This note argues that the conflict preemption analysis of Section 2(b) (which codifies the mandatory police practices) is not an adequate barrier to prohibiting Arizona’s and similar discriminatory state police practices. The district court, when considering Section 2(b), applied a flawed preemption analysis, making it unclear how SB 1070 will fare in future decisions. The preemption holding in United States v. Arizona has a major flaw, which led to two failings in the analysis. This was the reading of the second sentence of Section 2(b) which was read against the entire policy of SB 1070, an anti illegal immigration bill with no provision based on sanctions or arrests of legal immigrants or natural born citizens. The reason the district court read it this way, was because the court also considered the original draft of the statute which made this understanding plausible. Under this analysis the actual burden on legal immigrants could not be adequately determined by the district court. Likewise the court may have assumed an exaggerated impediment to ICE and LESC’s function, believing the percentage of status checks would be far greater than what the statute actually mandates. This choice of interpretation may have been due to a lack of actual evidence of burdens on legal immigrants at the time or the fact that it was the only way to establish “no set of circumstances” for constitutionality
Therefore SB 1070 will actually turn on whether it violates other Constitutional underpinnings of our jurisprudence, namely the licensing provision’s possible violation of the dormant commerce clause and the entirety of Section 2’s imposition of a burden common to the many states onto the few. An understanding of these analyses is necessary if the federal government wants to avoid a plethora of similarly exclusionary state policies.
The first applicable analysis is the dormant commerce clause which “prohibits economic protectionism-that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” The licensing provision of Section 2(b) establishes that a suspected illegal immigrant is presumed lawful if he can provide an Arizona driver license, or non-operating license (as well as tribal identification) but identification from another state suffices only if that state requires proof of legal presence before issuance. State’s that don’t require legal presence before issuing identification include neighboring New Mexico and Utah as well as Washington and Maryland. This provision may restrict interstate movement through Arizona of out of state legal immigrants while favoring in state immigrants as well as those states licensing provisions with which Arizona agrees. If that is found to be the case, it would violate the dormant commerce clause as an impermissible state regulation of out of state citizens that prohibits the flow of interstate commerce. As a rational purpose is required by Kassel, the entire scheme of the statute isn’t clear on how this licensing provision actually would stop illegal immigration in the state considering if one does have a New Mexico license, and is traveling through Arizona, whether illegal or not it doesn’t follow that the licensee would be traveling through the state to establish domicile there. Furthermore, this would violate the restrictions of mobility and local market access, given continual recognition and support by the Supreme Court, as well as the prohibition against states from prohibiting the movement of people and property across its borders in Edwards v. California by discriminating against other states, their citizens and their legal immigrants
The second applicable analysis is what is known as the dormant immigration power. Because the commerce clause is viewed as exclusively federal with no concurrent enforcement permitted by the states, the legal profession has been leery of applying this similar understanding to a Congressional power. Yet when searching for an analysis that would prohibit policies similar to Arizona, this idea of comparing the dormant analysis to the immigration power has received some support when it forces immigrants out of the state into other states, being coined the “dormant immigration power.” This application is sensible, as people have been deemed articles of commerce and the restriction of their interstate movement has been prohibited Edwards v. California. The resulting rationale, then, comes into play where one state regulates immigration in a way that forces aliens into a second state. It is at this point in which states like Arizona would be deemed to have violated their grants of power by forcing the costs of immigration into another state by enforcing a regulation without providing any voice or concern for the legal and illegal alien populace. This is not to say strict policy can’t exist, but Arizona has effectively done its best to deter immigrants, legal and illegal from being in its state. This is why the negative external effect of a forced burden, or “dormant immigration” analysis is helpful and should be adopted because it is not based on a system of uniform power or a decentralization of power to the states, but tries instead to be as malleable as possible encourage both sovereigns to support each other.
The nature of SB 1070 will continue to have, an extraordinarily negative effect on citizens and states themselves. That is why a search for a separate rationale is necessary, like the Dormant Commerce Clause’s prohibition of the harmful favoring of a states own economic interests at the cost of others, or the impermissible shifting of burdens onto other states. Without the use of these doctrines, the only resolution will come from Congress congregating to foster a more effective policy. Unfortunately a comprehensive reform policy, that has been touted for years, may seem a long way off. The primary concern of each individual state, in the interim, should be to establish an ambition to avoid ineffective policy that does not consider the importance of a balanced immigration scheme.
Available at: http://works.bepress.com/brian_loss/1/