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On Eve of Key Supreme Court Showdown, Schumer Readies Contingency Plan for Reasserting Feds’ Role Over Immigration Matters

During Senate Hearing, Key Arizona Stakeholders Describe Widespread Fallout from SB 1070

Schumer: Arizona Law Should Be Found Unconstitutional, But If High Court Disagrees Congress Will Be Ready


WASHINGTON, DC— Today, on the eve of the Supreme Court case regarding the constitutionality of SB-1070, U.S. Senator Charles E. Schumer announced a potential legislative response in the event that the Supreme Court upholds the controversial Arizona law. Schumer, the Chairman of the Senate Subcommittee on Immigration, revealed the contingency plan during a Senate hearing on SB-1070. 

On Wednesday, the Supreme Court will hear oral arguments on Arizona’s comprehensive immigration enforcement law. At the Senate hearing, Schumer argued that the statute should be found unconstitutional, as current federal law prevents Arizona from enacting its own immigration enforcement laws.

Schumer stated that the Arizona law, written by former Arizona State Senator Russell Pearce and signed by Arizona Governor Jan Brewer in April 2010, marks a major departure from historical precedent and usurps powers previously held exclusively by the federal government. SB 1070 gives police broad authority to detain individuals suspected of being in the country illegally, and makes it a federal crime for any individual to fail at any time to possess documents verifying their immigration status. 

Schumer argued that Congress has already clearly indicated its intent to preempt states from creating their own immigration enforcement regimes, such as SB-1070. 

“It is simply too damaging to our economy and too dangerous to our democracy to have 50 different states be permitted to take their own direction when it comes to immigration policy,” said Schumer. “The Supreme Court should find the Arizona law unconstitutional, but if it doesn’t, Congress will be ready. States should be barred from taking immigration enforcement matters into their own hands and imposing penalties as they see fit. This has always been a role of the federal government. It is impractical to have a patchwork of different immigration laws across the country.” 

In the event that the Supreme Court upholds SB-1070, Schumer is planning a legislative proposal that would expressly preempt states and localities from enforcing immigration law unless they are doing so with the direct consent and supervision of the federal government. Schumer’s proposal would prevent states from enacting their own civil or criminal penalties for violations of immigration law. The legislation would also prohibit state and local law enforcement from detecting, apprehending or detaining violators of immigration law, unless they have been authorized and trained to do so as part of a federal enforcement effort. 

In addition, Schumer’s proposal would aim to reverse the Supreme Court’s recent decision in Chamber of Commerce v. Whiting, which held that federal law does not preempt states from enacting their own state immigration employment verification requirements and penalties. The Chamber of Commerce, business and industry groups widely agree this decision is destructive to local economies and businesses.

Witnesses at the hearing included Pearce, the original author of SB 1070; Arizona State Senator Steve Gallardo, a Democrat who has offered legislation to repeal the state’s controversial law; U.S. Senator Dennis DeConcini, a Democrat and staunch opponent of the law, and; Todd Landfried, spokesman for the Arizona Employers for Immigration Reform.

 A full copy of Senator Schumer’s remarks appears below:

Senator Charles E. Schumer

Examining the Constitutionality and Prudence of State and Local Governments Enforcing Immigration Law

April 24, 2012


Good morning everyone.    At today’s hearing, we will be discussing the constitutionality and prudence of the many state and local immigration laws enacted during the past few years.  In 2011 alone, state legislators from across the country introduced 1,607 bills and resolutions relating to immigration.  By the end of the year, 42 states had enacted 197 new laws.


Tomorrow, the Supreme Court is going to be considering whether the Arizona law, known as SB 1070, is constitutional.  Specifically, the Court will be deciding if states can enact comprehensive immigration enforcement laws designed to promote the “self-deportation” of illegal immigrants.


Five states — Alabama, Georgia, Indiana, South Carolina and Utah — have crafted laws following Arizona’s example.  Court challenges have been filed against all five of those laws, and the outcome of those cases will likely be dictated by the Supreme Court’s decision in the Arizona case.


Discussing both the constitutionality and prudence of these laws is necessary because the Supreme Court will base its decision upon what the Senate has previously said about the role of state and local governments in enforcing federal immigration law. 


The wisdom of the Arizona law is also currently being debated around the country.  For instance, SB 1070 has recently been endorsed as a model for the country by Mitt Romney, the Republican nominee for President.  Others such as Marco Rubio have said they do not believe the Arizona law should be expanded nationwide.


In my view, these state laws are both counterproductive and unconstitutional.


In terms of being counterproductive, the statistics couldn’t be any clearer in terms of the economic damage these laws cause.  In Arizona, studies have shown that after SB 1070 was passed, the convention and tourism industry lost as much as $140 million.  Moreover, the agricultural industry has seen much of their crops destroyed due to a lack of labor.    And, in Alabama, a study by the University of Alabama found that the Alabama law is projected to shrink Alabama’s economy by at least $2.3 billion annually and cost the state at least 70,000 jobs per year.


