Putting aside the issue of whether the legislation is good policy (and all the subplots that consideration might give rise to), my question is - is the legislation Constitutional? Since I expect most posters will think and indicate that it is, I'll add some texture to the conversation from the outset by asking a more specific and pointed question. If you think it is Constitutional, how would you respond to the assertion that the legislation is preempted by federal law and thus unConstitutional per the Supremacy Clause?

Putting aside the issue of whether the legislation is good policy (and all the subplots that consideration might give rise to), my question is - is the legislation Constitutional? Since I expect most posters will think and indicate that it is, I'll add some texture to the conversation from the outset by asking a more specific and pointed question. If you think it is Constitutional, how would you respond to the assertion that the legislation is preempted by federal law and thus unConstitutional per the Supremacy Clause?

First I would answer your question with a question, and ask "Can you define the 'assertion' you refer to by being more specific about what federal law you feel preempts it, so we know we're on the same page?"

Putting aside the issue of whether the legislation is good policy (and all the subplots that consideration might give rise to), my question is - is the legislation Constitutional? Since I expect most posters will think and indicate that it is, I'll add some texture to the conversation from the outset by asking a more specific and pointed question. If you think it is Constitutional, how would you respond to the assertion that the legislation is preempted by federal law and thus unConstitutional per the Supremacy Clause?

I have no idea. I just know from my gut that it can't be wrong to make something that is a federal crime also a state crime.

I'm sure someone could effectively argue that if the fed refuses to make a provably serious effort to enforce a law, it has essentially abandoned enforcement altogether. If the fed cannot seriously engage in enforcing a law that it presumes to rest solely with them, it effectively negates the law. It undermines the purpose of the law.

It would be as though kidnapping were a federal offense - and the fed refused to arrest people for it.

Putting aside the issue of whether the legislation is good policy (and all the subplots that consideration might give rise to), my question is - is the legislation Constitutional? Since I expect most posters will think and indicate that it is, I'll add some texture to the conversation from the outset by asking a more specific and pointed question. If you think it is Constitutional, how would you respond to the assertion that the legislation is preempted by federal law and thus unConstitutional per the Supremacy Clause?

I would argue that the Supremecy clause clearly applies only to citizens of the United States whose rights may be abridged by the application of the Arizona law. Unless an immigrant has temporary protected status they have no protection as a defined class of people under U.S. law. And, unless the Arizona law somehow abridges the constitutional or statutory rights of a U.S. citizen the Arizona law stands. The latter being the weak link in the law.

It is impossible to project a situation that may occur where it may be found that this law abridges the rights of any U.S. citizen. However, it is very probable that one might surface.

Putting aside the issue of whether the legislation is good policy (and all the subplots that consideration might give rise to), my question is - is the legislation Constitutional? Since I expect most posters will think and indicate that it is, I'll add some texture to the conversation from the outset by asking a more specific and pointed question. If you think it is Constitutional, how would you respond to the assertion that the legislation is preempted by federal law and thus unConstitutional per the Supremacy Clause?
The Constitution Supremacy clause specifies that the Laws of the United States are the supreme Law of the land, any conflicting laws are invalid. As far as I know though it doesn't take into account a parallel state law which is attempting to accomplish the same thing as the federal law.

The Constitution Supremacy clause specifies that the Laws of the United States are the supreme Law of the land, any conflicting laws are invalid. As far as I know though it doesn't take into account a parallel state law which is attempting to accomplish the same thing as the federal law.

That's my thought. How can a State Law that is the same as the Federal Law, preempt Federal Law?

I can understand if the Arizona Law say, made it legal to come into Arizona and work without a green card... but it doesn't. It sim-ply tries to accomplish the same as the (unenforced) Federal Law.

Now, enforcement, that's a different issue...

That's my thought. How can a State Law that is the same as the Federal Law, preempt Federal Law?

I can understand if the Arizona Law say, made it legal to come into Arizona and work without a green card... but it doesn't. It sim-ply tries to accomplish the same as the (unenforced) Federal Law.

Now, enforcement, that's a different issue...I found this and would assume this is going to be the argument.


