Arizona immigration ruling is constitutionally flawed

Fifth, the federal government’s fact-sensitive claim to be overwhelmed — and that SB 1070 is therefore preempted — is disingenuous.  The district court accepts the federal government’s contention, without a factual inquiry, that SB 1070 will occasion a surge of inquiries into immigration status, and that this surge will disrupt the federal government’s “priorities” as to immigration.

So the federal government cannot be expected to do more of what it is statutorily charged with doing.  Multiple inquiries as to immigration status sufficiently overwhelm the federal government — such that the federal government’s “priorities” are disrupted.  If vindicated on appeal, this federal government argument becomes a bullet-proof aggrandizement of federal power.

The federal government and the district court rely upon Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 351 (2001) (finding a state “fraud on the FDA” law preempted in part because it would create an incentive for individuals to “submit a deluge of information that the [federal agency] neither wants nor needs, resulting in additional burdens on the FDA’s evaluation of an application”).

In Buckman, the unsolicited “deluge of information” would have been “information” designed to forestall elaborate fact questions in civil litigation.  There is no upper end to the magnitude of “information” one might submit to an agency in theoretical self-protection against civil litigation.  That’s why the Supreme Court found it unduly burdensome to the agency.

S.B. 1070 poses no such “deluge.”  Quite the contrary, the single, simple inquiry contemplated is immigration status — which the federal government itself assures us is a swift determination.  The federal government’s own sworn affidavit in the Arizona case describes the procedure administered by ICE, which “serves as a national enforcement operations center that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.”

In other words, we can get the answer easily and quickly.  There is neither “deluge” nor “delay” here — only a possible increase in precisely the types of inquiries the federal agency is charged by law with dispatching “promptly.”

I say “possible increase” because I don’t even necessarily see the federal government’s factual predicate. Wouldn’t the vast majority of arrests permit the Arizona authorities to conclude that there was no illegal immigrant issue here (and therefore no need to involve the federal government)?  The Arizona statute does not mandate by its terms that every person arrested be subject to federal immigration status validation.  So what will actually happen is a real world determination that there is no immigration issue, or a real world neglect of any possible immigration issue.

Even if the foregoing is subject to factual dispute, it should have militated against entry of a preliminary injunction.  The federal government telling a state it cannot enforce one of its duly enacted laws even before it takes effect is not undertaken lightly.  The legal presumption is against the federal government.

It bears noting in closing that if the federal government’s sweeping theory — partially embraced by Judge Bolton — that the federal government’s dictates as to immigration law are supreme and exclusive, then it cannot be doubted that so-called “sanctuary cities,” the municipalities that conclude — with ordinances — that they will not cooperate with federal immigration law and will not report to the federal government illegal aliens arrested for crimes (Washington, D.C.; New York City; Los Angeles; Chicago; San Francisco; Santa Ana; San Diego; Salt Lake City; Dallas; Houston; Austin; Detroit; Jersey City; Minneapolis; Miami; Denver; Baltimore; Seattle; Portland; New Haven; Portland, Maine), are standing fully athwart the intentions of Congress and the purpose of federal immigration laws, in manifest violation of federal law — and they should be held accountable by DOJ lawsuits.

Kendrick Macdowell is a lawyer and writer living in Washington, DC.