Solicitor General Donald Verrilli precipitously changed course at the Supreme Court last Wednesday, as the justices’ skepticism toward the Obama administration’s main argument against Arizona’s 2010 immigration law became painfully clear. Until last week, the administration had argued that SB 1070 was pre-empted by federal immigration authority. “Pre-emption” doctrine holds that a state law conflicts with federal law if it stands as an obstacle to some congressional purpose.
The White House’s pre-emption argument against SB 1070 was always ludicrous, since the law’s central provision merely conforms to a 1996 congressional mandate that federal immigration authorities and local governments cooperate in the “apprehension, detention or removal of [illegal] aliens.” In furtherance of such cooperation, Congress required immigration officials to respond to all local inquiries regarding the status of an alien — a requirement that presupposes that local law enforcement officers will be making such inquiries in the first place.
This is precisely what section two of the Arizona statute provided for — that police officers and sheriff’s deputies can question someone about his immigration status and confirm that status with federal immigration authorities. It applies only when the officer has reasonable suspicion that the person is in the country illegally, only if doing so is practicable, and only during a lawful stop to investigate a nonimmigration offense. The idea that such inquiries conflict with a congressional purpose is hard to square with the fact that Congress called for them in 1996.
As the justices expressed their incredulity toward the administration’s pre-emption argument, Verrilli shifted to a racial profiling argument that was not even mentioned in the administration’s briefs. The racial profiling charge requires hypothesizing scenarios in which Arizona’s police officers violate the explicit terms of SB 1070 by pulling over Hispanics and questioning them about their immigration status on the basis of their ethnicity alone.
But the possibility that a law may be abused is not a sufficient reason to invalidate it — especially when, as here, it has been enjoined before ever taking effect. It is just as easy to imagine scenarios in which SB 1070 would be lawfully applied: A driver runs a red light, for example, but upon being stopped, provides no driver’s license or other government ID; he speaks no English and says he is from Mexico, but does not have a green card or other valid immigration papers on him. At that point, the cop calls the federal immigration clearinghouse to see if the driver is in the country legally. Arizona’s statute should be allowed to operate to see exactly how it plays out in practice.
If the court does enjoin some parts of SB 1070, it will only be because the justices extend pre-emption doctrine to cover executive policy and not just congressional law. For example, SB 1070 also allows state officials to fine or briefly jail aliens for not having their immigration papers — exactly mirroring federal law. But what if Immigration and Customs Enforcement simply does not want to enforce this written law? If the state enforces that part of SB 1070 against a foreign national who lacks papers, it would not conflict with congressional law, but it would conflict with the executive branch’s de facto policy of amnesty for most illegal aliens.
Arizona cannot deport illegal immigrants, but it can impose minimal sanctions upon them. Were the court to hold such a sanction illegal in cases where the feds want to ignore an alien’s unlawful presence in the country, the court would be making a broad — although not clearly ungrounded — reading of pre-emption doctrine. The better course would be to lift the injunction against SB 1070 and let the political process work itself out.
Heather Mac Donald is a John M. Olin fellow at the Manhattan Institute and a contributing editor of City Journal.
