Is Arizona's Immigration Act Constitutional?

So, you've probably already heard that Arizona has either passed a "revolutionary" immigration law, or a "revolting" immigration law. The question is whether or not they are allowed to do that. There is no end to the liberals that are marching to microphones and blasting Arizona over this. You want to get a laugh? Read this editorial. Many on the right (as in "side of the aisle" and not necessarily "not wrong") are supporting the new Law.

What caught me by surprise was that Judge Andrew Napolitano has come out very much against this Act on "Your World With Neil Cavuto." He declares it un-Constitutional and cites a Supreme Court Decision to support his view. Well, not being one to always accept everything I read or hear, I looked into it.

The case cited was:

Hines vs.. Davidowitz (1941)

Pennsylvania passed Alien Registration Act in 1939.

Requirements of Aliens (some exceptions existed):

- Register once/year

o Provide info required by statute

o Provide “other” info that the Dept. of Labor and Industry (DoLI) wants

- Pay $1 annual fee for Registration

- Carry Alien ID card received when registering

- Show card whenever demanded by police or agent of DoLI

- Show card when registering a motor vehicle or getting license to operate one

Consequences of Non-compliance:

- Non-Exempt Not Registering:

o Fine of not more than $100

o Jail sentence not more than 60 days

o Both

- Not carrying ID card or failing to show it upon proper demand:

o Fine of not more than $10

o Jail sentence nor more than 10 days

o Both

Those are the basics of the Pennsylvania Alien Registration Act passed in 1939

In 1940, the Federal Government passed the Alien Registration Act (aka the Smith Act). While this Act was more geared towards Sedition, it “provided for the registration and fingerprinting of aliens living in the United States and declared it unlawful to advocate, teach, or belong to any group advocating the forceful overthrow of any government in the United States.”

Requirements:

- Single Registration of aliens 14 years old or older

- Detail info specified by the Act and other info as required by the Commissioner (with approval from the Attorney General)

- All aliens get fingerprinted during Registration

Also provided:

- Federal Registration files were to remain secret.

- No requirement to carry registration card

- Only willful failure to register was penalized

o Fine of not more than $1000

o Jail sentence of not more than 6 months

o Both

According to the Defense, the State’s Law was Constitutional when it was passed. That left the only question as whether the State’s Law was “in abeyance” of the Federal Law, or if both the State and Federal Governments have “concurrent jurisdiction” to require registration.

Plaintiff argument invalidating the Pennsylvania Act was fourfold.

1. Denies equal protection of law to resident aliens

2. Violates Section 16 of Civil Rights Act of 1870

a. “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

3. Exceeds Pennsylvania Constitutional power for requiring the registration

4. Contended that the Federal Act of 1940 superceded Pennsylvania’s Act if the state even had concurrent power with the Federal Government in this area

The Supreme Court did not make any rulings on the first 3 contentions. Their only answer regarded the 4^th contention.

1. The Federal Government had the supreme power “over immigration, naturalization and deportation …”

2. Federal Acts are supreme law of the land over State Acts

3. According to Article VI of the Constitution, states can’t add to or detract from the force an defect of Federal Acts

The Supreme Court found in favor of the plaintiffs – against the State Act. The conclusion was that the “power to restrict, limit, regulate and register aliens as a distinct group,” was not an eternally concurrent power of the State and Federal Governments. Thus, any State statute was subordinate to the Federal statute.

At that time of this case, there was no Federal requirement to carry documentation at all times. Title 8, Chapter 12, Subchapter II, Part VII, §1304 of the United States Code specifies that:

“Every alien, eighteen years of age and over, shall at all times carry with him and

have in his personal possession any certificate of alien registration or alien

registration receipt card issued to him pursuant to subsection (d) of this section.

Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.”

There also wasn’t an annual registration requirement or an annual fee for registration. All 3 of the PA Act requirements added to the force of the Federal act. As such, the Pennsylvania Act was invalidated

Here is where the difference between the PA Act and the AZ Act comes into play. The AZ Act does not add any force to the Federal Act. Nor does it detract from that same force. The penalties in the AZ Act are the penalties listed out in the Federal Act.

Now, I freely admit to not being a Constitutional scholar or a lawyer. I also haven't played one on TV. I didn't stayed at a Holiday Inn Express last night and perhaps never have. But, what I am a concerned American. It isn't easy to understand United States Code and it definitely takes a lot of time. I took the time yesterday and today. According to what I've read and how I've processed it, the Arizona Act looks like it will pass Constitutional muster.

To use my favorite quote from Bill O'Reilly, "What say you?"