Our amicus brief in support of Arizona did what Arizona chose not to do -- explain the Founders' original constitutional plan.
First, we pointed out that the federal government's power over immigration is not among those enumerated in the Constitution, but one that has been grafted onto the "naturalization" power by the Court as a power "inherent in sovereignty, and essential to preservation."
Then, we argued that as a nation of dual sovereignty each State, like the national government, has the same inherent power of sovereignty, including the power of self-preservation.
Third, we noted that while the national government's power was supreme in the regulation of its international boundaries, the States' internal boundaries remained in the power of the States.
Finally, we observed that, with respect to a state's internal boundaries, Article IV, Section 2 and the Fourteenth Amendment expressly limited each state's power as applied to citizens of other states and citizens of the United States, but not with respect to citizens of foreign nations.
Justices Scalia and Kennedy's questions seemed to track our brief's line of reasoning, asking whether Arizona had the power to exclude aliens who are not legally in the country. If so, then Arizona's policy of enforcement by attrition is perfectly permissible, General Verrilli's claims to the contrary notwithstanding.
If Arizona has retained its inherent sovereign authority to defend its internal borders, except as specifically limited by the Constitution, then not one of the four contested provisions of the state's immigration law is preempted by federal law.
First, the overall purpose of the law is constitutional in that it is predicated on an incontestable "interest in the cooperative enforcement of federal immigration laws ... to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States." Such unlawful presence threatens the integrity of Arizona as a political and economic community, enhancing the risk of voter fraud and decreasing economic opportunities for Arizona citizens and their fellow Americans.
Second, sections 2(B) and 6 are designed to aid federal immigration enforcement, and are in harmony with federal statutes as written by Congress. Such provisions are not subject to pre-emption because Arizona's priorities may differ from those of the executive department of the federal government. Pre-emption can never be based upon the discretionary policies of enforcement, as the Obama administration has argued here.
Third, section 3 of the law simply makes it a state crime not to comply with the federal law requiring all aliens to carry an alien registration card. This is not at all different from the state duplicating federal law prohibiting bank robbery. Furthermore, the State has a sovereign interest in identifying whether a person is a U.S. citizen because the Fourteenth Amendment provides that every resident of the state who is a U.S. citizen is, by definition, a citizen of the state.
Fourth, section 5(C), which imposes penalties on illegal aliens seeking employment in Arizona, is consistent with the exercise of its police power to preserve Arizona jobs for those persons who are lawfully part of the state's economic and political community. While the federal law only penalizes employers of illegal aliens, Arizona's interest in preserving jobs for persons lawfully in the state is necessary to preserve the public fiscal and the economic vitality of business within the state.
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