SB1070 and Field Preemption

As the rumors that the federal government will file a lawsuit against Arizona regarding SB1070 continue to grow, there have been rumors that the federal suit will focus on a legal precedent known as 'Field Preemption.'

Arizona State Attorney General, Terry Goddard, who is also a candidate for Governor, has removed himself from his responsibility of defending the state from any lawsuits regarding SB1070. The full story on this latest development can be read at the Arizona Daily Sun here.

In a recent television interview with KGUN 9 ABC's local news affiliate (which can be seen here) Attorney General Goddard noted that the federal lawuit would be based on the Field Preemption precedent. A portion of the interview is below:

To date there are five lawsuits pending against SB1070. They argue the state violates the constitution because federal law supersedes state law and, therefore, only federal agents have the jurisdiction to enforce immigration laws. Goddard said, "That is the argument. It's called field preemption. Does the federal law command the field to such an extensive degree that no state law is permitted."

Field Preemption is not something anyone other than legal scholars are usually familiar with. I was fortunate enough to be a part of a briefing from MALDEF National President Tom Saenz on and the legal frame work that was being used in lawsuits against SB1070.

MALDEF and several other civil rights advocacy organizations have filed a law suit against SB1070 and Field Preemption is one of the clauses cited in the brief. The full suit can be seen here.

According to my notes from the briefing Field Preemption comes from the Supremacy Clause in Article VI Clause II of the Constitution. Essentially the clause notes that federal laws made in keeping with the Constitution and treaties made with foreign nations are under the strict sovereignty of the federal government.

Within this clause comes the idea that if the government has established a field of command or has passed legislation that has established federal jurisdiction then a state cannot write a similar law.

Also established in the Supremacy Clause is that only federal law can regulate legislation between the United States and foreign entities. Immigration law is federal because it  concerns dealings with a foreign country.  Under this clause a state cannot pass legislation that deals with a foreign country. That right is clearly delineated under the constitution to the federal government.

SB1070 is incredibly similar to the 287 (g) program, not to mention that it is already a federal offense to be in the country illegally.

Interestingly enough in the same interview Attorney General Goddard opines that the Arizona law does not breach the Field Preemption clause.

Goddard says the state has a strong case against the legal challenges filed against the constitutionality of SB1070. Nine On Your Side's Steve Nunez asked, "Based on what you do know do you feel confident that Arizona could win any legal challenge against SB1070?" Goddard said, "It's a very tough issue but I think, yes, the state could win the challenge on the jurisdiction angle."

He then continues on to note that:

SB1070 is written as an alternative law that's consistent with federal immigration law. Goddard said, "The standard is incredibly high. Courts, federal courts especially, do not like to stop state's who are trying to implement a particular program and so they very seldom unless they can see a clear jurisdictional bar or on its face civil rights violation they're very unlikely to interfere."

Ironically, Attorney General Goddard indicated that if he was elected Governor he would overturn the law, saying that he would instead focus state resources on securing the border.