Arizona Dreamin’: Patchwork Laws, Twilight Status, and Federal Enforcement Priorities

The Supreme Court’s decision in Arizona v. United States striking down three of the four challenged provisions of S.B. 1070 came as a relief to the U.S. government and to many immigrant advocates. It also came on the heels of Deferred Action for Childhood Arrivals (DACA), a new policy announced by the Obama Administration just ten days earlier, granting immigration relief to qualified individuals who had come to the United States as children, the so-called DREAMers. After years of fruitless efforts to pass the DREAM Act into law, the Administration concluded that it lay within its prosecutorial discretion to defer the deportation of these individuals and grant them work authorization. A conservative backlash followed. In his dissent in Arizona, Justice Scalia attacked the policy, asserting that it would assure immunity for thousands of Arizona’s 400,000 illegal immigrants. Lamar Smith, Chair of the House Judiciary Committee, sent a letter to John Morton, the director of Immigration and Customs Enforcement, labeling the policy an “amnesty,” “an overreach of executive branch authority,” and a “magnet for fraud.” President Obama’s decision to grant relief to the DREAMers appears to have been adopted in anticipation of the Court’s ruling in Arizona. This essay thus explores the implications of the Court's decision for the Administration’s new policy. The majority in Arizona recognized that there are twilight statuses which accord noncitizens protection from deportation. By acknowledging the ties that bind immigrants to our communities rather than focusing strictly on their legal status, it underscored the important role of discretion and validated a model of immigration -- what Professor Hiroshi Motomura of UCLA Law School calls “immigration as affiliation” -- that embraces a pathway to legal status for undocumented persons who have put down roots, raised families, and shown themselves to be reliable and productive members of society. This narrative contrasted sharply with Justice Scalia’s, who spoke of states’ inherent sovereign authority to control their borders, described Arizona as being under siege, equated illegal entrants with enemy invaders and argued that the Framers intended for the States to regulate immigration to prevent “the intrusion of obnoxious aliens...” The various opinions thus highlight a number of important issues. When do federal measures have preemptive effect? Is the regulation of immigration distinct from other areas of law, implicating a dominant federal concern, or are states’ interests particularly important here since they are the ones -- particularly the border states -- most directly affected by federal immigration policy? What is the legal significance of the Executive’s decision to grant deferred action to qualified Dreamers? The law professors’ letter to President Obama advocating for relief for the DREAMers underscored that the DHS Secretary has broad authority to “establish such regulations,” “issue such instructions” and to “perform such other acts as [s]he deems necessary for carrying out [her] authority.” I argue that where DHS sets forth clear criteria that an individual must satisfy to qualify for relief, such a policy has the force of law and states are not free to ignore it in regulating immigrants.