Field preemption
Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to “occupy the field” in that area of the law, i.e. to warrant an inference that Congress did not intend the states to supplement it. Gade v. National Solid Wastes Mgmt. Ass'n (http://en.wikipedia.org/wiki/Gade_v._National_Solid_Wastes_Mgmt._Ass%27n), 505 U.S. 88, 98 (1992). See also Rice v. Santa Fe Elevator Corp. (http://en.wikipedia.org/wiki/Rice_v._Santa_Fe_Elevator_Corp.). For example, the courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated. San Diego Bldg. Trades Council v. Garmon (http://en.wikipedia.org/w/index.php?title=San_Diego_Bldg._Trades_Council_v._Garmon&action=edit&redlink=1), 359 U.S. 236, 244 (1959); Machinists v. Wisconsin Emp. Rel. Commission (http://en.wikipedia.org/w/index.php?title=Machinists_v._Wisconsin_Emp._Rel._Commission&action=edit&redlink=1), 427 U.S. 132, 140-48 (1976).

That's my thought. How can a State Law that is the same as the Federal Law, preempt Federal Law?


I know almost nothing about law enforcement, except that I make sure my seat-belt is on when a cop flies up behind me.... but:

Isn't murder against federal law? How about stealing? Rape? Smoking weed. There's also state laws against these things, right?


If you get busted for murder, theft, rape or 420, you'll get arrested by city, county, or state police, you'll go through the state's court system against the State's Attorney, and you'll end up in a state prison: rather than a federal prison. From what I gather, Federal Law enforcement will generally let the state's law enforcement run around and do their thing, unless there's a pressing reason to swoop in and claim jurisdiction. (Maybe if you're running counterfeit money too?)


I see that happen in movies all the time. Local & State police getting squashed by the feds. :/

(Usually the feds end up looking like jackasses when it's all over, though).




Anyway, the point is, if all those things are against both Federal and State Law, maybe Immigration laws can be handled the same way.

One more good read on the subject The Supremacy Clause and Federal Preemption (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/preemption.htm)

The federal statutes "touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same subject."

I know almost nothing about law enforcement, except that I make sure my seat-belt is on when a cop flies up behind me.... but:

Isn't murder against federal law? How about stealing? Rape? Smoking weed. There's also state laws against these things, right?


If you get busted for murder, theft, rape or 420, you'll get arrested by city, county, or state police, you'll go through the state's court system against the State's Attorney, and you'll end up in a state prison: rather than a federal prison. From what I gather, Federal Law enforcement will generally let the state's law enforcement run around and do their thing, unless there's a pressing reason to swoop in and claim jurisdiction. (Maybe if you're running counterfeit money too?)


I see that happen in movies all the time. Local & State police getting squashed by the feds. :/

(Usually the feds end up looking like jackasses when it's all over, though).




Anyway, the point is, if all those things are against both Federal and State Law, maybe Immigration laws can be handled the same way. Federaly you're found guilty of violating the civil rights of the deceased instead of guilty of murder.

Putting aside the issue of whether the legislation is good policy (and all the subplots that consideration might give rise to), my question is - is the legislation Constitutional? Since I expect most posters will think and indicate that it is, I'll add some texture to the conversation from the outset by asking a more specific and pointed question. If you think it is Constitutional, how would you respond to the assertion that the legislation is preempted by federal law and thus unConstitutional per the Supremacy Clause?

What is pre-empted? This law does not define what an illegal immigrant is, nor does it usurp any federal authority. It simply says that the state has the right to enforce the federal law under strictly controlled circumstances. They used to, and someone (not the federal legislature) told them they didn't have that authority - so they gave themselves the authority. :shrug:

First I would answer your question with a question, and ask "Can you define the 'assertion' you refer to by being more specific about what federal law you feel preempts it, so we know we're on the same page?"

To be clear, I don't necessarily think it is preempted - I don't think it's completely clear whether it is or not. I ask the question for the sake of sparking discussion on the matter.

That said, it wouldn't be any particular federal law that preempts it, it would be a field (or fields) of law - immigration law generally, to include laws relating to aliens, both legal and illegal.

I have no idea. I just know from my gut that it can't be wrong to make something that is a federal crime also a state crime.

I'm sure someone could effectively argue that if the fed refuses to make a provably serious effort to enforce a law, it has essentially abandoned enforcement altogether. If the fed cannot seriously engage in enforcing a law that it presumes to rest solely with them, it effectively negates the law. It undermines the purpose of the law.

