residents a century ago, and 106,000 in 1950. Today the city has 1.6 million and the metropolitan area has 4.3 million. Much of the state’s legal and political history has revolved around attempts to ensure a sufficient supply of water for its arid central and southern regions. The state’s supply of water remained highly uncertain until the U.S. Supreme Court in 1963 in Arizona v. California ruled in favor of Arizona in a dispute with California over the use of Colorado River water, and until Congress in 1968 enacted the Colorado River Basin Projects Act, a massive program for dams and reclamation. The staggering growth of Phoenix since the 1960s has raised questions about whether even a secure and steady flow of Colorado River water can sustain the state’s burgeoning water needs. Phoenix also has suffered periodically from a severe smog problem. The presence of an estimated 460,000 illegal aliens in the state places a burden on an eco-system that already is over-strained. Even if the state wanted to restrict the flow of people into Arizona from other states, any attempt to bar the movement of people into the state would run afoul of the due process, privileges and immunities, and commerce clauses of the Constitution.

Arizona’s explosive growth also has generated social and economic problems that are unique to this state. Although the state’s present unemployment rate of 9.6 percent is no higher than average for the nation, Arizona has been harder hit than most states by the decline in real estate prices. The effects of the recession are less likely to be cushioned in a state where so many people lack an established social safety network because they left their family and friends behind in Ohio or Tennessee or New Jersey. Anyone who visits Phoenix and ventures out beyond the cloistered enclaves of its tony resorts will be shocked by the extent of raw poverty. Slums sprawl for miles, and legions of homeless persons trudge miserably throughout the city at all hours of the day and night. Much of the poverty and homelessness is the result of the transience and rootlessness that always has been pervasive in Arizona. Many troubled people move to Arizona to make a fresh start, only to find that Arizona is no Promised Land. Even more than most states, Arizona therefore has a compelling reason to ensure that illegal aliens do exacerbate unemployment or swamp public and private social services agencies that have been severely depleted by the recession. Even when illegal aliens do not take jobs away from citizens, their frequent willingness to work for exploitative wages pushes down compensation for working class people and thereby retards economic recovery and economic growth. The presence of large numbers of illegal aliens in Arizona and elsewhere also has contributed to a growing gap between rich and poor that during the past three decades has severely eroded egalitarian ideals and discouraged a sense of shared community.

The social and economic problems generated by explosive growth also provide Arizona with a compelling interest in promoting social stability. Arizona is one of the most cosmopolitan places on earth. When I was growing up there, I was fortunate to know people who came from virtually all of the other forty-nine states and from many countries, including Mexico. A remarkably large proportion of public officials were first elected to office only a few years after arriving in the state – John McCain is an example. The state’s population is even more fluid than the population growth statistics indicate because a huge number of people also leave Arizona. The state’s marvelous diversity is one of its greatest strengths, but the constant population shifts also tend to impede social and economic stability. It is ironic but quite understandable that a state in which so many persons are newcomers has gone farther than most other states in its efforts to forge a distinctive state identity. People from other states usually tell me that they don’t know whether their states have a state song, but I know every word of the Arizona state anthem, Come to this land of sunshine, because we so often sang it in my elementary school in Phoenix during the 1960s. The Arizona flag, with its bright yellow and red rays of sun emanating from a gold star, is ubiquitous throughout the state. The presence of so many illegal aliens in a state in which so many persons are legal newcomers hinders the state’s compelling interest in forging unity alongside a healthy diversity and exacerbates the rootlessness and transience that are the source of so many of the state’s problems. It is therefore a sad irony that the immigration legislation is so divisive and that it is piercing a social fabric that already was fragile.

The Arizona statute also helps to encourage respect for the rule of law. The flagrant disregard of immigration laws by illegal aliens and the federal government’s failure to properly enforce those laws tends to demoralize law abiding citizens and sets a terrible example for young people, who should understand that they live in a society in which all persons are expected to abide by the law and that those who fail to do so will be punished.

Even if a court found that the presumption of constitutionality under the police power enabled the statute to survive a preemption challenge, a court may conclude that the statute is unconstitutional if a court finds that the statute violates any constitutional right or denies equal protection of the law to any particular class of persons.

One potential complaint against the statute is that it illegally discriminates against illegal aliens as a class. This argument, too, is likely to fail. Although legal aliens are a “suspect class” to which strict judicial scrutiny applies, the Court’s opinion in Plyler v. Doe applied a lower level of scrutiny to legislation affecting illegal aliens. The level of scrutiny applied in Plyler appears to have been somewhere between the “rational basis” standard, which requires only a rational relationship to a legitimate state interest, and an “intermediate” standard of review, which requires that a state demonstrate that its legislation serve an “important” interest and that this interest is “substantially related” to the legislation. The state’s interests, as explained above, are clearly both rational and important, and there is a strong reason to suppose that a court would find a sufficient nexus between these interests and remedies prescribed by the legislation.

