The unconstitutionality of state regulation of immigration through criminal law

Duke Law Journal

Volumn 61, Issue 2, 2011, Pages 251-314

  Chin, Gabriel J ^a   Miller, Marc L ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF ARIZONA   (United States)

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EID: 80054061376     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (280)

1. Support Our Law Enforcement and Safe Neighborhoods Act, ch. 113, 2010 Ariz. Sess. Laws 450 (codified in scattered sections of ARIZ. REV. STAT. ANN. tits. 11, 13, 23, 28, 41), as amended by Act of Apr. 30, 2010, ch. 211, 2010 Ariz. Sess. Laws 1070.
2. Kirk Adams, Op-Ed., The Truth Behind Arizona's Immigration Law, WASH. POST, May 28, 2010, at A23 ("[A]s signed, S.B. 1070 mirrors federal law by making it a state crime to be in this country illegally, as has been the case in federal statute for decades.").
3. A federal judge preliminarily enjoined some portions of SB 1070, but the mirror-image provisions based on federal law were not enjoined. United States v. Arizona, 703 F. Supp. 2d 980, 1002-04 (D. Ariz. 2010), aff'd, 641 F.3d 339 (9th Cir. 2011).
4. Bills patterned on SB 1070 include the Florida Immigration Enforcement Act of 2010, H.R. 1C, 2010 Leg., Spec. Sess. C (Fla. 2010); the In Support of Our Law Enforcement and Safe Neighborhoods Act, H.R. 8142, 2010 Gen. Assemb., Jan. Sess. (R.I. 2010); the Support Our Law Enforcement and Safe Neighborhoods Act, H.R. 3830, 2010 Leg., 86th Sess. (Minn. 2010); the Support Our Law Enforcement and Safe Neighborhoods Act, H.R. 2479, 2010 Gen. Assemb., Reg. Sess. (Pa. 2010); S. 1303, 60th Leg., 2d Reg. Sess. (Idaho 2010); and the Arkansas Taxpayer and Citizen Protection Act of 2009, H.R 1093, 87th Gen. Assemb., Reg. Sess. (Ark. 2009).
5. For an overview of these bills, see Anna Gorman, Ariz. Law Is Just One of Many, L.A. TIMES, July 17, 2010, at A1.
6. For a discussion of the legal and political issues facing these copycat laws, see SB 1070's Copycats See Trouble Now, ARIZ. DAILY STAR (Jan. 29, 2011, 12:00 AM), http://azstarnet.com/article_e50bae95-abbf-5f1a-b7a0-6973f43261a5.html.
7. Illegal Immigration Enforcement Act, ch. 21, 2011 Ut. ALS 21 (Utah 2011) (LEXIS) (to be codified in scattered sections of UTAH CODE ANN. tits. 76, 77), as amended by Act of Mar. 15, 2011, ch. 18, 2011 Ut. ALS 18 (Utah) (LEXIS).
8. Illegal Immigration Reform and Enforcement Act of 2011, No. 252, 2011 Ga. ALS 252 (Ga.) (LEXIS) (to be codified in scattered sections of GA. CODE ANN. tits. 13, 16, 17, 35, 36, 42, 45, 50). This statute was enjoined in Georgia Latino Alliance for Human Rights v. Deal, No. 1:11-CV-1804-TWT, 2011 WL 2520752 (N.D. Ga. June 27, 2011).
9. Act of May 5, 2011, Pub. L. No. 171, 2011 Ind. ALS 171 (Ind.) (LEXIS) (to be codified in scattered sections of IND. CODE. tits. 4, 5, 6, 11, 12, 22, 34, 35). This statute was enjoined in Buquer v. City of Indianapolis, No. 1:11-cv-708-SEB-MJD, 2011 WL 2532935 (S.D. Ind. June 24, 2011).
10. Beason-Hammon Alabama Taxpayer and Citizen Protection Act, Pub. Act No. 535, 2011 Al. ALS 535 (Ala. 2011) (LEXIS). This statute was partially enjoined in United States v. Alabama, No. 2:11-CV-2746-SLB, 2011 WL 4469941 (N.D. Ala. Sept. 28, 2011). It has generated substantial media attention.
11. See, e.g., Gigi Douban, Police Knock Alabama's New Immigration Law, MARKETPLACE (July 6, 2011), http://marketplace.publicradio.org/display/web/2011/07/06/pm-resistance-shown-against-alabamas-immigration-law (describing how Alabama sheriffs questioned the wisdom and enforceability of the tough immigration law in light of the sheriffs' good relations with immigrant workers, their limited police resources, and their other crime priorities).
12. Eyder Peralta, Friends and Foes Call Alabama's Immigration Law the Nation's Toughest, THE TWO-WAY: NPR'S NEWS BLOG (June 10, 2011, 2:09 PM), http://www.npr.org/blogs/thetwo-way/2011/06/10/137107117/friends-and-foes-call-alabamas-immigration-law-the-nations-toughest ("I'm proud of the [Alabama] Legislature for working tirelessly to create the strongest immigration bill in the country." (quoting Alabama Governor Robert Bentley) (internal quotation mark omitted)).
13. For a discussion of SB 1070, see generally Gabriel J. Chin, Carissa Byrne Hessick, Toni Massaro & Marc L. Miller, A Legal Labyrinth: Issues Raised by Arizona Senate Bill 1070, 25 GEO. IMMIGR. L.J. 47 (2010).
14. See ARIZ. REV. STAT. ANN. § 13-2319 (Supp. 2011) (making it a class 2, class 3, or class 4 felony to "intentionally engage in the smuggling of human beings for profit" and permitting peace officers to lawfully stop any motor-vehicle operator who they reasonably suspect to be violating any traffic law). This statute was upheld in State v. Flores, 188 P.3d 706 (Ariz. Ct. App. 2008).
15. COLO. REV. STAT. § 18-13-128 (2011) (making it a class 3 felony to smuggle immigrants for the purpose of assisting illegal entry into Colorado).
16. FLA. STAT. ANN. § 787.07 (West Supp. 2011) (making transporting an illegal immigrant into the United States a first-degree misdemeanor).
17. OKLA. STAT. tit. 21, § 446 (Supp. 2010) (barring both the transporting and concealing of illegal immigrants within the state of Oklahoma).
18. MO. ANN. STAT. § 577.675 (West 2011) (making it unlawful to knowingly transport an illegal alien in the state of Missouri for the purposes of human trafficking, drug trafficking, or prostitution).
19. S.C. CODE ANN. § 16-9-460 (Supp. 2010) (making it a felony punishable by fine or imprisonment to transport or shelter an illegal immigrant).
20. UTAH CODE ANN. § 76-10-2901 (LexisNexis Supp. 2011) (making it unlawful to transport or conceal an illegal immigrant with the intent to violate federal immigration law).
21. Professor Kobach previously worked as a lawyer for the U.S. Department of Justice and as a professor of law at the University of Missouri-Kansas City before his election as the secretary of state of Kansas in 2010.
22. See Kris W. Kobach, Attrition Through Enforcement: A Rational Approach to Illegal Immigration, 15 TULSA J. COMP. & INT'L L. 155, 157-62 (2008) [hereinafter Kobach, Attrition] (describing how state laws may encourage self-deportation).
23. Kris W. Kobach, Reinforcing the Rule of Law: What States Can and Should Do To Reduce Illegal Immigration, 22 GEO. IMMIGR. L.J. 459, 463-82 (2008) [hereinafter Kobach, Reinforcing] (outlining steps that states can take to affect immigration).
24. An unsigned student note from 1954-a time when an author and journal could use the term "wetback" in the title of an article without irony or embarrassment-makes a similar argument.
25. See Note, Wetbacks: Can the States Act To Curb Illegal Entry?, 6 STAN. L. REV. 287, 303-16 (1954) (arguing that state actions against illegal immigrants should be permissible).
26. See, e.g., George F. Will, Op-Ed., A Law Arizona Can Live with, WASH. POST, Apr. 28, 2010, at A21 ("Arizona's law makes what is already a federal offense-being in the country illegally-a state offense. Some critics seem not to understand Arizona's right to assert concurrent jurisdiction.").
27. John G. Browning, Legally Speaking: Federal Preemption-But Only When It Suits Us, SOUTHEAST TEX. REC. (July 20, 2010, 5:47 PM), http://www.setexasrecord.com/arguments/228319-legally-speaking-federal-preemption--but-only-when-it-suits-us ("First of all, Arizona's S.B. 1070... mirrors longstanding federal immigration law; it's intended to complement, not contradict, immigration policy.").
28. Hannity (Fox News television program Apr. 27, 2010) (transcript available at http://www.foxnews.com/story/0,2933,591654,00.html) ("Because, again, this law in Arizona that has recently been signed, it essentially replicates, duplicates the federal law anyway. So I don't know why Obama has a problem with that...." (quoting Sarah Palin)).
29. Rush Limbaugh, Judge Rips Guts out of AZ Law: It's No Longer Illegal To Be Illegal, THE RUSH LIMBAUGH SHOW (July 28, 2010), http://www.rushlimbaugh.com/daily/2010/07/28/judge_rips_guts_out_of_az_law_it_s_no_longer_illegal_to_be_illegal ("The Arizona law mirrors the federal law.").
