A federal lawsuit is never a laughing matter – especially when the U.S. Department of Justice signs the complaint. But the Obama administration's complaint against Arizona faces serious obstacles in the federal courts.
The administration needs to show that S.B. 1070, Arizona's law authorizing state officials to enforce federal immigration law, is "preempted" – that it runs afoul of the Constitution's Supremacy Clause, which confirms that federal law supersedes state law. To that end, the complaint's opening paragraphs stake an uncontroversial claim: "[i]n our constitutional system, the federal government has preeminent authority to regulate immigration matters."
Certainly no one would dispute that the federal government is the "preeminent" architect of the nation's immigration policy. But it is quite another thing to say that federal law, through the Constitution's Supremacy Clause, preempts S.B. 1070. In U.S. v. Arizona, the administration will have to prove the latter point – and that will be no small task.
The administration's primary obstacle is De Canas v. Bica (1976), in which the Supreme Court emphatically declared that federal immigration laws did not prohibit the states from enforcing the policies embodied by those federal immigration laws. (In that case, the state law was a California prohibition against the employment of illegal aliens.) The Court reviewed the text and history of the federal Immigration and Nationality Act, and found no indication that "Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular." According to the Court, states may enforce laws consistent with federal immigration laws, so long as the state does not "impose additional burdens not contemplated by Congress."
Arizona drafted its laws with De Canas firmly in mind, as S.B. 1070's architect, law professor Kris Kobach, explained in a recent interview. In fact, Arizona's recent brief in a separate lawsuit makes this very point. Last month, Arizona moved to dismiss Friendly House v. Whiting, a class action lawsuit brought against S.B. 1070 by the ACLU and other groups. Responding in its motion to dismiss the lawsuit that was based on arguments that S.B. 1070 improperly regulates immigration, Arizona drew De Canas's crucial distinction: The ACLU is "confusing enforcement of federal immigration regulations (which S.B. 1070 seeks to accomplish) with enactment of Arizona-specific 'regulation of immigration' (which federal law would preempt)."
Arizona's brief lays out in straightforward detail the absence of any of the traditional bases for federal preemption of state law. As De Canas explained, the federal immigration statutes lack an express statement that federal law prohibits states from enforcing federal immigration law. Similarly, federal law does not so thoroughly "occupy the field" of immigration regulation that it leaves no room for state involvement in the federal statutes' enforcement. Finally, S.B. 1070 does not "conflict" with federal law: It neither interferes with the accomplishment of federal immigration statutes nor creates legal standards that contradict the federal statutes.