State of Arizona et al. v. United States, Amicus Brief for U.S. Border Control and English First Foundation, et al. in the U.S. Supreme Court

Michael Harless Constitutional Law, U. S. Supreme Court

Today our firm filed an amicus brief in the case of State of Arizona et al.v. United States in the United States Supreme Court in support of petitioners’ petition for a writ of certiorari. Our brief argues that it is the preeminent duty of the Supreme Court to preserve the balance between the federal and state governments struck by the United States Constitution.

While Article VI of the Constitution provides that constitutional federal law is the supreme law of the land, it is incumbent upon the courts to remember that the powers of Congress are few and definite, while the powers of the State are many and indefinite. Indeed, it is even more critical to recall that the governments of the original 13 states preceded the government of the United States both in time and in right. If this truth is forgotten, the Supremacy Clause will be misused, subordinating the several states to the national government when the Constitution is replete with provisions designed to preserve the States as sovereign political communities with reserved powers to protect and to preserve themselves as free and independent states.

Purporting to apply the Supreme Court’s preemption doctrine, the U.S. Court of Appeals for the Ninth Circuit disregarded this fixed federalist principle. Instead of applying the ordinary presumption against preemption, the Ninth Circuit presumed that an Arizona law designed “to discourage and to deter the unlawful entry and presence of aliens” was a regulation of immigration and naturalization, and was therefore, within the exclusive province of the federal government.

Had the Ninth Circuit correctly applied the presumption against preemption, it would have recognized that the States have traditionally inquired into the status of their residents’ United States citizenship to determine whether they met the constitutional standard of state citizenship as defined by the Fourteenth Amendment. Because one’s U.S. citizenship determines whether a resident of a state is a state citizen, states have a legitimate interest in the enforcement of the nation’s immigration and naturalization laws, lest they be overrun politically and economically by persons illegally residing in the state.

In the case of Arizona, the state’s interest is even more acute and pronounced. Faced with a veritable horde of foreign invaders from the south, the Arizona state legislature adopted a policy of “attrition” as a means of self-defense. Not only did the Ninth Circuit disregard this purpose, it ignored that, under Article IV, Section 4, the federal government was obliged to stop this invasion, and that Article I, Section 10 expressly reserved to the states the power to defend themselves against invaders.

The express reservation of power in the states to repel an invasion need not await an actual invasion, nor a declaration of war. It is enough that the state is in imminent danger for it to draw on its reserved power of self-preservation. According to the Ninth Circuit, however, Arizona must rely on the federal government’s discretion in the enforcement of its immigration and naturalization laws. But the federal government has contributed to — not alleviated — the danger by a decade of bi-partisan neglect of Arizona’s plight that threatens public solvency, especially in the provision of educational services to millions of illegal aliens and their families.

Our amicus brief was filed on behalf of:
U.S. Border Control
U.S. Border Control Foundation
Policy Analysis Center
English First Foundation
English First
Conservative Legal Defense and Education Fund
Virginia Delegate Bob Marshall
Pennsylvania Representative Daryl Metcalfe
Oklahoma Representative Charles Key
Maryland Delegate Don Dwyer
Wyoming Senator Kit Jennings
Utah Representative Curtis Oda
Washington Representative Matt Shea
Iowa Representative Kent Sorenson

Link to brief