Could New Argument Against SB1070 Prove Law Is Unconstitutional?

A civil rights lawyers has proposed a new framework for understanding why the Arizona immigration law SB1070 currently making its way through the Supreme Court should be unconstitutional – she calls it “reverse-commandeering.”

Margaret Hu, an assistant professor at Duke University, argues that by making laws like SB1070, Arizona “represents an attempt to control the terms of what federal resources and officers must be appropriated to accommodate a myriad of state immigration enforcement programs.”

While it’s unconstitutional for the federal government to do this under the “anti-commandeering principle,” Hu argues that it should be unconstitutional for states to do it as well. She calls the attempt by Arizona to use federal resources for its enforcement goal “reverse-commandeering.”

“There’s been a lot of concern that the federal government is getting too powerful and that the Constitution is not being interpreted in a way that protects the ‘checks and balances’ that was intended by federalism and dual sovereignty – what is also called the vertical separation of powers,” Hu told Truthout.

The “commandeering theory” was developed “under the Tenth Amendment to protect this principle of federalism – that the states have powers and can’t be ‘commandeered’ by the federal government.”

A central point of commandeering theory was that “federal commandeering of state personnel was also a commandeering of fiscal resources and implicitly involved the ability of one sovereign to force another to pick up the tab for its regulatory policies and enforcement schemes.”

But, says Hu, what about the increasing power of states that she argues is commandeering federal resources?

SB1070, which would, among other provisions, allow police officers to ask for the immigration papers of anyone suspected of being undocumented, would then have used the resources of the federal government to detain and deport immigrants caught in its dragnet.

In addition, said Hu, the legislation has impacted foreign relations, trade and the flow of migration.

“Given the impact of immigration policy on foreign and interstate commerce, international treaties, and foreign relations, the Court has concluded that controlling migration patterns is strictly the prerogative of the federal government,” said Hu. “Consequently, the growing proliferation of thousands of proposed state and local immigration laws should be examined doctrinally within a commandeering jurisprudential frame.”

When SB1070 was first signed into law by Gov. Jan Brewer in April 2010, it elicited a flurry of lawsuits. These included suits by the American Civil Liberties Union and the Mexican American Legal Defense and Education Fund, which focused on aspects of the law which the groups argued enforced racial profiling.

But the lawsuit which made its way to the Supreme Court, now under consideration, deals primarily with the doctrine of law called pre-emption, which says that federal law trumps state law.

But this may not be a strong enough argument to keep SB1070 from being implemented, says Hu: “Many of these state and local immigration laws are carefully crafted to survive federal preemption challenges through the application of what has been termed as ‘mirror image theory’ by legal scholars Gabriel ‘Jack’ Chin and Marc Miller.”

Under “mirror image theory,” said Hu, “as long as the state immigration law perfectly mirrors federal immigration law – the state and federal government can work together on immigration law.”

And these are the arguments that Arizona has been making thus far – “Arizona repeatedly explained that it is just doing what the federal government is doing.”

But to accept this argument threatens federal sovereignty, says Hu.

“The newfound impotency of traditional preemption doctrine under mirror image theory requires a different analytical framework for federal courts attempting to assess the legality and constitutionality of state and local attempts to control unwanted migration,” she noted.

Hu expects that these cases will become increasingly important as states continue to take immigration into their own hands.

Since SB1070 was written into law, both Alabama and Georgia have based immigration bills with similar, and in some cases more extreme, punitive immigration provisions. Alabama’s bill, for example, would force schools to check the immigration status of their pupils, and has already led to a rash of immigrant families keeping their children from attending school.

State and local governments have considered over 7,000 immigration-related proposals, said Hu. “In the first quarter of 2011, 1,538 immigration bills and resolutions were considered in all 50 states and in Puerto Rico.”

But this isn’t where the anti-commandeering principles should end. Programs like Secure Communities, which requires states to send all of their fingerprints to a federal database, could also be challenged under “anti-commandeering principles.”

“State efforts to commandeer federal immigration officers, as well as federal policymaking authority and federal fiscal resources in the immigration arena, are as constitutionally problematic as federal efforts to do the same to the states.”