30. David A. Patten, Experts: 'Ridiculous' Lawsuit Won't Nix Arizona Law on Illegals, NEWSMAX.COM (July 6, 2010, 8:05 PM), http://www.newsmax.com/Headline/arizona-lawsuit-illegals-obama/2010/07/06/id/363929 ("Arizona's law is designed to help federal immigration authorities enforce their own laws against illegals-statutes that the feds have largely ignored. The Arizona law, S.B. 1070, was crafted carefully to mimic federal laws on the books precisely to avoid a lawsuit based on federal supremacy.").
31. Edward Sifuentes, Three USD Professors Say Arizona Law Is Constitutional, N. COUNTY TIMES (May 13, 2010, 7:44 PM), http://www.nctimes.com/news/local/sdcounty/article_9631a761-1a36-597b-8467-2173655b4465.html ("Professor Lawrence Alexander, who teaches constitutional law at USD, said that [the constitutional] argument would fail because the Arizona law does not conflict with federal immigration law.").
32. Although the mirror-image idea has been developed in the context of immigration law, there is no logical reason that it can apply only in the immigration field.
33. See, e.g., Editorial, A Contemptible Suit, N.Y. POST, July 8, 2010, at 24 ("Arizona's statute, after all, essentially mirrors existing federal law....").
34. Editorial, Judicial Activism Against Arizona, WASH. TIMES, July 29, 2010, at B02 ("However, the case at hand doesn't deal with pre-emptive law but with parallel enforcement. Arizona's law does not define who has broken immigration laws; it deals with what to do when police apprehend these criminals.").
35. See, e.g., Brief of Amici Curiae, Members of the United States Congress Trent Franks et al. at 5, United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010) (No. 2:10-CV-01413-SRB), aff'd, 641 F.3d 339 (9th Cir. 2011) ("In encouraging cooperative enforcement of immigration law, Congress did not displace State and local enforcement activity.").
36. Hannity (Fox News television program July 23, 2010) (transcript available at http://www.foxnews.com/story/0,2933,597704,00.html) ("[W]e know that the law was written in order to mirror federal law and not to go expand beyond the limits of federal law." (quoting Congressman Steve King)).
37. See, e.g., Kris W. Kobach, Defending Arizona, NAT'L REV., June 7, 2010, at 31, 33 ("Indeed, S.B. 1070 is a mirror image of federal law. The documentation provisions of the Arizona law penalize precisely the same conduct that is already penalized under federal immigration law....").
38. Steven A. Camarota, Center for Immigration Studies on the New Arizona Immigration Law, SB1070, CTR. FOR IMMIGRATION STUDIES (Apr. 29, 2010), http://cis.org/Announcement/AZ-Immigration-SB1070 ("The law is designed to avoid the legal pitfall of 'pre-emption,' which means a state can't adopt laws that conflict with federal laws. By making what is a federal violation also a state violation, the Arizona law avoids this problem.").
39. P. Anderson, Federal Government's Lawsuit Wrong, ARIZ. REPUBLIC (July 7, 2010, 12:00 AM), http://www.azcentral.com/arizonarepublic/opinions/articles/2010/07/07/20100707wedlets072.html ("The federal government is suing the state of Arizona for passing a law that will enforce immigration laws the federal government passed but refuses to enforce. No wonder our federal government has such a low approval rating.").
40. Jimmie R. Applegate, Reader Offers More Perspective on Immigration Laws, CHINOOK OBSERVER, July 6, 2010, http://www.chinookobserver.com/opinion/letter-reader-offers-more-perspective-on-immigration-laws/article_33449881-2188-5fa1-ac06-0cbafe7ed918.html ("SB 1070 is the mirror image of US federal law that unfortunately has not been enforced by federal officials.").
41. See Michel Hethmon, Arizona Can Prevail on Immigration Law, CNN (July 30, 2010), http://articles.cnn.com/2010-07-30/opinion/hethmon.arizona.ruling_1_immigration-law-immigration-status-rampant-immigration ("Notably, [the district court judge] tossed [the] far-left theor[y] advanced by U.S. Attorney General Eric Holder.... that the Arizona criminal 'mirror' statutes were a pre-empted 'regulation of immigration,' the theory used to sabotage California's Proposition 187 back in 1996.").
42. In declining to enjoin particular provisions of the law, the court concluded that SB 1070 "does not attempt to prohibit entry into Arizona, but rather criminalizes specific conduct already prohibited by federal law." Arizona, 703 F. Supp. 2d at 1003 n.19. According to the court, the law "creates parallel state statutory provisions for conduct already prohibited by federal law.".
43. Support Our Law Enforcement and Safe Neighborhoods Act, ch. 113, § 1, 2010 Ariz. Sess. Laws 450, 450.
44. De Canas v. Bica, 424 U.S. 351, 354 (1976), superseded by statute, Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, sec. 101, § 274A(h)(2), 100 Stat. 3359, 3368, as recognized in Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968 (2011). This principle is discussed in detail in Part I.A, infra.
45. Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976).
46. Proposed Brief of Amici Curiae Michigan et al. at 2, Arizona, 703 F. Supp. 2d 980 (No. 2:10-CV-01413-SRB) ("This Court must presume that S.B. 1070 is not preempted, unless (1) the statute constitutes a 'regulation of immigration'...." (quoting De Canas, 424 U.S. at 355)).
47. But see Petition for a Writ of Certiorari at 26, Arizona v. United States, No. 11-182 (U.S. Aug. 10, 2011) ("States enjoy plenary power and state law enforcement officers do not require authorization from the federal Congress.").
48. In addition, unlike opponents of school desegregation, who rested their arguments on states' rights, defenders of SB 1070's legality contend that the law is consistent with the Constitution and with Supreme Court rulings, not that the states have no obligation to follow federal law as set out by the federal courts.
49. For an account of another legal movement-not entirely unrelated-designed to expand state authority at the expense of the federal government, see Barak Y. Orbach, Kathleen S. Callahan & Lisa M. Lindemenn, Arming States' Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy, 52 ARIZ. L. REV. 1161, 1171-83 (2010).
50. E.g., Defendants' Response to Plaintiff's Motion for Preliminary Injunction at 1, Arizona, 703 F. Supp. 2d 980 (No. 2:10-CV-01413-SRB) ("The Arizona Legislature enacted SB 1070 primarily to require that Arizona's law enforcement officers cooperate in the enforcement of federal immigration laws and, pursuant to the State's broad police powers, to establish state crimes that mirror existing federal laws.").
51. U.S. CONST. art. I, § 8, cls. 11-16 (authorizing Congress "[t]o declare War," maintain and govern land and naval forces, and "provide for calling forth the Militia").
52. Compare Egelhoff v. Egelhoff, 532 U.S. 141, 151 (2001) (noting "a presumption against pre-emption in areas of traditional state regulation"), with Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 347 (2001) ("Policing fraud against federal agencies is hardly 'a field which the States have traditionally occupied' such as to warrant a presumption against finding federal pre-emption of a state-law cause of action." (citation omitted) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947))).
53. Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 (2006).
54. Judiciary Act of 1789, ch. 20, 1 Stat. 73.
55. See, e.g., Kris W. Kobach, Op-Ed., Why Arizona Drew a Line, N.Y. TIMES, Apr. 29, 2010, at A31 ("While it is true that Washington holds primary authority in immigration, the Supreme Court since 1976 has recognized that states may enact laws to discourage illegal immigration without being pre-empted by federal law.").
56. Julia Preston, A Professor Fights Illegal Immigration One Court at a Time, N.Y. TIMES, July 21, 2009, at A10 ("To rigidly separate local government from federal government when we think about immigration enforcement is not only legally incorrect, it's also bad policy...." (quoting Kobach) (internal quotation marks omitted)).
57. 8 U.S.C. § 1324(a)(1)(A)(ii)-(iii) (2006).
58. See 18 U.S.C. § 2(a) (2006) ("Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."); cf. MODEL PENAL CODE § 2.06(3) (1985) ("A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he... (ii) aids or agrees or attempts to aid such other person in planning or committing it.").
59. 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 13.2 (2d ed. 2003) (describing the doctrine of accomplice liability).
60. 18 U.S.C. § 4 ("Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same... shall be fined... or imprisoned not more than three years, or both.").
61. Under the views of some courts, a person being transported may be liable for the substantive offense of transportation as a conspirator or accomplice. See, e.g., State v. Flores, 188 P.3d 706, 709 (Ariz. Ct. App. 2008) (finding a Mexican citizen guilty of solicitation to commit human smuggling because he "solicited another person to smuggle him into the United States, which would [have included] travel within Arizona"); State v. Barragan-Sierra, 196 P.3d 879, 885 (Ariz. Ct. App. 2008) ("The language of the conspiracy and human smuggling statutes in effect at the time of Appellant's offense... plainly allow[s] the person smuggled to be convicted of conspiracy to commit human smuggling.").
