Let's talk about the new Arizona immigration laws

[Tilted (Premo)]

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?

[TurboK9]

Originally Posted by Tilted

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?"

[SamSpade]

Originally Posted by Tilted

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.

[exnodak]

Originally Posted by Tilted

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.

[Merlin99 (Premo)]

Originally Posted by Tilted

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.

[TurboK9]

Originally Posted by Merlin99

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...

[Merlin99 (Premo)]

Originally Posted by TurboK9

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, 505 U.S. 88, 98 (1992). See also 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, 359 U.S. 236, 244 (1959); Machinists v. Wisconsin Emp. Rel. Commission, 427 U.S. 132, 140-48 (1976).

[Toxick]

Originally Posted by TurboK9

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.

[Merlin99 (Premo)]

One more good read on the subject The Supremacy Clause and Federal Preemption

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."

[Merlin99 (Premo)]

Originally Posted by Toxick

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.