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>> 167 6 Broken Mirror The Unconstitutional Foundations of New State Immigration Enforcement Gabriel J. Chin and Marc L. Miller The mirror-image theory of cooperative state enforcement of federal immigration law proposes that states can help carry out federal immigration policy by enacting and enforcing state laws that mirror federal statutes. The mirror-image theory provided the legal foundation for Arizona’s controversial and sweeping Support Our Law Enforcement and Safe Neighborhoods Act—better known as SB 1070.1 The rejection in Arizona v. United States2 by the United States Supreme Court of all of the Arizona provisions that were claimed to mirror federal law sets the stage for challenges and further policy twists in other states that enacted similar and in some cases even more aggressive state immigration laws. This includes Alabama’s harsh law enacted in June 2011, Georgia and Indiana statutes enacted in May 2011, and a more moderate state law (“the Utah compromise”) enacted in March 2011. All of these statutes are called into question by the Supreme Court’s decision. However, Arizona v. United States may not drive the stake all the way through the coffin. It did not specifically address the mirrorimage theory. There is an argument that the decision should be read narrowly. One provision struck down by the Court made it an Arizona crime to fail to register with the federal government; the Court 168 > 169 claim an entirely new level of autonomy and discretion for states, an autonomy that has been emphatically rejected by the Court. Through this newfound power, states seek to create and carry out their own immigration-enforcement policies—using their own officers, proceeding in their own courts, and imposing their own punishments, including imprisonment in state prisons. The explicit purposes of SB 1070 and its copycats are to “make attrition through enforcement the public policy” of the state and to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”9 As proponents of SB 1070 and its imitators often explain, their hope is that illegal immigrants will “self-deport.”10 A plain reading of a long line of Supreme Court cases suggests that states have no intrinsic sovereign authority to impose criminal sanctions for what they regard as misconduct involving immigration, nor do they have the authority to induce the self-deportation of noncitizens they deem undesirable. Proponents of SB 1070 and similar laws tried to square the circle by claiming that these laws do not conflict with federal law and policy but instead are efforts at cooperative enforcement. States may regulate immigration, the argument goes, so long as state laws are nearly identical to federal laws. Part 1 briefly reviews the constitutional text and other legal authority that recognizes exclusive federal control over immigration policy. Saying that federal control is exclusive does not on its own answer the question of whether states can play any role in immigration enforcement —they can and do—or whether states can enact laws incidentally impacting immigration policy—they can. But the recognition that immigration is one of the clearest areas of sole federal authority—along with other matters such as national security and the creation of a single currency—raises the question of whether states can identify either a federal foundation or some other constitutional authority for their new immigration laws and policies.11 Part 2 explores the cases and statutes on which the claim of authority for state cooperative enforcement rests. Although both federal case law and the Immigration and Nationality Act (INA)12 recognize a state role in federal immigration enforcement, these authorities contemplate 170 > 171 duty to carry out the laws to state officers who are wholly outside of presidential control. Accordingly, even if Congress invited the states to legislate in the core immigration sphere, the resulting state laws would still be unconstitutional. I. The Federal Power to Regulate Immigration Traditionally, regulation of immigration has been a matter reserved for the federal government. Yet not all state laws that affect immigration or immigrants are automatically unconstitutional. Instead, the Supreme Court has examined whether a given state law is aimed at a legitimate state interest or whether it intends to regulate immigration itself. If a state law is aimed at a legitimate state interest, the Court will examine whether the law interferes or conflicts with federal measures and is, therefore, preempted. According to proponents of the new state criminal immigration laws, the principle of cooperative enforcement...

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