Legal Memorandum, Research Paper Example

Questions presented

Is it appropriate for the State of Arizona to legislate immigration law in light of the federal government’s exclusive authority over immigration policy and law? (Arizona Senate Bill 1070).

Short answers

No because immigration is regulated through the federal government laws and not through state laws.

Statement of facts

Arizona has filed an appellate brief over the state’s controversial immigration policy and law issue. Arizona Governor Jan Brewer in the 9^th U.S. Circuit of Appeals challenged the preliminary injunction which prevented key portions of the law from taking effect.

In Nebraska, a federal judge handled ordinances which banned the hiring, harboring or renting of private property to illegal immigrants. This was decided the Nebraska stating that the Supreme Court should be first to rule on the ordinance adopted by the city of Fremont, Neb. This type of ordinance was also challenged in Nebraska and other cities across America.
The Arizona injunction brought about by the Obama Administration has until Sept. 23 to file its response to Gov. Brewer’s arguments in U.S. v. State of Arizona.
Brewer contends that the district court erred in finding that the United States was likely to prevail on the merits of its challenge to the law and that the injunction was in the public’s best interest.
Two critical issues were that law enforcement would have to check the immigration status of those incarcerated before being released from jail. These provisions are preempted by federal law.
The fundamental idea is the Department of Homeland Security has exclusive authority to determine what assistance from state and local authorities in the enforcement of federal immigration laws. This is established by pre-emption law.

Congress says it is through state and local authorities whether Senate Bill 1070 will be pre-empted.

“The district court misapplied the law, he added, by: misconstruing well-established principles of federal preemption law; disregarding its obligation to preserve the constitutionality of the act’s provisions and to presume that Arizona will implement the provisions in a constitutional manner; and ignoring the United States’ burden on a facial challenge to show that the provisions of S.B. 1070 are unconstitutional in all of their applications.” (“Senate Bill 1070”).
The 9th Circuit has scheduled a Nov. 1 hearing on the appeal.
Similar bills have been introduced in South Carolina, Pennsylvania, Minnesota, Rhode Island and Michigan. Minnesota and South Carolina and legislative sessions have ended.
In the first six months of 2010, every state in regular session considered laws related to immigrants or immigration, according to the conference. There have been many bills introduced including 1,374 bills and resolutions in 46 states relating to immigrants and refugees. The number of bills introduced is comparable to those introduced in 2009 including where 50 states considered more than 1,400 bills and resolutions are pertaining to immigrants. Keep in mind that Montana, Nevada, North Dakota and Texas are not in regular session in 2010.

Discussion

State and local authorities have a great impact on whether the bill will be pre-empted. Homeland Security does have some authority over whether state and local government will have some “say so” with immigration laws.

In City of New York v United States it was distinguished the federal legislature had the authority to prohibit state and local governments from limiting their employees in the voluntary provision of information about the immigration status of aliens to federal immigration authorities.

In edger Rogelio Cabrera Álvarez, Petitioner, v. Alberto r. Gonzales it was distinguished even though an alien had a strong and admirable relationship with his children, and that relationship would suffer from the alien’s removal, an immigration judge did not act in a manner contrary to international law by concluding that the children’s hardships were not exceptional and extremely unusual, and in denying cancellation of removal.

In re Mellea it was distinguished Alien was entitled to writ of mandamus to compel clerk of court to accept his declaration of intention to become a citizen without filing a certificate of arrival. Imposition of such requirement was not reasonable and was in excess of DOL’s powers.

In City of New York v United States it was distinguished Federal statutes that prohibited state and local governments from limiting their employees in voluntary provision of facts about immigration status of aliens to federal immigration authorities did not contravene Tenth Amendment or Guarantee Clause.

In American President Lines v Mackey it was distinguished regulations of the Commissioner of Immigration and Naturalization were declared illegal because no citizen of U.S. could be deprived of citizenship by any regulation; regulations could not add to a statute where the Commissioner could not legislate.

In United States v Hernandez-Guerrero it was distinguished defendant’s challenge to the constitutionality of a congressional statute that provided a criminal penalty for an immigration violation was denied because Congress had sweeping power to regulate immigration.

Conclusion

With the present legislature in effect the state and local government does have some control over immigration, but legally they should not. Immigration laws should be left up to the federal government to decide and anything else should be arbitrary.