Friday, May 27, 2011

Supreme Court Upholds Arizona Immigration Law; Senator Delph is Vindicated

Yesterday the United States Supreme Court in Chamber of Commerce v. Whiting, found 5-3 that the Arizona immigration law was not prohibited by federal immigration legislation.  For all those critics who were certain the law was unconstitutional, Sen. Mike Delph, author of the Indiana immigration bill, has been vindicated. 

Ironically only the day before, the American Civil Liberties Union filed a  constitutional challenge to Sen. Delph's bill.  The Indiana Law Blog has links to the complaint as well as other documents related to that filing.

State Senator Mike Delph
Let me be the first to say I don't agree with Senator Mike Delph's immigration bill, especially as it was originally introduced.  I have enough experience with immigration law to know the system is horribly broken. While I am all for better enforcement of immigration laws, I believe any enforcement crackdown needs to be pursued within the context of comprehensive immigration reform.

Having said that, I did not agree with those opponents to Delph's bill who were absolutely certain that states were barred from passing laws on immigration.

The Constitution contains a list of matters that Congress can legislate on.  Most of those matters are outlined in Article I, Section 8, the so-called enumerated powers.  Any law passed by Congress is is supposed to relate to a specific power granted to the federal government by the Constitution..

State power works just the opposite.  Unless there is a provision in the U.S. (or state) Constitution, denying certain power to the state, the state can exercise that power and pass a law on the subject. 

If you sketch out these two concepts, you'll find an area where the federal and state governments have overlapping power.  In that area, states can still pass laws, but the validity of those laws is governed by the Supremacy Clause.  The issue of immigration falls within that area of overlapping powers.

In reviewing the impact of the Supremacy Clause, the first thing you look at is whether the federal government has "preempted" the area.  "Preemption" is a fancy word that means that the federal government has completely taken over the area and no state legislation on the subject will be allowed.  Preemption is determined by looking at the legislative intent of Congress as well as the pervasiveness of the regulation.  An example of an area that has been preempted by the federal government is the regulation of the airline industry.

Even if the federal government is not determined to "preempt" the area the state law still might not be valid.  The issue in this analysis is whether the specific state law conflicts with federal law on the same subject.

These are the issues the United States Supreme Court was wrestling with in Chamber of Commerce v. Whiting.  Those who were certain that it was a slam dunk issue, that only the federal government can legislate on immigration, well that was never the case at all.    One can question whether Delph's bill is good policy, but almost certainly, after Whiting, they can't say it is unconstitutional.


Nicolas Martin said...

The court has also favored involuntary sterilization. That doesn't make Delph any less odious.

foretell said...

The case of the more controversial Arizona statute, concerning police stops, is still in the pipeline.

Cato said...

Paul, since when is a Supreme Court opinion "vindication" of anything?

American courts are not repositories of rectitude. They make no appeal to philosophy, logic or foundational questions of right and wrong. Their "opinions" are frequently reprehensible and loudly scorned.

Is Zoeller vindicated because the Indiana Supreme Court recently erased the foundational compact between citizen and state?

All that can be said of Delph or the winning side in any case is that the court took his or their side.

Cato said...

"Unless there is a provision in the U.S. (or state) Constitution, denying certain power to the state, the state can exercise that power and pass a law on the subject."

Paul, simply, bullshit. In order for any government to act, it has to have a preexisting grant of authority from the citizens and not be barred from the action by the Natural Law. Governments do not come into existence with all possible powers, only limited by charter. The reverse is so profoundly true, unless we risk sanctioning a totalitarian state.

Merely because no barrier has been erected is not a permission for a government, any government, to act.

Government, any government, is only empowered to do what the people have permitted it. Bluntly, no permission, no action.

You need to dwell a bit on who is truly sovereign, the citizen or the state.

"Governments derive their powers from the consent of the governed." As a professor of politics, I trust you know the author.