62. State "classifications based on alienage," the Court has said, "are inherently suspect and subject to close judicial scrutiny." Graham v. Richardson, 403 U.S. 365, 372 (1971) (invalidating an Arizona law that restricted legal aliens' access to benefits). Thus, lawful permanent residents and other noncitizens allowed into the United States by law cannot be denied most rights. See, e.g., In re Griffiths, 413 U.S. 717, 729 (1973) (holding that preventing noncitizens from taking the bar exam violates equal protection). State authority is broader, however, in areas related to core political functions. For example, states can deny even legally admitted noncitizens the right to be peace officers, Cabell v. Chavez-Salido, 454 U.S. 432, 445-47 (1982), or school teachers, Ambach v. Norwick, 441 U.S. 68, 80-81 (1979). Older case law, now controversial in the state courts, holds that lawful aliens may be prohibited from owning firearms.
63. See generally Pratheepan Gulasekaram, Aliens with Guns: Equal Protection, Federal Power, and the Second Amendment, 92 IOWA L. REV. 891 (2007) (reviewing the restrictions on noncitizens' right to bear arms due to equal protection norms and the federal foreign-affairs power).
64. The coherence of the current regime is not without critics
65. See, e.g., Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 VAND. L. REV. 787, 792 (2008) ("[T]he constitutional mandate for federal exclusivity over pure immigration law is far more contestable than the traditional debate would suggest.").
66. Few, however, dispute its existence at a basic level. For an examination of the preemption of state criminal immigration laws, see, for example, Karl Manheim, State Immigration Laws and Federal Supremacy, 22 HASTINGS CONST. L.Q. 939, 984-86 (1995).
67. Karla Mari McKanders, Welcome to Hazleton! "Illegal" Immigrants Beware: Local Immigration Ordinances and What the Federal Government Must Do About It, 39 LOY. U. CHI. L.J. 1, 29-39 (2007).
68. Michael A. Olivas, Immigration-Related State and Local Ordinances: Preemption, Prejudice, and the Proper Role for Enforcement, 2007 U. CHI. LEGAL F. 27.
69. Mark S. Grube, Note, Preemption of Local Regulations Beyond Lozano v. City of Hazleton: Reconciling Local Enforcement with Federal Immigration Policy, 95 CORNELL L. REV. 391 (2010).
70. Ben Meade, Note, Interstate Instability: Why Colorado's Alien Smuggling Statute Is Preempted by Federal Immigration Laws, 79 U. COLO. L. REV. 237 (2008).
71. Note, however, that the Arizona Court of Appeals has upheld one of the state's mirror-image immigration laws.
72. U.S. CONST. art. I, § 8, cl. 3; The Head Money Cases, 112 U.S. 580, 599 (1884) ("Congress [has] the power to pass a law regulating immigration as a part of commerce of this country with foreign nations....").
73. U.S. CONST. art. I, § 8, cl. 4.
74. That is, but for the prohibition before 1808, Congress may prohibit the migration or importation of certain persons.
75. See U.S. CONST. art. I, § 8, cl. 3 (granting Congress the power "[t]o regulate Commerce with foreign Nations"); Toll v. Moreno, 458 U.S. 1, 10 (1982) (holding that federal authority to regulate the status of aliens arises out of the constitutional power to regulate commerce with foreign nations, the broad authority over foreign affairs, and the power to establish a uniform rule of naturalization). Because the foreign-affairs power is at least partly in the hands of the president, some authority exists for the notion that the president has some inherent power in the immigration context. See infra Part III.B.
76. See, e.g., Negusie v. Holder, 129 S. Ct. 1159, 1164 (2009) ("Judicial deference in the immigration context is of special importance, for executive officials 'exercise especially sensitive political functions that implicate questions of foreign relations.' The Attorney General's decision... 'may affect our relations with [the alien's native] country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.'" (alteration in original) (citation omitted) (quoting INS v. Abudu, 485 U.S. 94, 110 (1988); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999))); Fiallo v. Bell, 430 U.S. 787, 792 (1977) ("Our cases 'have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.'" (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953))); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) ("The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power." (citations omitted)).
77. State v. Camargo, 537 P.2d 920, 922 (Ariz. 1975).
78. Article VI, Clause 2 of the U.S. Constitution provides as follows: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. CONST. art. VI, cl. 2.
79. Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992) (plurality opinion).
80. Henderson v. Mayor of New York, 92 U.S. 259 (1876).
81. Chy Lung v. Freeman, 92 U.S. 275 (1876).
82. See generally Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833 (1993) (reviewing immigration law in the United States before the passage of a general federal immigration law).
83. Henderson, 92 U.S. at 268.
84. Chy Lung v. Freeman, 92 U.S. 275, 279 (1876).
85. Other state actions with foreign-policy implications have met a similar judicial reception. In Zschernig v. Miller, 389 U.S. 429 (1968), the Court invalidated an Oregon probate law that made the right of an overseas heir to inherit property dependent on the property laws of that heir's nation.
86. The Court held that a state law is not invalid simply because it has "some incidental or indirect effect in foreign countries.".
87. Nevertheless, it found excessive "state involvement in foreign affairs and international relations-matters which the Constitution entrusts solely to the Federal Government"-unacceptable.
88. "As one reads the Oregon decisions, it seems that foreign policy attitudes, the freezing or thawing of the 'cold war,' and the like are the real desiderata. Yet they of course are matters for the Federal Government, not for local probate courts.".
89. See also Japan Line, Ltd. v. Cnty. of Los Angeles, 441 U.S. 434, 454 (1979) (invalidating a state tax on foreign containers as an impermissible local regulation of foreign commerce and rejecting the argument "that a State is free to impose demonstrable burdens on commerce, so long as Congress has not pre-empted the field by affirmative regulation"); Japan Line, 441 U.S. at 457 ("The problems to which appellees refer are problems that admit only of a federal remedy. They do not admit of a unilateral solution by a State.").
90. Nyquist v. Mauclet, 432 U.S. 1, 10 (1977); see also De Canas v. Bica, 424 U.S. 351, 354 (1976) ("Power to regulate immigration is unquestionably exclusively a federal power."), superseded by statute, Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, sec. 101, § 274A(h)(2), 100 Stat. 3359, 3368, as recognized in Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968 (2011); cf. Von Saher v. Norton Simon Museum of Art, 592 F.3d 954, 964 (9th Cir. 2010) ("Courts have consistently struck down state laws which purport to regulate an area of traditional state competence, but in fact, affect foreign affairs.").
91. Chy Lung, 92 U.S. at 280.
92. See, e.g., Arrowsmith v. Voorhies, 55 F.2d 310, 311-12 (E.D. Mich. 1931) (invalidating a Michigan law that limited the employment of "[u]ndesirable aliens," as defined by federal law, "because it [sought] to usurp the power of government, exclusively vested by the Constitution in Congress, over the control of aliens and immigration"); Purdy & Fitzpatrick v. State, 456 P.2d 645, 653 n.17 (Cal. 1969) (invalidating a statute that prohibited the employment of noncitizens on public works and clarifying that "[t]o argue that the California statute [could] to [that] extent control federal immigration decisions... defie[d] the constitutional grant of exclusive congressional power to regulate immigration"); Ex parte Ah Cue, 35 P. 556, 557 (Cal. 1894) ("Congress... has prescribed the terms upon which the Chinese now here shall be permitted to remain within the United States; and it is beyond the power of the state to impose any further conditions.").
93. See generally Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010) ("The Nation's first 100 years was 'a period of unimpeded immigration.'... It was not until 1875 that Congress first passed a statute barring convicts and prostitutes from entering the country, Act of Mar. 3, 1875, ch. 141, 18 Stat. 477.".
94. (Quoting CHARLES GORDON & HARRY N. ROSENFIELD, IMMIGRATION LAW AND PROCEDURE § 1.2a, at 5 (1959))).
95. De Canas v. Bica, 424 U.S. 351 (1976), superseded by statute, Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, sec. 101, § 274A(h)(2), 100 Stat. 3359, 3368, as recognized in Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968 (2011).
96. Immigration Reform and Control Act of 1986, 100 Stat. 3359 (codified as amended in scattered sections of 7, 8, 18, 20, 29, 42 U.S.C.).
97. In addition, no cases have interpreted the California law since the Supreme Court's decision. Therefore, it is unclear whether the decision operated as an across-the-board employment ban or left open employment opportunities for which there was little demand by employees authorized to work in the United States.
98. De Canas, 424 U.S. at 355. The Equal Protection Clause also imposes some limits on state power to regulate immigrants.
99. The Mathews Court explained that the statute in Graham encroach[ed] upon the exclusive federal power over the entrance and residence of aliens. Of course, the latter ground of decision actually supports our holding today that it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens. Mathews, 426 U.S. at 84.
100. De Canas, 424 U.S. at 355.
101. The Court noted that another California court had "said that 'the section [wa]s not aimed at immigration control or regulation but [sought] to aid California residents in obtaining jobs....'".
102. Discounting speculative effects is not an immigration-specific principle; in other areas, the Court has said that remote, speculative, indirect, and incidental effects on federal authority or constitutional rights do not invalidate state law. See, e.g., Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm'n, 461 U.S. 375, 395-96 (1983) (reaching a similar conclusion with respect to interstate commerce); O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 787 (1980) (holding that although federal decertification of a nursing home affected residents, it was "an indirect and incidental result of the Government's enforcement action [and did] not amount to a deprivation of any interest in life, liberty, or property"); A. Magnano Co. v. Hamilton, 292 U.S. 40, 43 (1934) (stating that even if a state tax on a product diminished federal revenues, "the effect of it upon appellant would be so remote, speculative and indirect as to afford appellant no basis for invoking the powers of a court of equity").