It would be as though kidnapping were a federal offense - and the fed refused to arrest people for it.

That's a legitimate argument, and one that I expect to be made when these laws are challenged. However, I don't know that there's any existing legal basis on which to assert that insufficient federal enforcement of federal law somehow means that state law pursuing more substantial enforcement isn't preempted, even if it otherwise would have been (i.e. if it would have been preempted had there been sufficient federal enforcement of federal law).

What a can of worms that would open. How does a court decide whether laws are being sufficiently enforced?

The Constitution Supremacy clause specifies that the Laws of the United States are the supreme Law of the land, any conflicting laws are invalid. As far as I know though it doesn't take into account a parallel state law which is attempting to accomplish the same thing as the federal law.

That's my thought. How can a State Law that is the same as the Federal Law, preempt Federal Law?

I can understand if the Arizona Law say, made it legal to come into Arizona and work without a green card... but it doesn't. It sim-ply tries to accomplish the same as the (unenforced) Federal Law.

Now, enforcement, that's a different issue...

Well, there are subtle and technical differences between Arizona law and federal law - they are not precisely the same. Arizona law goes beyond federal law in some regards. That said, that's not the only relevant issue - the question of preemption (i.e. state law being invalidated by the existence of federal law dealing with the same subject) does not hinge on whether or not the state law is in relative, or even perfect, harmony with federal law. 'Conflict' is only one basis for preemption.

Preemption jurisprudence seems fairly nuanced, and in some regards still a little vague, but it tends to focus on the intent of Congress. Did Congress intend to preempt state law - on a particular matter, for an entire field of law, or when it came to particular aspects of law? That intent can be express or implied. With regard to assessing implied intent, one consideration is how fully federal law 'occupies the field'. What is the scope of federal law - what ground does it seek to cover? When it comes to immigration and matters related to aliens, federal law is fairly extensive. While I won't pretend to know the answer to the question - is Arizona's new law preempted by federal law - it's not reasonable to deny that there's much room, and valid bases, on which to argue that it is.

I'd add this - if Congress doesn't want Arizona's new law to be valid, it could make sure that it isn't. It could pass legislation stating something to the effect that it is the intention of Congress that all state laws regarding the regulation of immigration, the treatment of legal and illegal aliens, and the enforcement of federal laws regarding the same, be preempted by federal laws regarding the same. If Congress did that, then there would be little or no question that the Arizona law (at least, part of it) is unConstitutional. For political reasons, i don't think Congress would do that though.

Well, there are subtle and technical differences between Arizona law and federal law - they are not precisely the same. Arizona law goes beyond federal law in some regards. That said, that's not the only relevant issue - the question of preemption (i.e. state law being invalidated by the existence of federal law dealing with the same subject) does not hinge on whether or not the state law is in relative, or even perfect, harmony with federal law. 'Conflict' is only one basis for preemption.

Preemption jurisprudence seems fairly nuanced, and in some regards still a little vague, but it tends to focus on the intent of Congress. Did Congress intend to preempt state law - on a particular matter, for an entire field of law, or when it came to particular aspects of law? That intent can be express or implied. With regard to assessing implied intent, one consideration is how fully federal law 'occupies the field'. What is the scope of federal law - what ground does it seek to cover? When it comes to immigration and matters related to aliens, federal law is fairly extensive. While I won't pretend to know the answer to the question - is Arizona's new law preempted by federal law - it's not reasonable to deny that there's much room, and valid bases, on which to argue that it is.

I'd add this - if Congress doesn't want Arizona's new law to be valid, it could make sure that it isn't. It could pass legislation stating something to the effect that it is the intention of Congress that all state laws regarding the regulation of immigration, the treatment of legal and illegal aliens, and the enforcement of federal laws regarding the same, be preempted by federal laws regarding the same. If Congress did that, then there would be little or no question that the Arizona law (at least, part of it) is unConstitutional. For political reasons, i don't think Congress would do that though.
I learned a couple of things while I was reading up on preemption rules, that's why I said one thing in my first post and then in the second post gave reasoning why my first post may be wrong. As far as the original question goes I think that the feds are going to use the field preemption argument to try to invalidate the Arizona law, but I believe that Arizona has a valid argument that the feds half hearted attempt at controlling the borders has nullified their "occupying" the field.