Can President Obama Preempt Arizona's Ability to Respond to Illegal Aliens?J. Michael Sharman<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
 
 
President Obama's lawsuit against Arizona's controversial new law on illegal aliens states that the federal government has so "preempted" the field of immigration law that there is no space left in which the States can legislate regarding the illegal aliens within their borders.
The Obama administration has asked for an injunction against the new law. "S.B. 1070 irreparably undermines the federal government's control over the regulation of immigration and immigration policy," says President Obama's request.[i] "It impermissibly attempts to set immigration policy at the state level and is therefore preempted."[ii]
Congress does indeed have the sole authority to determine how naturalization is to occur: "The Congress shall have power," says Article 1, Section 8 of the Constitution, "To establish an uniform rule of naturalization… throughout the United States."[iii]
Thus, the States cannot legislate on the entry or exit of aliens, but as seen in the first and last sections of SB 1070, their new law[iv] regarding illegal aliens, Arizona's legislators do not override federal law, they adopt it:
A. No official or agency of this state or a county, city, town or other political subdivision of this state may adopt a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.
and
J. This section shall be implemented in a manner consistent with Federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.
 
In between those two bookends, the new law provides that if an alien is convicted of a crime while "unlawfully present" in Arizona, they will be turned over to the federal authorities.[v]
The main U.S. Supreme Court opinion on this subject is De Canas v. Bica, 424 U.S. 351 (1976). The California labor law in that case required that "[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers."
The U.S. Supreme Court affirmed California's law and noted that, "Power to regulate immigration is unquestionably exclusively a federal power. But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised."[vi]
In 2004, seven Virginia state colleges and universities were sued by the Mexican American Legal Defense and Educational Fund on behalf of illegal aliens who wished to become students. The Federal District Court, in Equal Access Education v. Merten, ruled against the undocumented students, and held that: "There is no Supremacy Clause bar to these institutions' offering or denying admission to illegal aliens, provided, with respect to the latter, that they use only federal standards in doing so and do not systemically or consistently misapply those standards."[vii]
The logical conclusion of the Obama administration's preemption argument would unconstitutionally remove the healthy tension placed between the state and federal sovereigns by the Tenth Amendment to the Constitution, which says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."[viii]
America is best protected not by an all-powerful central government, but by a strong system of constitutional checks and balances between each of our local, state, and federal governments.
 

[i] "PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT THEREOF" p. 47 http://www.scotusblog.com/wp-content/uploads/2010/07/DOJ-AZ-brief-7-6-10.pdf

[ii] "PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT THEREOF" pp. 12-13 http://www.scotusblog.com/wp-content/uploads/2010/07/DOJ-AZ-brief-7-6-10.pdf

[iii] <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />U.S. Constitution  U.S. Con. Art. 1, § 8 (1789)

[iv] State of Arizona, Senate, Forty-ninth Legislature, Second Regular Session
2010 Senate Bill 1070,  http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf

[v] State of Arizona, Senate, Forty-ninth Legislature, Second Regular Session
2010 Senate Bill 1070,  http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf

[vi] De Canas v. Bica, 424 U.S. 351, 354-355 (1976), internal citations omitted.

[vii] Equal Access Education v. Merten, 325 F. Supp. 2d 655, 673 (E.D. Va. 2004)

[viii] U.S. Constitution, 10th Amd. (1791)