The Job The Federal Government Won't Do

Immigration is one of the specific powers delegated to the Federal Government. There is no concurrent jurisdiction given to the States for immigration, however, the States still retain a right to enforce their own laws. Can the States use their sovereign police powers to take action to enforce immigration law indirectly?

Last summer, the Chief of Police in a town in New Hampshire found a novel solution to the problem of illegal aliens: he charged the aliens with criminal trespass. It was widely expected that the defense would raise a preemption claim since ICE declined to get involved. Under such a claim, the defense would argue that federal enforcement of immigration held precedence over state enforcement, and if the Federal Government did not prosecute the aliens for immigration violation, the State could not charge them with criminal trespass. Unfortunately, the State AG declined to pick up the gauntlet, but at the time, I wrote an opinion on the merits of the preemption claim. Given the debates raging over the issue of illegal aliens today, I thought I would offer a condensed version of that opinion here.

The doctrine of Supremacy comes from Article 6, Clause 2 of the Constitution which declares: "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.”

The framer's intent, clearly, was not to restrict State authority, but rather

1) To establish precedence in cases of concurrent jurisdiction

"It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.” (Hamilton, Federalist 33)

2) To ensure uniformity of interpretation

"The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.” (Hamilton, Federalist 80)

In Pennsylvania v Nelson (1956), it was determined that courts are to look to the pervasiveness of the federal scheme of regulation, the federal interest at stake, and the danger of frustration of federal goals in making the determination as to whether a challenged state law can stand. In other words, where the state law and the federal law are not in conflict, the question that needs to be answered is whether or not state enforcement of a criminal offense would hinder federal enforcement of the same offense.

Thus, there are 2 questions which must be addressed:

1) Are criminal trespass and illegal immigration status the same offense? If the answer is no, then there cannot be a preemption claim.

2) If the answer to that is yes, would the state enforcement preclude federal enforcement? Again, if the answer is no, there cannot be a preemption claim.

To the first question, we need merely examine the circumstances under which both violations arise. If it is possible to have the one without the other, the current view within the court is that they must be construed as different (in Cipollone v Liggett Group, 1992, 7 justices held that federal statutes must be read narrowly for preemption purposes [i.e., a presumption against preemption]).

The law made under the Constitution is expressly for the purpose of setting uniform rules for naturalization (section 8, clause 4). There is nothing within the Constitution that can be construed as a provision regulating the conduct of individuals within the context of criminal trespass (which would be the express purpose of a state law). Therefore, the two laws are distinct and under the test of Cipollone, the preemption claim must fail. The state is free to try the alleged violators.

However, supposing that the Courts were to rely on the “frustration of federal goals” aspect. In such a circumstance, we must examine the effect of state enforcement. It first must be noted that the claim to precedence only exists when there is a conflict between the two laws:

"If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” (Hamilton, Federalist 78)

When no such conflict exists, the principle of Pennsylvania v Nelson holds. We must examine the enforcement rules to see if the federal criminal enforcement is somehow precluded. If a law provided for a statute of limitations provision that “does not run during any time when the accused is continuously absent from the state or has no reasonably ascertained place of abode or work within this state” (N.H. Criminal Code 625:8) for example, a State could elect to delay prosecution of the alleged violators until such time as the conditions could be reasonably met. That fact alone sufficiently proves that state enforcement would not preclude federal enforcement of immigration law.

In the event that prosecution is not delayed, however, we must examine the possible penalties for a potential conflict. Imprisonment or conditional discharge provisions in the law would present a mechanism for precluding federal enforcement, and potentially result in a finding of preemption. However, since ICE routinely declines to prosecute immigration violations, they have in effect vacated the field of criminal enforcement they had previously occupied under Pennsylvania v Nelson. Therefore, even though the test for preemption is “would” and not "did,” the state would be given de facto authority to prosecute (and consequently to jail or to place on conditional release any person found guilty of criminal trespass).

In conclusion, the application of the doctrine of preemption must fail given the current view of the court as expressed in Cipollone requiring a narrow interpretation of preemption claims. The States have numerous mechanisms available to ensure that enforcement of state law does not preclude federal enforcement. Finally, by declining to prosecute the federal offense, the state has been granted de facto authority to prosecute the criminal trespass. The States are free to do the job the Federal Government won't. Book'em, Dano.