103. Plyler v. Doe, 457 U.S. 202 (1982).
104. See also Mathews, 426 U.S. at 80 ("[T]he fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens. Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.").
105. Plyler, 457 U.S. at 230 ("If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here.").
106. Of course, the multiple layers of conditionality in the Court's dicta hardly offered a recipe for state action. Professor Mark Tushnet's reading of the drafting history of the majority decision is that to convince Justice Powell to join the majority, the decision invoked many considerations without being clear as to which, if any, were controlling.
107. Mark Tushnet, Justice Lewis F. Powell and the Jurisprudence of Centrism, 93 MICH. L. REV. 1854, 1862-73 (1995) (book review).
108. Plyler, 457 U.S. at 225 (citation omitted).
109. See, e.g., 8 U.S.C. §§ 1601-1646 (2006) (limiting local, state, and federal benefits to certain classes of noncitizens); State v. Cosio, 858 P.2d 621, 629 (Alaska 1993) (concluding that undocumented noncitizens are not entitled to a dividend from the Alaska Permanent Fund).
110. 8 U.S.C. § 1103(a)(10) (2006) ("[If a] mass influx of aliens... presents urgent circumstances requiring an immediate Federal response, the Attorney General may authorize any State or local law enforcement officer... to perform or exercise any of the powers... conferred... by this chapter... upon officers or employees of the Service.").
111. Plyler, 457 U.S. at 228 n.23.
112. See State v. Patel, 770 P.2d 390, 393 (Ariz. Ct. App. 1989) ("Congress has occupied the field of immigration law, excluding state control over deportation proceedings.").
113. Chy Lung v. Freeman, 92 U.S. 275, 280 (1876).
114. See Tom Gerety, Children in the Labyrinth: The Complexities of Plyler v. Doe, 44 U. PITT. L. REV. 379, 384-85 (1983) (arguing that a state-run immigration program would be unconstitutional even if it mirrored federal regulations).
115. This point is made by the cases that hold that deportation cannot be imposed as part of a criminal sentence. See, e.g., United States v. Abushaar, 761 F.2d 954, 960 (3d Cir. 1985) ("[A]liens may be deported only in accordance with the carefully designed federal statutory and regulatory scheme.... Congress has enacted laws governing the admission, expulsion, and deportation of aliens. Those laws delegate authority to order deportation to the Attorney General and not to the judiciary. Nowhere in this detailed statutory scheme is there a provision for a court to deport aliens sua sponte." (emphasis added) (citations omitted) (quoting United States v. Castillo-Burgos, 501 F.2d 217, 219-20 (9th Cir. 1974), abrogated by United States v. Rubio-Villareal, 967 F.2d 294 (9th Cir. 1992) (en banc))); State v. Rattray, No. 85708, 2005 WL 2388271, at *2 (Ohio Ct. App. Sept. 29, 2005) ("[A]s the State concedes, the court had no jurisdiction to impose lifetime deportation. An order of deportation is a matter within the sole jurisdiction of the federal authorities."); State v. Arviso, 993 P.2d 894, 898 (Utah Ct. App. 1999) (holding that the lower court "trespassed into forbidden [Immigration and Naturalization Service (INS)] territory, violating the Supremacy Clause," when it conditioned a suspended sentence on the defendant's not returning to the United States).
116. See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) ("Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent."); see also 8 U.S.C. § 1229a(a)(3) (2006) ("[A] proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States.").
117. See, e.g., 18 U.S.C. § 922(g)(5)(A) (2006) (prohibiting undocumented noncitizens from carrying firearms); ARIZ. REV. STAT. ANN. § 13-3101(A)(7)(e) (Supp. 2011) (defining an undocumented alien as a prohibited possessor of a firearm); cf. Cubas v. Martinez, 819 N.Y.S.2d 10, 24 (App. Div. 2006) (holding that identity procedures that deny driver's licenses to undocumented aliens are constitutional).
118. This point is made in sentencing cases that hold that states have no power to impose deportation even by agreement as a condition of probation. See, e.g., People v. Antonio-Antimo, 29 P.3d 298, 302-03 (Colo. 2000) (en banc) (finding that Colorado should not have ordered the deportation of the defendant because such authority lies exclusively with the INS); Torros v. State, 415 So. 2d 908, 908 (Fla. Dist. Ct. App. 1982) (per curiam) ("[D]eportation is a federal matter. The trial court thus had no authority to order [the defendants'] deportation, and the provision therefor must be stricken." (citation omitted)); Sanchez v. State, 508 S.E.2d 185, 187 (Ga. Ct. App. 1998) ("Ordering a defendant to leave the country as a condition of probation constitutes an order of deportation." (citing United States v. Abushaar, 761 F.2d 954, 959-61 (3d Cir. 1985))); Rojas v. State, 450 A.2d 490, 492 (Md. Ct. Spec. App. 1982) (holding an order not to oppose deportation invalid and finding it "clear that the federal government has exclusive authority over deportation proceedings"); State v. Pando, 921 P.2d 1285, 1286-88 (N.M. Ct. App. 1996) (reversing the trial court's decision, which required the defendant to leave and remain outside the United States); Hernandez v. State, 613 S.W.2d 287, 289-90 (Tex. Crim. App. 1980) ("[T]he conditions of probation that ordered appellant to remain in the Republic of Mexico and not to re-enter the United States without prior written consent of the court are void."). But see State v. Martinez, 925 P.2d 832, 833 (Idaho 1996) (holding that it is not improper for a district court to order that a sentence be suspended if the INS acts to deport the defendant).
119. In Truax v. Raich, 239 U.S. 33 (1915), the Court invalidated an Arizona law denying legal aliens the right to work in many jobs.
120. The Court held that this law violated the Fourteenth Amendment and also interfered with the "authority to control immigration-to admit or exclude aliens"-that "is vested solely in the Federal Government.".
121. According to the Court, The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted... would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And... the practical result would be that those lawfully admitted to the country under the authority of the acts of Congress... would be segregated in such of the States as chose to offer hospitality.
122. Of course, Truax involved lawfully admitted noncitizens, but that fact does not undermine the conclusion that the "practical result" of state laws spurring self-deportation is departure from the state or United States. The statute upheld in De Canas v. Bica did not clearly adopt a different rule for undocumented noncitizens: it did not prohibit employment of undocumented people entirely, and it applied only "if such employment would have an adverse effect on lawful resident workers." De Canas v. Bica, 424 U.S. 351, 352 (1976), superseded by statute, Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, sec. 101, § 274A(h)(2), 100 Stat. 3359, 3368, as recognized in Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968 (2011). If federal immigration authority is understood as a branch of the interstate- or foreign-commerce power, then a state policy, enforced through criminal law, to drive out undocumented noncitizens would also seem to be a direct regulation. Of course, the threat of prosecution can burden interstate commerce. Morgan v. Virginia, 328 U.S. 373, 376-77 (1946). Encouraging noncitizens to self-deport to other states or foreign countries seems to be a direct regulation of immigration because it is intended to have effects beyond any given state's borders. Cf. Healy v. Beer Inst., 491 U.S. 324, 332 (1989) ("[A] state law that has the 'practical effect' of regulating commerce occurring wholly outside that State's borders is invalid under the Commerce Clause."); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 521 (1935) ("New York has no power to project its legislation into Vermont by regulating the price to be paid in that state for milk acquired there.").
123. See Lozano v. City of Hazleton, 620 F.3d 170, 220-21 (3d Cir. 2010) ("We recognize, of course, that Hazleton's housing provisions neither control actual physical entry into the City, nor physically expel persons from it. Nonetheless, '[i]n essence,' that is precisely what they attempt to do. 'It is difficult to conceive of a more effective method' of ensuring that persons do not enter or remain in a locality than by precluding their ability to live in it." (alteration in original) (citation omitted) (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 160, 164 (1989))), vacated mem., 131 S. Ct. 2958 (2011); State v. Barros-Batistele, No. 05-CR-1474, slip op. at 4 (N.H. Dist. Ct. Aug. 12, 2005) ("[T]he criminal trespass charges against the defendants are unconstitutional attempts to regulate in the area of enforcement of immigration violations, an area where Congress must be deemed to have regulated with such civil sanctions and criminal penalties as it feels are sufficient.").
124. Furthering the unlawful presence is a textual requirement of the smuggling statute. 8 U.S.C. § 1324(a)(1)(A)(ii) (2006). The statutory language "shields from detection" requires knowing evasion, and the word "conceals" strongly implies it. The "harboring" provision is more ambiguous, but many courts have read in a requirement of intent to help evade detection by law enforcement. E.g., United States v. Belevin-Ramales, 458 F. Supp. 2d 409, 411 (E.D. Ky. 2006).