Some critics of the statute allege that it violates the Fourth Amendment’s prohibition against unreasonable searches and seizures. This is unlikely, however, since the statute makes clear that any inquiry into immigration status must be conducted according to the same standards that apply to any search. The statute states that “[f]or any lawful contact made by a law enforcement official or agency…where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person” (italics are mine).

Although some opponents of the status have alleged that it would permit random detention of any person suspected of being an illegal alien and therefore could subject legal aliens or U.S. citizens of Hispanic heritage to harassment and abuse or could discourage them from reporting crimes to law enforcement officials, the “lawful contact” language indicates that the statute requires a predicate for any inquiry into one’s citizenship status. As Professor Kobach has explained, “That means the officer is already engaged in some detention of an individual because he’s violated some other law…The most likely context where this law would come into play is a traffic stop.” The statute explicitly creates a presumption that a person is not an illegal alien if he or she provides any kind of valid federal, state, or local identification. Moreover, the statute specifically forbids consideration of “race, color or national origin” in its implementation. Some proponents of the statute contend that random stops of Hispanics would be impracticable even if police were willing to violate the clear language of the statute since Hispanics constitute 30 percent of Arizona’s population and most are U.S. citizens or legal aliens. Governor Brewer has promised that law enforcement officials will receive proper training to ensure that they do not apply it in a bullying or racially discriminatory manner.

The law therefore does not necessarily create any kind of racial classification that would require the application of the equal protection clause of the Fourteenth Amendment. Even if a court somehow determined that the statute created some kind of racial classification, the statute still would not necessarily be unconstitutional. Although the U.S. Supreme Court has made clear that race is a “suspect class” that must be subjected to “strict judicial scrutiny,” the statute could withstand such scrutiny to the extent that the state could demonstrate that it has a “compelling interest” in enforcement of immigration laws and that the statute is narrowly tailored to achieve that interest. Since, however, strict scrutiny is often said to be “fatal in fact,” it would be very difficult for the statute to survive an equal protection challenge based upon race, particularly if there were any evidence that any police officer had harassed or otherwise abused an Hispanic person on account of race or ethnicity.

In enforcing the legislation, however, Arizona must be scrupulously careful to avoid even the appearance of any kind of discrimination against Hispanics. The state should do this at least as much for the sake of justice and decency as for the sake of ensuring that courts uphold the law’s constitutionality. Arizona, like all states, has a sad history of discrimination against non-whites, particularly Hispanics. When I was a boy in Phoenix during the 1960s, I heard my parents express indignation over the appalling conditions in migrant labor camps, and I was dismayed by my awareness of the discrimination and slights that Hispanics often endured. During the early 1970s, the governor of Arizona refused to meet with labor leader Cesar Chavez, who was trying to unionize Hispanic farm workers, arrogantly dismissing him as “that little lettuce picker.” Fortunately, times have changed. That governor is mostly forgotten, while Chavez is honored with a monument in the heart of downtown Phoenix. Arizona elected its first Hispanic governor, Raul Castro, way back in 1974. Meanwhile, the Anglo and Hispanic communities have grown increasingly intertwined. The Lutheran congregation in which I was raised during the 1960s (and in which future Chief Justice William H. Rehnquist and his family were members from 1959-69) regarded itself as diverse back then because it included both Germans and Scandinavians. That parish today has Hispanic members, and Governor Brewer’s Lutheran congregation conducts one of its Sunday services in Spanish. The tremendous outcry against the statute, however, indicates that such progress against prejudice and discrimination may not have been as pervasive as one would have hoped. Those of us who are not vulnerable to racial profiling should be not be too dismissive of the warnings of Hispanics who fear that the statute will be abused by law enforcement officials.

W.H. Auden once wrote that we should measure civilization by the amount of diversity attained and the amount of unity retained. In a nation that has so many races, ethnicities, and religions, our Constitution and our devotion to the principle of the rule of law have provided critically important sources of unity. It is unfortunate that the Arizona legislation, which is designed to encourage the rule of law, is generating so much divisiveness. Although the statute appears to be constitutional on its face, its constitutionality ultimately depends upon whether law enforcement officials in Arizona will apply it in a manner that does not unfairly discriminate against persons who have broken no law.

William G. Ross is a professor of law at Cumberland School of Law at Samford University in Birmingham, Alabama. He owns a vacation home in Arizona. His website is williamgeorgeross.com.