Control of immigration to and the legal presence in the United States is, by definition, the job of the federal government. Enforcement is carried out by the federal Immigration & Naturalization Services and its successor, the US Citizenship and Immigration Services. Patrolling and protecting the land borders of the United States is the US Customs & Border Protection, a law enforcement agency under the Department of Homeland Security. It doesn’t get more federal than that.
The federal government handles stuff that would be impractical to leave to the individual states. Foreign policy and war are obvious examples. We can’t have Virginia making treaties with Paraguay or California declaring war on Poland. Similarly, it’s not left to Montana, New York and Idaho to protect their parts of the US-Canadian border. Or to Arizona to protect its part of US-Mexican border. The US government has usurped that power, not leaving it to the states under the 10th Amendment.
Article VI, Section 2, of the U.S. Constitution is known as the Supremacy Clause because it provides that the "Constitution, and the Laws of the United States … shall be the supreme Law of the Land." It means that the federal government, in exercising any of the powers enumerated in the Constitution, must prevail over any conflicting or inconsistent state exercise of power. The Supremacy Clause does not “trump” the 10th Amendment.
Why did Arizona need to enact this law to control the number of illegal immigrants in the state? Because there was no such law allowing it to do so. Certainly no federal law and obviously no Arizona law granted state law enforcement officers the power to question immigration status. In fact, it is common practice in state and municipal law enforcement agencies to ignore immigration status in the course of enforcing state and local laws.
The federal government assuming authority over areas of regulation and control to the exclusion of the states is known as preemption. It even has a legal doctrine named after it – federal preemption. When a state or local government tries to get into an area of traditional federal control, it is challenged on the constitutional grounds of federal preemption.
It is my opinion that the courts won’t like the Arizona law and, being result oriented, will look for a means to strike it down. And, when the constitutionality of the controversial Arizona immigration law is challenged in court, the ultimate decision will be on the grounds of federal preemption.
Preemption as the basis for a decision will avoid the controversial issue of racial profiling. Federal courts, particularly the Supreme Court, usually avoid deciding controversial issues whose time has not yet come. Why get all bogged down in thorny racial profiling issues when the court can strike down the Arizona law via preemption? Striking down the law on grounds of preemption also prevents the Arizona legislature from redrafting the law to conform to a subjective constitutional standard for profiling. Once preemption is established, that’s it. How a state would go about immigration enforcement is irrelevant as it “can’t even go there” in the first place.
July 28 update: Arizona Federal District Court Judge Susan Bolton issued a temporary injunction against the controversial provisions of this law on the basis of the preemption doctrine under the Supremacy Clause of the US Constitution.
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