125. The statute criminalizes transporting a noncitizen in a vehicle. That the liability is placed on the transporter does not make it any less a regulation of immigration; many cases invalidating state immigration laws were brought on behalf of transportation companies. See, e.g., New York v. Compagnie Générale Transatlantique, 107 U.S. 59, 59 (1883); Henderson v. Mayor of New York, 92 U.S. 259, 260-61 (1876). It is also no less a regulation of immigration simply because it does not cover all forms of immigration. That is, it would be a regulation of immigration if Minnesota or New Mexico undertook to deport from the interior or exclude at the border only those undocumented noncitizens traveling in vehicles and in groups of two or more.
126. That is, states may pass legislation within their authority, such as statutes denying undocumented noncitizens public benefits, as permitted by federal law, because they advance a legitimate state end and do not themselves amount to a regulation of immigration, even if their practical, indirect effect is to encourage self-deportation to some degree. But states may not directly regulate immigration-say, by making it a crime, directly or indirectly, to be in the state-even if they hope that the regulation will serve legitimate state ends like reducing crime or saving state funds.
127. For an excellent discussion of the various "harboring" precedents, see generally Eisha Jain, Immigration Enforcement and Harboring Doctrine, 24 GEO. IMMIGR. L.J. 147 (2010).
128. Of course, if states have the constitutional power to enact state laws dealing with immigration, then their own courts can independently enforce and interpret them. See Ga. Latino Alliance for Human Rights v. Deal, No. 1:11-CV-1804-TWT, 2011 WL 2520752, at *1, *13 (N.D. Ga. June 27, 2011) (preliminarily enjoining the Georgia immigration law passed in the wake of SB 1070, in part because of a concern that "Georgia judges [would] interpret [the law's] provisions, unconstrained by... federal precedent").
129. In the case of SB 1070 itself, a broad reading is supported by the text of the law, which exempts Child Protective Services workers acting in the course of their duties, along with certain ambulance attendants and emergency medical technicians "transporting or moving an alien in this state pursuant to title 36, chapter 21.1," a provision that deals with the licensing of ambulance companies. Support Our Law Enforcement and Safe Neighborhoods Act, ch. 113, sec. 5, § 13-2929(C), 2010 Ariz. Sess. Laws 450, 457 (codified at ARIZ. REV. STAT. ANN. § 13-2929(E) (Supp. 2011)), as amended by Act of Apr. 30, 2010, ch. 211, § 6, 2010 Ariz. Sess. Laws 1070, 1078-79; ARIZ. REV. STAT. ANN. §§ 36-2201 to -2264 (2009 & Supp. 2011). This language implies that the exception would not apply, say, to a neighbor-or, theoretically, a police officer-who is not an EMT or ambulance attendant and who does not work for a licensed ambulance company if that person transports an undocumented noncitizen to the hospital. That such a person would be guilty of the offense illustrates the sheer breadth of the law's scope.
130. Arizona accomplice-liability principles make a person who is being smuggled by someone else liable for human smuggling.
131. Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999).
132. Marsh v. United States, 29 F.2d 172 (2d Cir. 1928).
133. Marsh upheld the "universal practice of police officers in New York to arrest for federal crimes." Marsh, 29 F.2d at 173. Gonzales upheld the authority of local police to arrest. Gonzales, 722 F.2d at 477. Professor Michael Wishnie contends that even arrests by local authorities are generally not authorized by the INA.
134. Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. PA. J. CONST. L. 1084, 1093 (2004).
135. Similarly, Professor Huyen Pham argues that local immigration enforcement through arrest is inherently unconstitutional as nonuniform.
136. Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, 31 FLA. ST. U. L. REV. 965, 995-96 (2004).
137. This Article assumes arguendo that Gonzales and Marsh are good law to show that even if these cases are valid, the mirror-image doctrine is unsound. If the powerful reasoning in the work of Professors Wishnie and Pham were to prevail as a matter of doctrine, then there would be additional reasons for the invalidity of these forms of state regulation.
138. That is, although private citizens are often allowed to make arrests for crimes, that fact does not suggest that individual private citizens can create their own crimes and prosecute people under them.
139. 10 U.S.C. § 808 (2006) ("Any civil officer having authority to apprehend offenders under the laws of the United States or of a State... may summarily apprehend a deserter from the armed forces and deliver him into the custody of those forces.").
140. See U.S. CONST. art. I, § 8, cl. 14 (granting Congress the power "[t]o make Rules for the Government and Regulation of the land and naval Forces"); Houston v. Moore, 18 U.S. (5 Wheat.) 1, 17 (1820) ("Over the national militia, the State governments never had, or could have, jurisdiction. None such is conferred by the constitution of the United States; consequently, none such can exist."); United States v. Contreras, 69 M.J. 120, 121 n.4 (C.A.A.F. 2010) (noting that courts-martial have exclusive jurisdiction over "purely military offenses" under Rule for Courts-Martial 201(d)(1)).
141. Robertson v. Baldwin, 165 U.S. 275 (1897).
142. Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928).
143. See Rothgery v. Gillespie Cnty., 128 S. Ct. 2578, 2592 (2008) ("[A] criminal defendant's initial appearance before a judicial officer... marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.").
144. See, e.g., Michael Edmund O'Neill, Understanding Federal Prosecutorial Declinations: An Empirical Analysis of Predictive Factors, 41 AM. CRIM. L. REV. 1439, 1444-45 (2004) (describing prosecutorial trends from 1994 to 2000).
145. For practical purposes, a state or local arrest may lead to immigration consequences even if federal criminal prosecution is declined.
146. See Hiroshi Motomura, The Discretion That Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line, 58 UCLA L. REV. 1819, 1845 (2011) ("The high likelihood of a removal proceeding diminishes any tempering of arrest patterns because of a decision not to prosecute criminally.").
147. But this remains a choice for federal authorities and, as a legal matter, does not amount to a delegation or transfer of decisionmaking authority any more than would a federal policy of investigating complaints from private parties that particular individuals or workers were undocumented or removable
148. Even if an arrest is unlawful, a criminal case may proceed. E.g., United States v. Alvarez-Machain, 504 U.S. 655, 670 (1992) ("The fact of respondent's forcible abduction does not therefore prohibit his trial in a court in the United States for violations of the criminal laws of the United States."); New York v. Harris, 495 U.S. 14, 19-21 (1990) (concluding that although a home arrest without a warrant was illegal, the subsequent custody was legal and that, therefore, otherwise-admissible statements could be used at trial).
149. That is, the police in any state may make arrests based on a warrant from any state through the National Crime Information Center's warrant system. See U.S. CONST. art. IV, § 2, cl. 2 (requiring states to deliver upon demand any individual charged with a crime in another state).
150. National Crime Information Center, FBI, http://www.fbi.gov/about-us/cjis/ncic (last visited Oct. 7, 2011) (describing the National Crime Information Center-"an electronic clearinghouse of crime data that can be tapped into by virtually every criminal justice agency nationwide").
151. This practice, however, does not imply that legislatures in every state can pass laws regulating conduct in any state.
152. See, e.g., U.S. CONST. amend. VI (noting that trials are to be "by an impartial jury of the State and district wherein the crime shall have been committed").
153. 8 U.S.C. § 1357(g)(1) (2006). Notwithstanding this law's U.S. Code citation, it is often referred to by its INA section number: 287(g).
154. It does so in two other provisions as well. Section 1644 of title 8 of the U.S. Code provides: Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States. 8 U.S.C. § 1644 (2006). Section 1373 of title 8 is similar.
155. The idea of state cooperation with federal authorities is also reflected in Marsh and Gonzales. In Gonzales, the court noted that there was "a letter from the United States Attorney for the District of Arizona... advis[ing]... that officers who, in the course of their normal duties, encountered undocumented aliens suspected of illegal entry, could temporarily detain them while contacting the Border Patrol." Gonzales v. City of Peoria, 722 F.2d 468, 473-74 (9th Cir. 1983), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999). At the time of Marsh, federal authorities were known to specifically request help from the law-enforcement agency involved, Gambino v. United States, 275 U.S. 310, 315 n.2 (1927) ("[T]he Federal Prohibition Director in New York City announced that he would call upon the Superintendent of State Troopers... to aid in arresting violators of the National Prohibition Act."), particularly when dealing with crimes like the one in that case-a Prohibition offense, over which "[t]he Eighteenth Amendment gave concurrent jurisdiction to the states." Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928). In sum, the laws enacted by Congress do not imply authorization for independent state statutory regulation of immigration or any action other than in cooperation with the United States.
156. United States v. Sanchez-Vargas, 878 F.2d 1163, 1169 (9th Cir. 1989).
157. See Galvez-Maldonado ex rel. Flores v. Meese, 934 F.2d 991, 999 (9th Cir. 1990) (noting that Congress, in passing the INA, intended "to enact a comprehensive, revised immigration, naturalization, and nationality code" (quoting H.R. REP. NO. 82-1365, at 1 (1952), reprinted in 1952 U.S.C.C.A.N. 1653, 1653) (internal quotation marks omitted)), vacated and superseded on reh'g, 942 F.2d 1352 (9th Cir. 1991) (en banc), rev'd sub nom. Reno v. Flores, 507 U.S. 292 (1993).
158. 8 U.S.C. § 1103(a)(1). Before the September 11 attacks, Congress charged the Department of Justice with the immigration-related functions now assigned to the Department of Homeland Security. See generally Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441-78, 116 Stat. 2135, 2192-2212 (detailing the reassignment of such functions).
