Rosemary Jenks's picture


  by  Rosemary Jenks

After their admission that they haven't read the Arizona immigration enforcment law, here's a recommended reading list for President Obama, Attorney General Eric Holder, and Homeland Security Secretary Janet Napolitano. (Along with those who, not having read either federal immigration law or the Arizona law, believe it is “misguided” or “unconstitutional,” or have called for a boycott of Arizona, including Arizona’s own Rep. Grijalva and the City Councils of San Francisco, Los Angeles, and others)

Note: The Supreme Court has stated clearly and often that the U.S. Constitution gives Congress “plenary power” over immigration policy, meaning that Congress has virtually unlimited authority to regulate immigration into the United States. The Supremacy Clause of the Constitution says that federal law supersedes conflicting state law. In immigration matters, the courts have consistently held that this means that states may enact immigration-related laws that go as far as, but no further than, duly enacted federal laws, except in areas where Congress has specifically preempted state action. (The primary example of Congress preempting state action is 8 U.S.C. 1324b(h)(2), which prohibits states and localities from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens,” which is why states and localities must tie E-Verify mandates to the issuance of business licenses.) Congress has not preempted state or local action regarding any of the federal laws that the new Arizona law seeks to enforce, so long as the state law goes no further than existing federal law. The Arizona law was drafted meticulously to ensure that it complies fully with the U.S. Constitution and with federal immigration laws.

  1. The Arizona law (SB 1070, as amended by HB 2162)—don’t worry, it’s not that long, so it shouldn’t take more than an hour to read, and that’s if you read every single word. You really should read it, though, before you publicly state whether it is misguided (President Obama) or unconstitutional (AG Holder), or whether you would have vetoed it (Secretary Napolitano). For folks like Rep. Grijalva, reading it probably won’t make much difference for you, since your goal is open borders, rather than the rule of law.
    • Pay special attention to the FOUR separate prohibitions on racial profiling in the bill (11-1051(B); 13-1509(C); 13-2928(D); and 13-2929(C))
    • Also note that the only individuals who are authorized under the law to determine an alien’s immigration status are: (1) ICE officials; (2) CBP officials; and (3) law enforcement officers “authorized by the federal government to verify or ascertain an alien’s immigration status.”
  2. 8 U.S.C. 1302—This is the federal law, first enacted in 1940, that requires every alien over the age of 13 who plans to remain in the United States for 30 days or longer to register with the federal government and be fingerprinted.
  3. 8 U.S.C. 1304—This is the federal law that requires that “every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him” by the Federal government.
  4. 8 U.S.C. 1373—This is the federal law, enacted in 1996, that prohibits states and localities from enacting or adopting so-called sanctuary policies that prohibit state or local officials from communicating with Federal officials regarding the legal status of individuals with whom they come into contact while performing their official duties. It also requires federal immigration authorities to respond to all inquiries by state and local officials about the immigration status of individuals. This section is the reason that the Law Enforcement Support Center (LESC) was created—so that ICE officials would be available 24 hours a day, seven days a week to verify the immigration status of individuals at the request of state and local law enforcement officials for a duly authorized purpose.

Download a full version of the Fact Sheet for Arizona's new immigration enforcement law.

Read the law, as amended, in its entirety.

ROSEMARY JENKS is the Director of Government Relations for NumbersUSA

Interior Enforcement
Illegal Immigration
state policies

Updated: Wed, May 26th 2010 @ 4:48pm EDT

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