Legal Commentary

Arizona's new immigration law, SB 1070, raises many issues, but one question that has been central to the litigation and much of the public policy discourse is whether states can pursue more aggressive immigration policies so long as they "mirror" federal law. In the Arizona context the principal scholarly (Kobach) and political (Gov. Brewer, Sen. Pearce) proponents have made this argument repeatedly, and it has been made in the current litigation as well. The argument has taken many forms: "federal enforcement of current federal law is inadequate, and we are just here to help," "what is the problem with more enforcement of the laws that 'you' (the federal government) has passed?," "SB 1070 was designed to 'mirror' federal law and provide 'cooperative' enforcement."

We have previously noted that the description of SB 1070 as a mirror of federal law is descriptively inaccurate. The crimes in the state bill do not simply repeat federal law, some are entirely new (e.g., those that punish workers, not employers), and even when they rely on a violation of a federal provision, they provide different punishments.  See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1617440 But now we see a more fundamental constitutional problem in this structure--one that has not been raised in the litigation but, if we are correct, would be fatal to the criminal provisions in the Arizona statute. The particular problem we see is the use of state criminal law to achieve solely federal ends.

While the principle of dual sovereignty recognizes that many things can be both state and federal crimes, that principle, says the Court, "will be found to relate only to cases where the act sought to be punished is one over which both sovereignties have jurisdiction. . . . [It] has no application where one of the governments has exclusive jurisdiction of the subject-matter, and therefore the exclusive power to punish.? Therefore, an "offense against the public justice of the United States" is "within the exclusive jurisdiction of the courts of the United States."  If, as the Court has said, immigration is an exclusively federal power, to the extent that a state crime punishes a non-citizen for the manner or status of immigration, it is a wrong, if at all, to the nation rather than any particular state.  It is precisely the embrace of federal law and powers, without an independent state basis for criminalization, that creates the problem. In other words, we believe the explicit theory on which SB 1070 is based is wrong; "We are just helping the Federal government" is a confession, not a defense. Cracked Mirror: SB1070 and Other State Regulation of Immigration Through Criminal Law.

This point is critical to the Arizona law, but also larger than Arizona: several states have passed new criminal laws intended to aide in federal immigration enforcement, and many additional such laws have been proposed. So, are we right?

Marc Miller & Jack Chin