Federal supremacy in immigration, a double-edged sword for Trump

Seven states currently have passed or are attempting to pass laws that criminalize migrants entering their territory. All have been blocked, suspended, or are pending litigation, challenged as unconstitutional. The Supreme Court has ruled on these issues and has already struck down some, most recently last week with a Florida law. Although these legislative initiatives are firmly in line with President Donald Trump’s own immigration agenda, for the justices, the content is secondary; the main point is that individual states cannot legislate on immigration. According to the Constitution, this area falls under the exclusive jurisdiction of the federal administration. This is what is known as the Supremacy clause of the U.S. Constitution, a double-edged sword that equally prevents one state from opening its doors to immigrants or another one from closing them even more drastically.

The Florida case began in February, when the Republican-controlled state legislature passed SB 4-C in a special session. The law, which allows the arrest of undocumented immigrants entering the state from elsewhere in the U.S., sought to bolster the immigration policies of President Trump’s administration locally, but was quickly challenged in court. In early April, a federal judge halted its enforcement, ruling that it was potentially unconstitutional. Still, at least two people were wrongly charged under the law, the AP reported Wednesday.

Florida Attorney General James Uthmeier deliberately gave law enforcement permission to disobey the court’s ruling and was held in contempt. Uthmeier argued that the state law was not in conflict with, but rather complied with, federal law. He asked the Court of Appeals to overturn the judge’s decision and made an emergency request to the Supreme Court in June. A few days ago, the nation’s highest court, which has handed Trump numerous victories in the last month, rejected Uthmeier’s arguments: a state cannot independently legislate on immigration.

In the appeal, Florida argued that states “retain an inherent sovereign authority to protect their citizens by assisting in the enforcement of federal immigration law,” and that Florida sought to “assist the United States in curbing illegal immigration.” The Supreme Court held that while the goal is to “assist” the federal government’s agenda, the Constitution is clear about the fact that immigration falls under federal jurisdiction.

It’s a long-standing issue. The most emblematic case is Arizona, which in 2010 passed a law requiring police to check immigration status during routine stops if they suspected someone was undocumented. The law was suspended by the Supreme Court, after determining that the federal government has exclusive authority over the admission and deportation of immigrants, explains Kevin Johnson, a law professor at UC Davis in California, who has written extensively on the topic.

“States cannot have their own immigration laws,” Johnson says. “The United States government may allow states to assist in the enforcement of immigration laws in certain ways. However, immigration regulation is the exclusive jurisdiction of the federal government. Federal law is the supreme law of the land under the Supremacy Clause of the Constitution. That is, state immigration laws are superseded by federal immigration law.”

This year, Florida has sought to position itself at the forefront of the country’s anti-immigrant offensive, promoting raids, collaborating with local authorities, and building new detention centers laden with symbolism like the now infamous Alligator Alcatraz. This has been part of a broader effort to appeal to President Trump’s supporters, and even to Trump himself, by adopting measures supported by the MAGA movement.

Professor Muzaffar Chishti of the Migration Policy Institute, an independent think tank specializing in immigration policy, says Florida’s attempt with SB 4-C, despite legal precedent, denotes a clear “political motivation.” “It seems to have been more of an attempt to send a political message,” Chishti said, “like all bark, no bite.” “The Attorney General [James Uthmeier] was tweeting in real time, ‘Even if I get held in contempt, I’m proud to have done this,’” essentially saying, “We’re for law enforcement, even more strongly than President Trump would like.”

The Supreme Court’s analysis is preeminent, the professor explains. For example, before 1996, some states had their own laws for employers who hired undocumented workers. The court ruled at the time that they could do so, since there was no conflict with federal law. But in 1996, Congress passed the Illegal Immigration Reform Act (IIRIRA), which significantly tightened policies, especially for undocumented immigrants. The subsequent Arizona ruling is consistent with that law.

“The Arizona case is the emblematic example in terms of immigration policy, essentially for the same reasons as the Florida case,” Chishti noted. UC Davis’ Johnson said the Florida ruling “sends a clear message that it will not alter federal primacy in immigration matters” and that other states “should take note of the decision.”

Currently, in addition to Arizona and Florida, Alabama, Georgia, Texas, Iowa and Tennessee have laws or proposals that are being challenged for violating federal supremacy in immigration matters. Many are unlikely to withstand the Supreme Court’s scrutiny, although some, the milder ones, such as Georgia’s, which merely mandates cooperation by state forces in the enforcement of federal laws, may be upheld.

On the other hand, Democratic states and cities considering ways to resist Trump’s crusade against migrants and defend their residents will also take note.

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