THE TRANSFORMATION OF IMMIGRATION FEDERALISM

• Published in: The William and Mary Bill of Rights journal Vol. 21; no. 2; p. 577
• Main Author: Chacón, Jennifer M
• Format: Journal Article
• Language: English
• Published: Williamsburg Bill of Rights Journal 01.12.2012
• Subjects: Equal rights; Immigration policy; Preemption; Racial profiling; State laws; Supreme Court decisions; United States > US; Arizona
• ISSN: 1065-8254; 1943-135X

[...]it rejected a "mirror-image" theory propounded by SB 1070' s proponents that promised much future state legislative mischief.22 And yet, in upholding Section 2(B), the Court left in place a provision that was a source of deep concern for opponents of the law, and effectively green-lighted systematic state and local participation in immigration enforcement in a way that failed to account for the inevitable discriminatory effects of such participation.23 It is entirely possible that this provision will later be enjoined on preemption grounds if it is implemented in ways that are inconsistent with federal priorities, or on Fourth or Fourteenth Amendment grounds if it results in unreasonably lengthy stops or widespread racial profiling.24 But the Court made it clear that a sub-federal jurisdiction can require its officers to make inquiries into the immigration status of individuals in otherwise lawful encounters with law enforcement.\n347 The federal government argues that it is seeking to implement a uniform system whereby all arrestees have information processed by federal agents through a federal database without state law enforcement inquiries into status, rather than by state officials investigating status and making direct inquiries to federal agents about status.348 The latter approach allows for inconsistencies and discrimination in the implementation of federal immigration law that is arguably out of step with federal law and policy.349 And because it permits impermissible forms of alienage and racial discrimination that are in contravention of federal law and policy, it also could have been deemed preempted.350 It is only by de-emphasizing antidiscrimination norms that the Court is able to avoid a finding of obstacle preemption with respect to Section 2(B).351 Of course, critics contend that Secure Communities does not have the effect of decreasing discrimination, and in fact, results in an increase in discriminatory policing.352 1 share these concerns.