159. Negusie v. Holder, 129 S. Ct. 1159, 1170 (2009) (Scalia, J., concurring).
160. 28 U.S.C. § 516 (2006).
161. 8 U.S.C. § 1325(a).
162. See 8 C.F.R. § 274a.12©(14) (2011) (authorizing deferred action, "an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment").
163. See 8 U.S.C. § 1158 (outlining the requirements and procedures for gaining asylum).
164. Indeed, the idea that local authorities could grant asylum is so outlandish that it was made the punchline of a joke in a television show.
165. See "Barney Miller" Asylum (TV episode 1977), IMDB, http://www.imdb.com/title/tt0518996 (last visited Oct. 7, 2011) (discussing a 1977 episode of the TV show Barney Miller entitled Asylum, in which Wojo, a New York police detective, "prematurely grants asylum to a Russian defector").
166. Cf. Plyler v. Doe, 457 U.S. 202, 226 (1982) ("[T]here is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen.").
167. CBS, Inc. v. FCC, 453 U.S. 367, 394 (1981) (quoting FCC v. WOKO, Inc., 329 U.S. 223, 229 (1946)) (internal quotation marks omitted); see also, e.g., Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524 (1978) ("[T]his Court has for more than four decades emphasized that the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments.").
168. Pennsylvania v. Nelson, 350 U.S. 497, 505 (1956). Of course, the United States could sue a state each time a state prosecution or other immigration action interfered with federal choices. See, e.g., Hunt v. United States, 278 U.S. 96, 100-01 (1928) (upholding an injunction against the enforcement of Arizona game laws in a national park when those laws interfered with the regulatory authority of park officials).
169. In re Loney, 134 U.S. 372 (1890).
170. Pennsylvania v. Nelson, 350 U.S. 497 (1956).
171. Cf. Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004) ("The creation of a private right of action raises issues beyond the mere consideration whether underlying primary conduct should be allowed or not, entailing, for example, a decision to permit enforcement without the check imposed by prosecutorial discretion. Accordingly, even when Congress has made it clear by statute that a rule applies to purely domestic conduct, we are reluctant to infer intent to provide a private cause of action where the statute does not supply one expressly.").
172. In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), Justice Scalia voted to reverse a contempt conviction because private attorneys had been appointed to prosecute the contempt instead of the U.S. Attorney's Office: "The very argument given for permitting a court to appoint an attorney to prosecute contempts-that the United States Attorney might exercise his prosecutorial discretion not to pursue the contemners-makes clear that that is the result required.".
173. See California v. United States, 104 F.3d 1086, 1093-94 (9th Cir. 1997) (rejecting California's claim that the attorney general had violated 8 U.S.C. § 1365 (1994) by refusing to reimburse the state for the costs of incarcerating illegal aliens and noting that the attorney general's decision was committed to agency discretion by law and was thus not subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 701(a)(2) (2006)); Arizona v. United States, 104 F.3d 1095, 1096 (9th Cir. 1997) (adopting reasoning from California v. United States to affirm the district court's judgment).
174. Immigration and Customs Enforcement establishes formal enforcement priorities. In 2011, for example, the agency determined that first priority for deportation went to "[a]liens who pose a danger to national security or a risk to public safety," second priority went to "[r]ecent illegal entrants," and third went to "[a]liens who are fugitives or otherwise obstruct immigration controls.".
175. Memorandum from John Morton, Dir., U.S. Immigration & Customs Enforcement, to All Employees of U.S. Immigration & Customs Enforcement 1-3 (Mar. 2, 2011), available at http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf.
176. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 379 (2000).
177. When the Supreme Court, based on the need for a uniform national policy, invalidated a state law prohibiting sedition against the United States, it noted that "[s]hould the States be permitted to exercise a concurrent jurisdiction in this area, federal enforcement would encounter... the added conflict engendered by different criteria of substantive offenses." Pennsylvania v. Nelson, 350 U.S. 497, 509 (1956).
178. Tafflin v. Levitt, 493 U.S. 455, 458 (1990).
179. See generally Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. REV. 698 (2011) (surveying the different features of state enforcement of federal law and attempting to explicate the respects in which enforcing federal laws might allow states to wield power that is at once narrower and broader than traditional regulatory mechanisms).
180. See, e.g., Haywood v. Drown, 129 S. Ct. 2108, 2117-18 (2009) (holding that a state statute divesting state courts of authority to hear claims under 42 U.S.C. § 1983 (2006) was unconstitutional under the Supremacy Clause); Testa v. Katt, 330 U.S. 386, 392-93 (1947) (holding that state courts, granted jurisdiction by Congress over the Emergency Price Control Act of 1942, Pub. L. No. 77-421, 56 Stat. 23 (expired 1947), including the treble-damages provision, could not decline to entertain a claim brought under the Act).
181. Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78-79.
182. Nelson, 350 U.S. at 501 n.10 (invalidating a state sedition law and stating that "[t]here was no intention to resolve particular supersession questions by the Section").
183. Sexton v. California, 189 U.S. 319, 324-25 (1903).
184. Nelson, 350 U.S. at 500.
185. Fox v. Ohio, 46 U.S. (5 How.) 410 (1847).
186. Similarly, a state may address a breach of the peace even if it occurs in connection with a federally regulated activity. See, e.g., Youngdahl v. Rainfair, Inc., 355 U.S. 131, 139 (1957) (upholding a state injunction insofar as it prohibited acts of violence by union members on strike, even though such activities fall within the domain of the National Labor Relations Board).
187. Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146 (1963). In this case, the Court concluded that the regulation of food for sale is "traditionally regarded as properly within the scope of state superintendence.".
188. See, e.g., Murphy v. Waterfront Comm'n, 378 U.S. 52, 96 (1964) (White, J., concurring) ("[T]he States still bear primary responsibility... for the administration of the criminal law; most crimes... are matters of local concern; federal preemption of areas of crime control traditionally reserved to the States has been relatively unknown and this area [may] be at the core of the continuing viability of the States in our federal system."); Barbier v. Connolly, 113 U.S. 27, 31 (1885) (discussing "the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity").
189. E.g., TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW, ABA, THE FEDERALIZATION OF CRIMINAL LAW 5-16 (1998) (discussing the growth of the federal criminal-justice system and the effects of that growth).
190. Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 ANNALS AM. ACAD. POL. & SOC. SCI. 39, 40 (1996).
191. E.g., Abbate v. United States, 359 U.S. 187, 194 (1959) ("We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory.... Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other." (omission in original) (quoting United States v. Lanza, 260 U.S. 377, 382 (1922)) (internal quotation mark omitted)).
192. See, e.g., United States v. Lopez, 514 U.S. 549, 551 (1995) (invalidating part of the Gun-Free School Zones Act of 1990, Pub. L. No. 101-647, § 1702, 104 Stat. 4789, 4844-45 (current version at 18 U.S.C. § 922(q) (2006)); see also United States v. Dorsey, 418 F.3d 1038, 1046 (9th Cir. 2005) (upholding a revised version of the statute that requires the firearm to have traveled in interstate commerce).
193. United States v. Morrison, 529 U.S. 598 (2000).
194. Violence Against Women Act of 1994, Pub. L. No. 103-322, tit. IV, 108 Stat. 1796, 1902-55 (codified as amended in scattered sections of 8, 16, 18, 28, 42 U.S.C.), invalidated in part by United States v. Morrison, 529 U.S. 598 (2000).
195. Morrison, 529 U.S. at 618 ("[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.").
196. See also United States v. Comstock, 130 S. Ct. 1949, 1982 (2010) (Thomas, J., dissenting) ("[T]he duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the States.").
197. S. Ry. v. R.R. Comm'n, 236 U.S. 439, 445-46 (1915).
198. E.g., U.S. CONST. art. I, § 8, cl. 17 (granting Congress the power to enact "exclusive Legislation" for the erection of forts, dockyards, and other "needful Buildings"); see also Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 617-18 (1842) ("[F]or if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be that the state legislatures have a right to interfere....").
199. E.g., Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 538 (9th Cir. 1995) (enjoining state enforcement of state laws on tribal land because of a statute that provided that "[t]he United States shall have exclusive jurisdiction over criminal prosecutions of violations of State gambling laws" (quoting 18 U.S.C. § 1166(d) (1994))).
200. E.g., Pennsylvania v. Nelson, 350 U.S. 497, 509 (1956) (invalidating a state sedition law); Hines v. Davidowitz, 312 U.S. 52, 73-74 (1941) (invalidating a state alien-registration law).
201. E.g., Solem v. Bartlett, 465 U.S. 463, 466 (1984) (affirming a grant of habeas corpus to a tribal member prosecuted by South Dakota for conduct within exclusive federal and tribal jurisdiction).
202. E.g., State v. Smith, 400 S.E.2d 405, 407 (N.C. 1991) (dismissing the defendant's charges and explaining that the state court lacked jurisdiction over a murder committed by a civilian at Camp Lejeune, because "[i]n criminal cases dealing with this problem the federal courts have said the jurisdiction of the United States is exclusive" (citing United States v. Unzeuta, 281 U.S. 138 (1930))).
