The U.S. Court of Appeals for the 9th Circuit in U.S. vs. Arizona today struck down that state’s immigration law. As I have believed from the get-go and as the appellate court found, the law was preempted by federal law.

Conservatives may pooh-pooh this as the work of a liberal court that is frequently reversed by the Supreme Court. So I will focus on the concurrence by Judge John Noonan, a respected conservative judge (not to mention a former law professor of mine.) His opinion, I would suggest, is compelling and should cause conservatives to rethink their fondness for state solutions to a federal problem.

Noonan wrote at the onset:

I write separately to emphasize the intent of the statute and its incompatibility with federal foreign policy.

He then went through each section of the statute. On Section 1:

This section of the act constitutes an authoritative statement of the legislative purpose. The purpose is “attrition,” a noun which is unmodified but which can only refer to the attrition of the population of immigrants unlawfully in the state. The purpose is to be accomplished by “enforcement,” also unmodified but in context referring to enforcement of law by the agencies of Arizona. The provisions of the act are “intended to work together.” Working together, the sections of the statute are meant “to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”

It would be difficult to set out more explicitly the policy of a state in regard to aliens unlawfully present not only in the state but in the United States. The presence of these persons is to be discouraged and deterred. Their number is to be diminished. Without qualification, Arizona establishes its policy on immigration.

He reviewed the primacy of federal power in foreign policy, including immigration, and concluded:

If we read Section 1 of the statute, the statute states the purpose of providing a solution to illegal immigration into the United States. So read, the statute is a singular entry into the foreign policy of the United States by a single state. The district court properly enjoined implementation of the four sections of the statute.

The third member of the panel, Judge Carlos Bea,disagreed with the two other judges’ ruling striking down Section 2(B) that “provides, in the first sentence, that when officers have reasonable suspicion that someone they have lawfully stopped, detained, or arrested is an unauthorized immigrant, they ‘shall’ make ‘a reasonable attempt . . . when practicable, to determine the immigration status’ of the person.’” The majority found that this conflicted with the federal enforcement scheme that requires cooperation between law enforcement and the federal government. Noonan dissented here, finding that “Congress has clearly expressed its intention that state officials should assist federal officials in checking the immigration status of aliens, see 8 U.S.C. § 1373(c), and in the ‘identification, apprehension, detention, or removal of aliens not lawfully present in the United States,’ 8 U.S.C. § 1357(g)(10)(B).”

Bea continued: “I concur with the majority that Section 3, which penalizes an alien’s failure to carry documentation as required by federal immigration statutes, impermissibly infringes on the federal government’s uniform, integrated, and comprehensive system of registration which leaves no room for its enforcement by the state. I also concur with the majority that Section 5(C), which penalizes an illegal alien for working or seeking work, conflicts with Congress’s intent to focus on employer penalties.”

And as to Section 6, Bea dissented from the majority’s holding that that state police officers have no authority to enforce without a warrant the civil provisions of federal immigration law. He dissected, in rather scathing terms, the majority’s decision:

Section 6 merely authorizes Arizona police officers to make warrantless arrests when they cooperate in the enforcement of federal immigration law — as invited to do by Congress. See 8 U.S.C. § 1357(g)(10). For its newly-minted-but-not-argued position, the majority relies extensively on 8 U.S.C. § 1252c — a code section not cited in support by the United States — misinterpreting its meaning and putting this circuit in direct conflict with the Tenth Circuit. The majority also ignores clear Supreme Court precedent . . .

I examine thesepinion in some detail for two reasons. First, preemption doctrine requires a close reading of the statute and analysis of its purpose. Objections to a state statute cannot be brushed off because the federal government is “not doing its job.” That may be true, but this is a political and not a legal argument. Second, if immigration exclusionists think they are going to get a more satisfactory analysis from judges than the one rendered by Judge Noonan they are, I would suggest, kidding themselves. A decision making, at best, Swiss cheese of the state’s law, an indication of how difficult it is to skirt the federal government’s dominance in the field of foreign policy and border control.

A final observation: Conservatives are making a principled argument regarding Obamacare on the Constitution’s commerce clause in support of the federal system of government. That same structure that limits federal power also limits state power. They should be faithful to the words and intent of the Constitution in both situations