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.