Just days after Arizona Governor Jan Brewer stated that the Arizona border with Mexico was “out of control,” the Arizona legislature passed legislation that would make it a violation of state law for individuals to be in Arizona without proper documentation. The bill would permit law enforcement personnel to stop and verify the documentation of anyone suspected of not being in Arizona legally. Importantly, this legislation does not rely upon the enforcement of federal immigration law, but makes it a criminal violation to be in Arizona without proper documentation. With the weakening of the Section 287(g) program by U.S. Department of Homeland Security Secretary (and former Arizona Governor) Janet Napolitano, this legislation will help Arizona exercise its traditional police powers over its jurisdiction more effectively.
The legislation awaits signature by Governor Brewer. As Heritage argued in Controlling Illegal Immigration: State and Local Governments Must Do More:
state and local governments did not cede their inherent police powers when the Constitution was ratified….[b]y passing interior enforcement legislation, states can have the authority to enforce their own laws dealing with illegal aliens and those who employ, house, or otherwise aid them….After all, it would make little sense if state and local governments were left powerless to deal with illegal aliens in their own jurisdictions. Absent a criminal violation, illegal aliens could openly flout their presence in cities and states across America.
As the Supreme Court noted in Plyer v. Doe, 457 U.S. 202, 228 (1982), “Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.”
Arizona is flexing its federalist muscles to deal with a problem within the state. Let’s hope Governor Brewer defends the federalism principles contained in the Ninth and Tenth Amendments of the U.S. Constitution and signs the legislation.