203. Watters v. Wachovia Bank, N.A., 550 U.S. 1, 14 (2007) ("'Th[e] legislation has in view the erection of a system extending throughout the country, and independent, so far as powers conferred are concerned, of state legislation which, if permitted to be applicable, might impose limitations and restrictions as various and as numerous as the States.' Congress did not intend, we explained, 'to leave the field open for the States to attempt to promote the welfare and stability of national banks by direct legislation.... [C]onfusion would necessarily result from control possessed and exercised by two independent authorities.'" (alterations and omission in original) (citations omitted) (quoting Easton v. Iowa, 188 U.S. 220, 229, 231-32 (1903)). Easton v. Iowa, 188 U.S. 220 (1903), held that a generally applicable state banking statute prohibiting the taking of deposits while insolvent could not be applied to a national bank.
204. E.g., Bowen v. Johnston, 306 U.S. 19, 30 (1939) (holding that because Chickamauga and Chattanooga National Park in the State of Georgia is within the exclusive jurisdiction of the United States, "violations of law occurring on the ceded lands are enforceable only by the proper authorities of the United States").
205. Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (repealed 1943).
206. In 1995, a U.S. district court enjoined many provisions of California's Proposition 187, which involved state police officers in federal immigration enforcement. League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 764 (C.D. Cal. 1995). In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 8, 42 U.S.C.), a statute that contained many provisions dealing with noncitizens, including § 434, which allowed communication between state and local officials and the Immigration and Naturalization Service. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub. L. No. 104-208, div. C, § 133, 110 Stat. 3009-546, 3009-563, added INA § 287(g), 8 U.S.C. § 1357(g) (2006), which allowed for the deputizing of local officers and other cooperation between state authorities and federal immigration officials. IIRIRA also made federal immigration law more enforcement-oriented.
207. See Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New Penology, 17 GEO. IMMIGR. L.J. 611, 637-39 (2003) (describing "the enactment of... the IIRIRA in... September of 1996" and its "emphasis... on enhancing immigration law enforcement"). Many scholars note the relationship between the failure of Proposition 187 and the enactment of federal legislation allowing state action.
208. See, e.g., Raquel E. Aldana, Introduction: The Subordination and Anti-Subordination Story of the U.S. Immigrant Experience in the 21st Century, 7 NEV. L.J. 713, 719 (2007) ("[T]he failure of Proposition 187 became the impetus for Congress' passage of the PRWORA.").
209. Juliet P. Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, 86 N.C. L. REV. 1557, 1590-91 (2008) ("After the courts enjoined California's Proposition 187, the state turned to Congress to push for similar federal legislation.").
210. See generally Douglas NeJaime, Winning Through Losing, 96 IOWA L. REV. 941 (2011) (discussing the mobilizing effects of litigation failure).
211. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).
212. See generally Michael G. Collins, The Federal Courts, the First Congress, and the Non-Settlement of 1789, 91 VA. L. REV. 1515, 1519-20 (2005) (describing the debate regarding the allocation of Article III business to non-Article III tribunals).
213. De Canas v. Bica, 424 U.S. 351, 356 (1976), superseded by statute, Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, sec. 101, § 274A(h)(2), 100 Stat. 3359, 3368, as recognized in Chamber of Commerce of the U.S. v. Whiting, 131 S. Ct. 1968 (2011).
214. Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920).
215. Justice Holmes dissented for himself and three others, but the coalition agreed with the majority on the general point: "I assume that Congress could not delegate to state legislatures the simple power to decide what the law of the United States should be in that district.".
216. Clinton v. City of New York, 524 U.S. 417 (1998).
217. In this context, it is worth noting the many ways in which the Constitution deems treatment of noncitizens to be an exclusively federal matter or at least one in which the federal government should be an available decisionmaker. These include Article I, Section 8, Clause 4, giving Congress the power "[t]o establish an uniform Rule of Naturalization"; Article III, Section 2, Clause 2, giving the Supreme Court original jurisdiction "[i]n all Cases affecting Ambassadors, other public Ministers and Consuls"; Article III, Section 2, Clause 1, creating federal jurisdiction in cases "between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects"; and the Fourteenth Amendment's guarantee of due process and equal protection to "persons" (not, say, citizens), which was done to ensure that noncitizens were included within its protection, see Runyon v. McCrary, 427 U.S. 160, 195-202 (1976) (White, J., dissenting) (discussing the Reconstruction-era history of civil rights laws).
218. John Hayakawa Torok, Reconstruction and Racial Nativism: Chinese Immigrants and the Debates on the Thirteenth, Fourteenth, and Fifteenth Amendments and Civil Rights Laws, 3 ASIAN L.J. 55, 55 (1996) (describing how the historic perception of Asian Americans as "intrinsically foreign and unassimilable" influenced the post-Reconstruction civil rights laws).
219. The Full Faith and Credit Clause, U.S. CONST. art. IV, § 1, is another indicator of the Constitution's fear of local prejudice on the part of the states.
220. See Michael G. Collins & Jonathan Remy Nash, Prosecuting Federal Crimes in State Courts, 97 VA. L. REV. 243, 247-51 (2011) (arguing that it would be unconstitutional to allow state prosecutors to prosecute federal crimes).
221. United States v. Providence Journal Co., 485 U.S. 693, 700 (1988).
222. Abuelhawa v. United States, 129 S. Ct. 2102, 2107 n.3 (2009); see also Gonzales v. Oregon, 546 U.S. 243, 296 (2006) (Scalia, J., dissenting) (recognizing "the policy goals and competing enforcement priorities that attend any exercise of prosecutorial discretion").
223. See Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 HARV. L. REV. 469, 475 (1996) ("Whenever Congress resorts to general statutory language... it necessarily transfers lawmaking responsibility to courts (or prosecutors).").
224. This is equally true in the context of immigration. See, e.g., Hiroshi Motomura, Immigration Outside the Law, 108 COLUM. L. REV. 2037, 2060-65 (2008) (discussing the discretionary nature of enforcing immigration laws).
225. Printz v. United States, 521 U.S. 898 (1997).
226. Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, tit. I, 107 Stat. 1536, 1536-44 (1993).
227. Printz, 521 U.S. at 922 (quoting U.S. CONST. art. II, § 3).
228. Morrison v. Olson, 487 U.S. 654 (1988). Justice Scalia dissented because he did not believe that it was "for [the Court] to determine... how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.".
229. Justice Scalia drove home the power of his point by using the powers of Congress as another example: Is it conceivable that if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legislation, we would inquire whether the matter was "so central to the functioning of the Legislative Branch" as really to require complete control, or whether the statute gives Congress "sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties"? Of course we would have none of that. Once we determined that a purely legislative power was at issue we would require it to be exercised, wholly and entirely, by Congress.
230. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010).
231. For an example of state criminal independence from the federal executive, see Medellín v. Texas, 128 S. Ct. 1346 (2008), which held that the president has no authority to interfere with executions achieved in violation of a U.S. treaty.
232. To the extent that the text of § 287(g) agreements limits the power of ICE to terminate the agreements themselves and to the extent that the agreements' operation has in fact reflected local, rather than federal, prosecution priorities, Free Enterprise Fund calls their constitutionality into question.
233. See RANDY CAPPS, MARC ROSENBLUM, CRISTINA RODRÍGUEZ & MUZAFFAR CHISHTI, DELEGATION AND DIVERGENCE: A STUDY OF 287(G) STATE AND LOCAL IMMIGRATION ENFORCEMENT 1-4 (2011), available at http://www.migrationpolicy.org/pubs/287g-divergence.pdf (assessing the "implementation, enforcement outcomes, costs, and community impacts of the 287(g) program").
234. See 28 U.S.C. § 543 (2006) ("Special attorneys. (a) The Attorney General may appoint attorneys to assist United States attorneys when the public interest so requires. (b) Each attorney appointed under this section is subject to removal by the Attorney General.").
235. U.S. DEP'T OF JUSTICE, UNITED STATES ATTORNEYS' MANUAL § 9-11.242 (rev. ed. 1997), available at http://www.justice.gov/usao/eousa/foia_reading_room/usam (describing the appointment process in more detail).
236. See, e.g., Press Release, U.S. Attorney's Office for the W. Dist. of Mo., Seven Gang Members Indicted for Crack Cocaine Conspiracy (Feb. 10, 2011), available at http://www.justice.gov/usao/mow/news2011/bifford.ind.html ("Under a partnership with the Jackson County Prosecutor's Office, a full-time Special Assistant U.S. Attorney has been designated to focus on prosecuting gang-related crimes in federal court. 'We are utilizing a federal grant in order to make one of our assistant prosecutors available to prosecute gang-related cases in federal court,' said Jackson County Prosecutor Jim Kanatzar.").
237. California v. United States, 104 F.3d 1086, 1094 (9th Cir. 1997) (alteration in original) (quoting Heckler v. Chaney, 470 U.S. 821, 831 (1985)) (internal quotation marks omitted). Arizona's suit was rejected for the same reason.
238. Arizona v. United States, 104 F.3d 1095, 1096 (9th Cir. 1997).
239. Gerald L. Neuman, Discretionary Deportation, 20 GEO. IMMIGR. L.J. 611 (2006) (same).
240. Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 CONN. PUB. INT. L.J. 243 (2010) (same).
241. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).
242. Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).
