Arizona May Be Able to Regulate the Movement of Unauthorized Aliens, Consistent with Federal Law

Written by Gary K. Silberman, Esq.

This section attempted to make it illegal for a person who is already violating the law to knowingly or recklessly: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. The United Stated alleged that this part of the statute should be preempted as an impermissible regulation of immigration and that the provision violated the dormant Commerce Clause.

While the “[p]ower to regulate immigration is unquestionably exclusively a federal power[,]” the court acknowledged that the mere fact that aliens are the subject of a state statute does not necessarily mean that the statute is attempting to regulate immigration. The court found that this section of the law does not attempt to regulate who should or should not be admitted into the United States, and it does not regulate the conditions under which legal entrants may remain in the United States. By so finding, the court found that the United States was not likely to prevail on its claim that A.R.S. § 13-2929 is an impermissible regulation of immigration.

The court also discussed the dormant Commerce Clause. The Commerce Clause give Congress the power to “regulate Commerce . . . among the several States.” This clause has been interpreted by the Supreme Court “to have a ‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.” Where a state enacts a law that implicates the dormant Commerce Clause, the court determines whether the state is treating in-state and out-of-state economic interests differently and, if so, whether that differential treatment benefits the in-state interests and acts to the detriment of out-of-state interests. Even if this is the case, statutes directed at legitimate local concerns do not violate the dormant Commerce Clause unless the burden on interstate commerce is clearly excessive in relation to the local benefits.

The court then reviewed the claim that the law “offends the [d]ormant Commerce Clause by restricting the interstate movement of aliens” and found that since the conduct prohibited by state law was already prohibited by federal law, no additional burden on interstate commerce was thereby created. Moreover, the court found that the statute did not discriminate between in-state and out-of-state economic interests or burden out-of-state interests in a way that benefits in-state interests. Finally, the court found that the statute is directed at legitimate local concerns related to public safety. These findings resulted in a very high standard for finding the statute facially unconstitutional. In order to so find, the court would have had to have found that the the burden imposed on interstate commerce was clearly excessive in relation to the putative local benefits. The court compared the local benefit of making this conduct illegal to the incidental burden on interstate commerce and found that the United States was unlikely to succeed on its claim that A.R.S. § 13-2929 violates the dormant Commerce Clause or is an impermissible attempt to regulate immigration.

Provisions of the Arizona Law That Impose Penalties on Unauthorized Alien Workers Also Enjoined

Written by Gary K. Silberman

The next section enjoined by the court criminalizes any attempt to obtain work or any work as an employee or independent contractor by an unauthorized alien. The United States argued that, like other sections of this law, this provision was preempted by federal law, in that Congress chose to not impose criminal penalties for these actions. Arizona claimed that states possess broad authority to regulate employment so as to protect workers. The state’s argument was bolstered by a Ninth Circuit decision holding that where a state chooses to sanction employers who hire unauthorized workers, a presumption exists that federal preemption does not apply. [Read more]

State Penalties for Violation of the INA

Written by Gary K. Silberman, Esq.

Section 3 of the Arizona statute makes it a misdemeanor to willfully fail to complete or carry an alien registration document, which basically creates a state crime for a violation of a federal law. The unconstitutionality of this section was easy to determine. The Supreme Court has already found that the “power to restrict, limit, regulate, and register aliens” is not a power to be shared by the states and the federal government. [Read more]

Immigration Status Checks

By: Attorney Gary K. Silberman, Esq.

Section 2(B) of S.B. 1070 provides that when a lawful stop, detention or arrest is made by an Arizona law enforcement official and reasonable suspicion exists that the person is unlawfully present in the United States, a reasonable attempt must be made to determine the immigration status of the person. The court found that this provision should be enjoined, based on a number of reasons. [Read more]

Judge Enjoins Arizona from Enforcing Most of New Immigration Law

Written By: Gary K. Silberman, Esq.

The day before the Arizona immigration law was set to go into effect, a federal judge prevented the key provisions of that law. The order that forbids Arizona from enforcing that law is a preliminary injunction, which means that the court will still have a trial on the constitutionality of the law, but until then the controversial sections of the law are unenforceable. In order to enter a preliminary injunction, the court had to find (1) that the plaintiffs (the parties that brought the suit) are likely to win at trial, (2) that if the law went into effect, there was a substantial chance that irreparable harm would occur, (3) that the balance of equities tips in its favor and (4) that a preliminary injunction is in the public interest.

Over the next several blogs, we’ll review the provisions that were enjoined and take a look at why the judge found that those provisions were problematic enough to warrant an order preventing them from going into effect until a trial can take place.

Effective Immigration Control

Written By: Gary K. Silberman, Esq.

On the heels of yesterday’s post about the the Arizona immigration law and the controversy surrounding it, here is an example of the federal government’s efforts to focus immigration enforcement on those areas that are likely to have a greater impact on immigration control, rather than focusing on those areas that create controversy and publicity. [Read more]

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