In a recent column pointed out to me earlier tonight by an online friend, I note that firebrand columnist Ann Coulter, buried in a fair amount of invective and taunting (which is, after all, her trademark) has come across a rather interesting piece of jurisprudence which I have not yet seen raised by anyone else in the discussion about the Arizona immigration law. Specifically, she cites the case of De Canas v. Bica (1976) 424 U.S. 351. That it is right-wing polemicist Ann Coulter is interesting because of her notoriety, but the argument, and the law underlying the argument, is what needs to be dealt with regardless of who cited it; and “good on” to her for finding it.
Now, Coulter doesn’t get everything right. I see two places where I think Coulter gets her Con law quite wrong:
State laws are pre-empted by federal law in two circumstances: When there is a conflict — such as “sanctuary cities” for illegals or California’s medical marijuana law — or when Congress has so thoroughly regulated a field that there is no room for even congruent state laws.
There is a third category of pre-empted areas which Coulter ignores. The Constitution gives certain legal subject matter areas and certain powers exclusively to the Federal government: for instance maintaining the military, coining money, running a post office, bankruptcy, copyright — and a uniform rule of naturalization, which is what concerns us; naturalization necessarily and logically includes the concept of immigration. What’s more, Coulter gets something else wrong here, looking as hard as she does for a “gotcha” that she can readily communicate to a lay audience:*
If Obama thinks there’s a conflict, I believe he’s made a damning admission. There’s a conflict only if the official policy of the federal government is to ignore its own immigration laws.
But as I pointed out in my earlier piece, the conflict may be a matter of method and priority rather than of substance or result. As the nation’s top federal law enforcement officer, the President and not the governor of a state gets to say how Federal law enforcement goes about doing its job. Congress gets to say what that job is, to be sure, but the President is charged with the faithful execution of those laws.
This will become important later in the post, because it looks to me like Coulter gets it right on the issue of legislative pre-emption and her cite of De Canas is piercing to the argument actually offered by the Federal challenge to Arizona’s law.
In De Canas, there was a facial challenge to a California state labor law that made it illegal for a California employer to knowingly hire someone who was neither a citizen nor a green card holder. By a vote of 8-0, with Justice William Brennan writing the opinion and Justice John Paul Stevens not participating, the Court upheld California’s law as not pre-empting the Federal law of immigration. The really interesting language for contemporary debate is found early on:
Power to regulate immigration is unquestionably exclusively a federal power. See, e.g., Passenger Cases, 7 How. 283 (1849); Henderson v. Mayor of New York, 92 U.S. 259 (1876); Chy Lung v. Freeman, 92 U.S. [424 U.S. 351, 355] 275 (1876); Fong Yue Ting v. United States, 149 U.S. 698 (1893). But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised. For example, Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 415-422 (1948), and Graham v. Richardson, 403 U.S. 365, 372 -373 (1971), cited a line of cases that upheld certain discriminatory state treatment of aliens lawfully within the United States. Although the “doctrinal foundations” of the cited cases, which generally arose under the Equal Protection Clause, e.g., Clarke v. Deckebach, 274 U.S. 392 (1927), “were undermined in Takahashi,” see In re Griffiths, 413 U.S. 717, 718-722 (1973); Graham v. Richardson, supra, at 372-375, they remain authority that, standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.
Shepherdizing De Canas yields the result “Some negative history but not overruled.” Negative history includes “Declined to Extend by League of United Latin American Citizens v. Wilson, 908 F.Supp. 755 (C.D.Cal. Nov 20, 1995)” and five cases that I haven’t looked up which are listed as “Distinguishing”: Rogers v. Larson, 563 F.2d 617 (3rd Cir. (V.I.) 1977); National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. (Mass.) 1999); Kim v. Regents of University of California (2000) 80 Cal.App.4th 160; Garrett v. City of Escondido, 465 F.Supp.2d 1043 (S.D.Cal. 2006); and Villas at Parkside Partners v. City of Farmers Branch, 496 F.Supp.2d 757 (N.D.Tex., 2007).
Perhaps the best summary, however, comes from another Brennan opinion not long after De Canas dealing with state laws that piggyback on Federal immigration laws, Plyler v. Doe (1982) 457 U.S. 202. In Plyler, the issue was whether the state of Texas could exclude children present in the country without documentation from attending public schools, and the Supremes said, by a 5-4 vote, no, that violates the Equal Protections Clause. But De Canas said that just because a state’s law acknowledges and discriminates against a party’s status as an immigrant (documented or not), that is not in itself enough to trigger a violation of the Equal Protections clause! So, what was the difference between the result in Plyler and the result in De Canas? Here is how the Plyler majority explained it:
As we recognized in De Canas v. Bica, 424 U.S. 351 (1976), the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal. In De Canas, the State’s program reflected Congress’ intention to bar from employment all aliens except those possessing a grant of permission to work in this country. Id., at 361. In contrast, there is no indication that the disability imposed by 21.031 [the Texas law] corresponds to any identifiable congressional policy. The State does not claim that the conservation of state educational resources was ever a congressional concern in restricting immigration. More importantly, the classification reflected in 21.031 does not operate harmoniously within the federal program.
Plyler, 457 U.S. 202, 225-226. So, the problem was that Texas went further than Congress in denying public school to undocumented alien children, where California had gone only as far as Congress had in denying undocumented alien workers the opportunity to seek employment.