243. Cf. THOMAS ALEXANDER ALEINIKOFF, DAVID A. MARTIN, HIROSHI MOTOMURA & MARYELLEN FULLERTON, IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 1246-60 (6th ed. 2008) (discussing the PRWORA, which "gave states new authority to decide eligibility for jointly funded federal-state programs... and for state-funded public benefits").
244. Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 YALE L.J. 458, 476-78 (2009).
245. Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 348 (2005) ("To infer an absolute rule of acceptance where Congress has not clearly set it forth would run counter to our customary policy of deference to the President in matters of foreign affairs. Removal decisions, including the selection of a removed alien's destination, 'may implicate our relations with foreign powers' and require consideration of 'changing political and economic circumstances.'" (quoting Mathews v. Diaz, 426 U.S. 67, 81 (1976))).
246. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).
247. Tennessee v. Davis, 100 U.S. 257 (1879).
248. Davis is discussed in Michael G. Collins, Article III Cases, State Court Duties, and the Madisonian Compromise, 1995 WISC. L. REV. 39, 96-97.
249. Cf. United States v. Frade, 709 F.2d 1387, 1402 (11th Cir. 1983) (holding that the president does not have the power to create immigration law by executive order and stating that "[t]his is especially true when the power is exercised in the imposition of a criminal sanction upon persons in the United States, a matter normally within the congressional domain").
250. E.g., Landon v. Plasencia, 459 U.S. 21, 34 (1982) ("[C]ontrol over matters of immigration is a sovereign prerogative, largely within the control of the Executive and the Legislature."); Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442, 456 (1977) (recognizing the "power over immigration" as one of the "sovereign powers that are inherently in the exclusive domain of the Federal Government and critical to its very existence"); Trop v. Dulles, 356 U.S. 86, 98 (1958) (plurality opinion) ("[T]his Court has in the past sustained deportation as an exercise of the sovereign's power to determine the conditions upon which an alien may reside in this country."); Tiaco v. Forbes, 228 U.S. 549, 556 (1913) ("[S]overeign states [such as the United States] have inherent power to deport aliens....").
251. Galvan v. Press, 347 U.S. 522, 531 (1954); see also Miller v. Albright, 523 U.S. 420, 455-56 (1998) (Scalia, J., concurring in the judgment) (quoting the same passage from Galvan).
252. New York v. Compagnie Générale Transatlantique, 107 U.S. 59, 60 (1883).
253. Puerto Rico v. Koedel, 927 F.2d 662 (1st Cir. 1991).
254. The court further cited Fort Leavenworth Railroad v. Lowe, 114 U.S. 525 (1885), which quoted and followed the rule of a New York case that had held that "the rights of sovereignty [are] not to be taken away by implication.".
255. S. Ry. v. R.R. Comm'n, 236 U.S. 439, 448 (1915).
256. The Head Money Cases, 112 U.S. 580 (1884).
257. Assimilative Crimes Act, 18 U.S.C. § 13 (2006). Section 13(a) of title 18 of the U.S. Code provides that conduct that would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place [of federal jurisdiction] is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.
258. But such "statutes, of course, do not confer any regulatory or enforcement jurisdiction on the States." Rice v. Rehner, 463 U.S. 713, 742 n.5 (1983) (Blackmun, J., dissenting); see, e.g., Harbin v. State, 581 So. 2d 1263, 1266 (Ala. Crim. App. 1991) (holding that although a local officer could "make an arrest on [reservation territory,].... an escape from the custody of an arrest which occurred on the [reservation] is a federal offense which must be prosecuted in federal court and not in state court"); State v. Allan, 607 P.2d 426, 434 (Idaho 1980) ("To allow the state of Idaho to assert criminal jurisdiction over a person of substantial Quinault Indian blood, duly enrolled in that tribe, who has not been shown to have taken any steps to achieve emancipation... would be to encroach... on the domain of federal law."); Arquette v. Schneckloth, 351 P.2d 921, 925 (Wash. 1960) (en banc) ("[J]urisdiction over crimes committed by Indians in Indian country... remain[s] in the federal courts.").
259. In re Denetclaw, 320 P.2d 697, 700 (Ariz. 1958) (affirming a grant of habeas corpus).
260. Tennessee v. Davis, 100 U.S. 257, 262 (1879).
261. Of course, many things, like robbery of a federally chartered bank, will be within the state's police power as breaches of the peace or the like
262. In re Loney, 134 U.S. 372, 375 (1890).
263. Ex parte Bridges, 4 F. Cas. 98, 100-01 (N.D. Ga.) (No. 1862), aff'd, 4 F. Cas. 98 (C.C.N.D. Ga. 1875) (No. 1862).
264. Ex parte Bridges, 4 F. Cas. 98, 105 (C.C.N.D. Ga. 1875) (No. 1862).
265. State v. Warren, 539 P.2d 184, 186 (Ariz. Ct. App. 1975).
266. People v. Hassan, 86 Cal. Rptr. 3d 314 (Ct. App. 2008).
267. 18 U.S.C. § 1546 (2006)); see also 8 U.S.C. § 1324c (declaring it unlawful to "forge... any document for the purpose of satisfying a requirement of [the INA]"); 18 U.S.C. § 1546 (punishing "[w]hoever knowingly forges" an immigration document "for the purpose of satisfying a requirement" under the INA).
268. Cf. Van Stuyvesant v. Conway, No. 03 Civ. 3856(LAK), 2007 WL 2584775, at *17 (S.D.N.Y. Sept. 7, 2007) (noting-in the course of holding that the state had jurisdiction over charges of larceny, fraud, and impersonating an attorney, even though the charges involved deception of people involved in immigration proceedings-that "it appears that Petitioner is confusing immigration law matters, over which the federal government retains exclusive jurisdiction, for the crimes he was convicted of in this case, all of which were crimes under New York State law"); People v. Bilus, 804 N.Y.S.2d 670, 674 (Dist. Ct. 2005) (holding that the New York crime of obstructing governmental administration does not apply to the obstruction of federal employees); People v. Arvio, 321 N.Y.S.2d 382, 386 (J. Ct. 1971) (holding that the New York crime of obstructing governmental administration could not be premised on interference with the federal Selective Service System and stating that "[i]t is clear that Congress intended the federal courts exclusively to take jurisdiction of violations of the act and [that] on this ground the informations must be dismissed").
269. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).
270. Pennsylvania v. Nelson, 350 U.S. 497, 504 (1956).
271. Easton v. Iowa, 188 U.S. 220, 230-31 (1903).
272. U.S. CONST. art. I, § 8, cl. 16; see also 10 U.S.C. § 889 (2006) ("Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial may direct.").
273. 18 U.S.C. § 2384 (2006).
274. Of course, other crimes could be committed while transporting an undocumented noncitizen, but that speculative possibility is not enough to warrant state regulation any more than the possibility of additional crimes outside a statute in any other area of exclusive federal jurisdiction. In any event, if there are any crimes that actually fall within the police power, individuals who commit those crimes can be charged without regulating immigration itself.
275. Plyler v. Doe, 457 U.S. 202, 242 n.1 (1982) (Burger, C.J., dissenting).
276. Of course, a state may wish to regulate national banks, active-duty military personnel, or immigration for ends within the police power, such as improving its economy. But a legitimate end cannot justify the impermissible means of invading an exclusive federal power. For example, ill-disciplined members of the U.S. Air Force could make it less likely that a particular base would get a particular assignment that could be of great economic interest to the civilian population. But even to protect its economy, a state may not impose its own version of military discipline on these federal servicemen, nor may it more vigorously enforce provisions of the Uniform Code of Military Justice than the military chooses to.
277. Several Justices have passionately contended that even the government's giving up power is irrelevant to the constitutional question. Justice Thomas has explained that it does not matter whether amici States welcome federal support, particularly financial, for the detention of "sexually dangerous persons": "Congress' power... is fixed by the Constitution; it does not expand merely to suit the States' policy preferences, or to allow State officials to avoid difficult choices regarding the allocation of state funds." United States v. Comstock, 130 S. Ct. 1949, 1982 (2010) (Thomas, J., dissenting). Similarly, in Zschernig v. Miller, Justice Stewart argued that the acquiescence of the solicitor general to a state's exercise of the foreign-affairs power is irrelevant: We deal here with the basic allocation of power between the States and the Nation. Resolution of so fundamental a constitutional issue cannot vary... with the shifting winds at the State Department.... [T]he fact remains that the conduct of our foreign affairs is entrusted under the Constitution to the National Government, not to the probate courts of the several States.
278. See generally Adam H. Kurland, First Principles of American Federalism and the Nature of Federal Criminal Jurisdiction, 45 EMORY L.J. 1, 8-12 (1996) (describing the constitutional limitations that prevent states from prosecuting federal crimes).
279. Charles Warren, Federal Criminal Laws and the State Courts, 38 HARV. L. REV. 545 (1925) (reviewing the nineteenth-century experience with vesting some federal criminal jurisdiction in state courts).
280. See generally ROBERT A. SCHAPIRO, POLYPHONIC FEDERALISM: TOWARD THE PROTECTION OF FUNDAMENTAL RIGHTS (2009) (arguing that polyphonic federalism is more efficient, democratic, and protective of liberties than other forms).