Immigration Litigation: Can states criminalize being in the U.S. unlawfully?

June 22, 2011

Immigration Law(Editor’s note: Because of the of the current significance of the topic, we’ll be looking at different cases in immigration law throughout the month of June.)

For the first week’s post on Arizona’s “business death penalty” law, click here.

For the second week’s post on California’s tuition benefits laws, click here.

For the third week’s post on Georgia’s new immigration law, click here.

Last week, we discussed the new Georgia immigration law that is making headlines because of its rigidity on the issue.

The state of Georgia has been sued by various legal advocacy groups, as they declared they would, claiming the law is unconstitutional in myriad ways.

Instead of spending many pages discussing all of the provisions, I’m just going to talk about one that seems to be getting popular with other states.

I’m referring to the Georgia law provision that creates a state criminal penalty for being in the country unlawfully, a provision originally inspired by Arizona and that over 20 other states are currently considering.

However, is this law constitutional?

According to the federal appeals court that enjoined Arizona from enforcing its own law, it isn’t.

But the federal appeals court isn’t the Supreme Court, so that isn’t the final word on the matter.

Georgia argues, of course, that its law is constitutional.

Its argument rests on the “dual sovereignty” doctrine, which holds that, where both the federal and state governments “legitimately claim a strong interest in penalizing the same behavior, they have concurrent jurisdiction” to enforce those interests.

The state may have had a good argument, except for the fact that dual sovereignty doesn’t apply to federal preemption, where the plaintiffs base their argument for the law’s unconstitutionality.

Instead, dual sovereignty only applies to criminal matters, and it only operates as an exemption from the constitutional prohibition against double jeopardy (that is, not being criminally prosecuted for the same crime twice).

Additionally, and unfortunately for Georgia, one’s unlawful presence in the country isn’t a federal crime; it’s only a civil offense, so dual sovereignty has no place in the preemption debate whatsoever.

I’m not sure if the attorneys for Georgia’s defense weren’t aware of this fact or simply ignored it because dual sovereignty was their best shot, because they directly linked it as overriding preemption concerns in their brief.

Federal preemption, as mentioned above, is the principle on which the plaintiffs are resting their case for the law’s unconstitutionality.

Their argument is actually fairly strong.

The rule of preemption holds, concisely, that states may not regulate in an area where Congress has already staked its claim.

Has Congress already staked its claim in the area of immigration?

If clauses 3 and 4 of section 8 of Article I of the U.S. Constitution aren’t enough evidence of this, surely the Immigration and Nationality Act is.

The INA specifies very narrow circumstances that state officials may assist with the enforcement of civil immigration offenses, and both of these require circumstantial approval in advance from a specific federal agency (the two statutes are 8 U.S.C. § 1103(a) and 1357(g)(1), if you’re curious).

This seems to suggest pretty strongly that Congress has staked out the area of immigration for federal regulation, and doesn’t want any states interfering with it.

While a 9th Circuit appeals court reached this same conclusion, as I said above, that isn’t the final word, which rests with the Supreme Court.

Until we see a ruling from the Supreme Court on the issue, we can safely assume that there will be more states passing similar laws, despite the fact that they are probably unconstitutional.

At least all of the resulting lawsuits will give lawyers some needed work, right?