Well, you may disagree with me or think I use bad reasoning, but I nevertheless pride myself on trying to maintain intellectual integrity and to acknowledge facts and laws that conflict with what I have to say head-on. And De Canas is one of those things I have to deal with in that way. De Canas is still good law and has not even been particularly whittled down very much, so far as I can see.
As I’ve already acknowledged here on this blog, the law we’re talking about here is incrementally stronger but not qualitatively different than Federal immigration law. On its face, Arizona has not attempted to alter, extend, or supplement Federal immigration law. The fact that the Arizona law is aimed at only the issue of whether a particular person is lawfully in the U.S. means that it is, on its face, closer to the De Canas than the Plyler analysis. That means that the Obama Administration challenge to the Arizona law as violating Congress’ exclusive power to legislate about immigration, predicated as it is upon legislative pre-emption, cannot be squared with precedent in De Canas. The Federal government’s power under Article I appears to have been respected and not attacked by Arizona.
But in that same post, I argued that Arizona is attempting to force the Federal government’s hand at enforcement, and that bothered me as a usurpation of Article II power — the power of the President to prioritize Federal law enforcement. As even defenders of the Arizona law both here and in many other places have pointed out, the Federal government doesn’t have to do anything in response to Arizona. At one level, this suggests that Federal prioritization remains intact and if that varies with the Arizona state enforcement, well, federalism is a two-way street and the Feds can’t tell Arizona what to do with state laws, either.
That’s a great thought and if we lived in a universe where law enforcement could deal with things like this with low transaction costs, I might agree with it. But the US Immigrations and Customs Enforcement Agency (ICE, the post-9/11, post-Department of Homeland Security reorganized successor to the previously better-known INS) does not operate without transaction costs. Every referral from state law enforcement needs to be dealt with in some way, and each referral represents a transaction cost.
The genesis of the law, and the reality of implementing the law, are important too. We’re looking at a law that was passed specifically in reaction to two primary issues cited by its advocates: first, a crime wave that isn’t really happening (particularly not the decapitations that aren’t happening), and second, a perceived laxity on the part of Federal law enforcement to enforce immigration laws, which is probably real enough based on economic necessities of the economy as a whole. But the point is that the Arizona legislature has attempted to set a higher priority on the issue than the President; it is for the President and not the Arizona legislature to determine how federal law enforcement assets are to be allocated.
Which leads us to the real political objective here, as Coulter’s column demonstrates. That is, this law is intended to make the incumbent President look bad — Republicans looking for the moatdigger vote want to say that the President is refusing to enforce the law and that this is somehow hurting us.
After all, while it may not be politically popular to do so, the President is within his discretion to place so low an enforcement priority on a given subject matter as to effectively render the law he is asked to enforce not a law at all. Here in California, for instance, there is a tacit policy in place to not go after medical marijuana dispensaries despite the fact that they are violating Federal law. Now, a President who does such a thing may pay a political price for doing so, and a future President can alter that prioritization as he or she sees fit. But this is no different in principle than allowing a traffic cop who sees a cracked tail light while writing a speeding ticket to also decide, for whatever reason, to let the equipment violation go without so much as a warning.
And let us not forget that there is some evidence out there that law enforcement makes these kinds referrals based on racial profiling, and the potential for abuse by police with a law is substantial. I’d agree that we can’t judge the validity of a law only on its potential for being abused as a general proposition, but at the same time we don’t ever lose freedom by refusing to concede the good faith of law enforcement, seeing as the law enforcement community has failed to inspire confidence in their own veracity and good faith in reporting on their own activities.
So I’m sticking to my earlier opinion — the Arizona law may be congruent, or at least consistent, with the Federal law about immigration. But it is probably an attempt to force Federal prioritzation in enforcement of the laws. The violation is, or at least ought to be, considered an attempt to usurp the President’s the Article II power to enforce immigration laws as he sees fit. To get to that result, you need to do more than look at the legislation on the books, you need to understand the realities on the ground and the political background of the law. What’s more, my theory seems to be something kind of new. I can’t find either positive or negative treatment of it in case law because, if it’s been examined, it’s been examined in terms and wording very different than any of the searches I’ve been using. I’ve probably not done as great a job of explaining it as I might have hoped for and damn it, it’s late at night and I need to get some sleep.
But while I still think that the Arizona law intrudes on this priority-setting aspect of the President’s Article II authority, I have to concede that learning about and studying the De Canas case leads me to believe that on the grounds presented in the challenge pending before the courts (Article I pre-emption), the state of Arizona has a substantial chance of prevailing on the merits of the pre-emption question so long as it can demonstrate that its law, as written, mirrors Federal law.
And as a final caveat that I hope does not need repeating, not a word of this has anything to do with whether the law is a good idea or a bad idea. You can think a law is a good idea but one which violates the Constitution (i.e., criminalizing the burning of the U.S. flag); you can think a law is a bad idea but nevertheless is consistent with the Constitution (i.e., income tax). I want to focus discussion on whether Arizona has exceeded its Constitutional powers, not on whether illegal immigration is bad.
* Ms. Coulter holds a law degree from the University of Michigan, which she received with high academic honors, and was admitted to practice in New York. Part of her pre-punditry career included helping draft bills relating to immigration policy for then-Senator Spencer Abraham. So she’s not just throwing bombs for the sake of throwing bombs (which I might accuse her of in some other context); this academically-distinguished lawyer has a substantial policy background in this area.