In terms of being unconstitutional, our founding fathers gave Congress plenary power over immigration law.  The Supreme Court has consistently interpreted the naturalization language in Article I to mean that the establishment of the immigration laws and the manner of their execution are committed solely to the federal government. 


Even though some on the other side want to limit the federal government’s power and increase the power of the states, immigration is not, and never has been, an area where states are able to exercise independent authority. 


This makes sense—both legally as matter of constitutional interpretation--and practically as a matter of sound public policy.  Immigration involves international commerce and sensitive foreign relations.  Just as we would never allow 50 states to have their own inconsistent and independent trade laws, we shouldn’t have 50 states establishing and enforcing their own inconsistent immigration laws. 


And even if states like Arizona say they are only “helping the federal government” to enforce the law, this issue is much like federal tax law, where the federal Internal Revenue Service interprets and enforces the law, as opposed to 50 state agencies going to peoples’ houses to ensure that they properly filed their federal tax returns.


Only federal comprehensive immigration reform can accomplish the three objectives most Americans want to see achieved with regard to immigration—1) ending illegal immigration; 2) fixing our dysfunctional legal immigration system; and 3) addressing the status of the people here without legal status. 


In 2010, many of my Democratic colleagues on this committee released a white paper with me outlining our proposal for immigration reform.  Then, as a good-faith down-payment to encourage negotiations, we passed a $600 million supplemental border security act that: 1) added 1,500 troops on the border: 2) deployed more unmanned aerial drones; and 3) increased border fencing and technology.  


The border bill was hailed by my Arizona colleagues as a significant border security accomplishment that they were proud to co-sponsor.  As a result of this bill, Arizona’s 373-mile border with Mexico is now patrolled by over 5,200 border patrol agents and 300 national guardsmen—a 31% increase from 2008—which has resulted in a 61% reduction in unlawful border crossings over the same period.

And, yesterday, a Pew Hispanic Center study reported that immigration from Mexico has dropped to net zero when comparing the number people entering the U.S. from Mexico to the number of people returning to Mexico.  Some in Arizona might wish to take credit for this, but the study shows this is a national trend based upon increased federal enforcement at the southern border and decreased availability of jobs for foreign workers. 


We repeatedly invited our Republican colleagues to sit down with us and discuss how best to reform our broken immigration system in a manner both parties can support.  To this date, our colleagues will not even sit down with us and discuss comprehensive immigration reform legislation.  Finally, when small non-controversial immigration matters are proposed that can help create jobs, they are blocked in the Senate.


Consequently, states are now taking matters into their own hands and are passing a multitude of immigration laws that touch upon a variety of subjects such as employment-authorization and verification, border security, work visas, and higher education—areas that have always been the exclusive province of the federal government.


I believe it is simply too damaging to our economy, and too dangerous to our democracy, to have 50 different states doing 50 different things with regard to immigration policy.  I also believe that Congress has already clearly and repeatedly indicated its intent to preempt states from creating their own immigration enforcement regimes, which is why I believe SB 1070 and laws like it are unconstitutional. 


For instance, in 1997, Congress passed Section 287(g) of the Immigration and Nationality Act, which allows state and local law enforcement to enter into partnerships with ICE to conduct immigration enforcement within their jurisdictions.  In enacting 287(g), Congress made it clear that it did not want states like Arizona taking immigration enforcement matters into their own hands, and instead wanted state officials to act with the guidance, training, and supervision of the federal government. 

In addition, Congress explicitly wrote employment verification laws that were designed to punish employers rather than employees for violations of immigration law.  Arizona, by contrast, has decided to criminalize the individuals who seek work to feed their families.  This conflict-of-law plainly contravenes our stated intent in passing numerous federal immigration workplace statutes. 


I am therefore announcing today that should the Supreme Court choose to ignore these plain and unambiguous statements of Congressional intent and uphold SB-1070, I will introduce legislation which will reiterate that Congress does not intend for states to enact their own immigration enforcement schemes. 


My legislation will re-emphasize that state officials can only engage in the detection, apprehension, and detention of unlawfully present individuals if they are doing so pursuant to an explicit agreement with the federal government and are being supervised and trained by federal officials.


States like Arizona and Alabama will no longer be able to get away with saying they are simply “helping the federal government” to enforce the law when they are really writing their own laws and knowingly deploying untrained officers with a mission of arresting anyone and everyone who might fit the preconceived profile of an illegal immigrant.


My legislation will also re-emphasize that state and local governments are preempted from enacting their own employment verification laws and penalties.  Federal preemption of employment verification law has been endorsed by the U.S. Chamber of Commerce and many other business groups and trade associations.


I hope my colleagues on both sides of the aisle will join me in this effort in the event it becomes necessary.


I now look forward to hearing from our distinguished panel. 


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