The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration. Given that federal policy and the supremacy of federal law, one could argue that it is not within the state's proper power to dictate a different policy and impose it on the federal government.That boils down to this: a state can't have a foreign policy different than the federal government. In the Arizona case, this relies on the laxity of enforcement to make the case. It's not that the laws aren't there, it's that the feds don't bother to enforce them so the state can't either. In a court I would think that they would take the written law as the stated policy. If they didn't, they'd have to spend a lot of time worming their way through interpretations of actions.
All in all, it still seems like a pretty flimsy case for the feds.
6 comments:
Actually, that's a good question: Let's say that Canada decided to invade Michigan, and for whatever reason, the Feds decided to let it pass. Would Michigan's governor then be within their rights to call up the state's contingent of the National Guard to repel the invasion?
Doesn't the state governor control the National Guard? I would think that the state could sue the Federal government for not protecting the borders - something that has been suggested as a countersuit in this casse.
If illegals are a net positive to the economy, why does the entire state of Arizona want them removed?
It could be an interesting exercise to identify other "federal" tasks that are effectively duplicated in state law, and explore whether states should drop their laws and enforcement.
For example if federal law covers food safety, should the states abandon their efforts to write and enforce state food safety laws? Who needs a California "A" rating when someone in Washington has passed a law mandating safe food?
"Anonymous" brings up an interesting point. Using the Fed's logic, since child pornography laws are mostly federal in nature, does that mean the states should immediately stop investigating those crimes? What interstate about drug trafficing? Or the "No Child Left Behind" policies?
I've seen some weak claims for litigation before but this just takes the cake.
KT,
Please see my blog post for a full discussion. In summary, the reason that Arizona is within their rights is that the feds have already opened the door to state assistance in enforcement through prior legislation. Nothing in the Arizona law exceeds that writ.
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