Illegal Immigration and Fugitive Slaves
One way of thinking about the new Arizona statute on illegal immigration is through a comparison with the debate over state regulation of fugitive slaves during the antebellum period. Now before the angry comments start pouring in, I’m not saying that people who favor more border security are like slaveowners or that those who are here illegally are like slaves. What I mean is that in both cases there was a controversial issue that turned on whether there should be exclusive federal authority or a diverse set of state policies.
The Fugitive Slave Clause of the Constitution was implemented initially by the Fugitive Slave Act of 1793. By the 1830s, though, a number of free states passed laws that made it a crime to catch or aid in the capture of fugitive slaves. Other free states insisted on certain procedural protections for those alleged to be fugitives, otherwise free African-Americans would be subject to what amounted to legalized kidnapping.
In Prigg v. Pennsylvania, the Supreme Court held that these state statutes were invalid because the Fugitive Slave Clause (even though it was not in Article One, Section 8) gave the federal government exclusive power over the subject. In other words, states could not legislate at all on this topic — either to help or hinder slave captures. Chief Justice Taney concurred but argued that state laws that furthered the federal policy by giving aid to slave catchers were not unconstitutional. One could view the Court’s position as a compromise that attempted to take the entire topic off of the topic even though it was probably inconsistent with preemption principles. Moreover, in practice slave catchers in the North could not operate well without the protection of state law or the aid of state officials. (Indeed, Prigg contained language similar to the modern Supreme Court’s anticommandeering doctrine.)
Now we have a similar issue. States like Arizona want to crack down on illegal immigration. Others want to be sanctuaries for them and refuse to cooperate with deportations. One solution to this would be to say that all state regulation of the subject is barred. That is not neutral with respect to outcomes, but it would channel all reform efforts to Washington. Or courts could say that only state laws that assist immigration policy as set by Congress is permissible. Of course, that would require someone to determine what that policy is. The major problem in immigration policy, it seems to me, is that the country is uncertain what it wants. Is illegal immigration a harm or a benefit? Should we be deporting people or giving them amnesty? Thus, courts that go with something other than “states can’t regulate this at all” might have a hard time reasoning their way to a conclusion.