The Supreme Court Speaks Out On Immigration

Monday, November 12, 2012 - 09:24

The Editor interviews Bo Cooper, Managing Partner of the Government Strategies and Compliance group in the Washington, DC office of Fragomen, Del Rey, Bernsen & Loewy, LLP .

Editor: Please tell our readers about your background, especially your time as General Counsel of INS, before joining the Fragomen firm. What areas of immigration law do you presently cover as a member of the firm?

Cooper: I've spent almost all of my professional career in immigration law, the exception being my first few years after law school. I clerked for one year for the Chief Justice of the High Court of American Samoa. I was then a litigator for three years at the Justice Department defending the executive branch agencies in constitutional and other challenges to federal programs that they administered. I fell into immigration work quite by happenstance. The Chief Justice whom I had worked for in Samoa had returned to the United States to become the General Counsel of the former Immigration and Naturalization Service (INS), giving me the opportunity to work with him. I knew little about immigration law. The day I joined INS, Haiti had toppled its first elected president, and INS was faced with immigration control and refugee and international protection issues. I spent most of my first few  year doing refugee and asylum work. I remained with INS for a number of years and moved to the position of general counsel in the last four years it existed before being folded into the Department of Homeland Security in 2003. Since that time I have taught – at Georgetown, Michigan and American University law schools – and worked in private practice. Here I assist employers in shaping positive changes to the immigration laws, keeping a strong compliance profile, and navigating challenges to international movement of their personnel. So I came to immigration for quirky reasons, but it’s led me to a lot of lucky things.

Editor: Under the Constitution Congress is given a preemptive role over foreign commerce and the uniform rule of naturalization under Article I, Section 8. What governed the founding fathers' thinking as to this provision?

Cooper: The basis of their thinking was the need for the federal government, rather than the states, to speak on behalf of the United States as a nation with respect to the way the U.S. would admit immigrants from other countries and manage their legal presence, both as permanent residents and then as citizens. Those rules should be set according to a common standard, rather than as a 50-state checkerboard. One thing I think the founding fathers were trying to make clear was that the federal government should manage its relationships with other sovereign countries. It was necessary to have one focal point for control of foreign relations, immigration being a critical part. A nation must make careful choices about how it is going to treat the nationals of other countries, and the consequences that treatment may have on its relations with those countries, and on the treatment of U.S. nationals when they are abroad.

I saw this in action when I was INS's General Counsel both before and after the 9/11 attacks – a real watershed period in immigration policy. After the 9/11 attacks we often held meetings with ambassadors and other representatives of countries, especially from the Middle East, who raised concerns that some of the United States immigration policies enacted as part of the antiterrorism strategy were affecting their nationals disproportionately. In some cases these were countries that we were relying on for security partnerships. That's just an example of the kind of thing that I think the founding fathers had in mind when they were writing these constitutional provisions – to make sure it was the federal government and not the states who could make the core decisions about immigration policy.

Editor: While the federal law generally supersedes state laws in this area, the courts have permitted some leeway to the states under their police power. Please comment on a few instances where the courts have granted the states some voice in immigration matters, such as the De Canas case.

Cooper: It is certainly the case that the states are not powerless on every issue that touches immigration. In the De Canas case, the Supreme Court upheld a California law imposing civil penalties for the employment of aliens who were not entitled to reside lawfully in this country, if that employment would harm the interests of those who were lawfully entitled to be here. There was strong language in that case about the states' broad authority under their police powers to regulate the employment relationship to protect the interests of workers within the state, and this case is the crowbar that advocates for state authority use to pry open more space for state activity to regulate immigration. But it did not take Arizona so far in this case, because the California law at issue in De Canas came along at a time before the federal government had regulated extensively. So there is still room for state action, but the limits are not clear, and they are tighter than advocates of the Arizona law were hoping.

Editor: Please discuss the three sections of the Arizona law that were struck down: failure to carry immigration papers in Arizona and to comply with alien-registration requirements; also a misdemeanor for an undocumented immigrant to engage in work in Arizona; and, a provision allowing state officers to arrest anyone without a warrant if there is "probable cause to believe" the person has committed any public offense that makes him removable from the U.S.

Cooper: You are exactly right, there  were three parts of the Arizona law that the Supreme Court struck down. The first, that put in place state criminal consequences for failure to comply with the federal registration requirements, was perhaps the most readily seen by the Court as preempted by federal law. That's because there is a particular federal scheme for registration, setting the rules for how you go about registering if you're an alien, what you have to do with respect to proving that you've gone through registration, and what the consequences are if you fail to follow the federal rules. Congress made a very specific choice about how it wanted those rules to operate.

The second of those holdings had to do with criminalizing unauthorized employment as a state law matter. Arizona made it a misdemeanor under state law for an unauthorized alien to be employed or to solicit work either as an employee or an independent contractor. There again the Court looked in particular to a specific choice that was made by Congress, in the lead-up to the passage of the Immigration Reform and Control Act. There was evidence in the Congressional Record that Congress had specifically considered and then rejected the notion of simply making it a crime to be employed without authorization. Instead, Congress chose a particular scheme of obligations and civil penalties focused mainly on employers. Again, the court found that Congress had addressed the issue in a way that preempted state action.

The third provision that was stricken was the provision that would require Arizona police to arrest people who they had probable cause to believe had committed a public offense that made the person removable from the United States. Of the provisions that were struck down, this one best illustrates the risks of trying to enlist state authorities in the enforcement of the federal immigration law. This is a recognition by the Court that the federal immigration law is incredibly complicated, and it is very difficult to determine in many circumstances whether a person is in fact removable under the federal laws. With the stakes so high – arrest and custody are what we are talking about – it is extremely risky to require these kinds of decisions of officers who are not immigration experts.

Editor: The fourth provision of the law that was conditionally upheld (depending on how the law is enforced following further study) was the provision that requires officers to check the immigration status of anyone they stop, arrest or detain on some legitimate basis if the officer has "reasonable suspicions" the person is in the country illegally. What are the consequences of this holding? What showing will have to be made to determine that an officer should be enjoined from acting?

Cooper: This is the one in the spotlight. The Court found it not unreasonable to allow a state officer the authority, even the responsibility, to ascertain someone's immigration status in the circumstances of an otherwise legitimate arrest. In the Court’s eyes, doing so wouldn't intrude on any federal imperative. But Chief Justice Roberts was very clear that what the majority was doing was upholding the statute on its face, and that there would remain questions about its validity that could not be answered until the law was carried out in practice. It all comes down to how do you decide whether there's a "reasonable suspicion" that a person is an alien and is unlawfully present. That's going to be a very difficult kind of determination for a state officer to make. The big money question is whether the state can carry that out in a way that doesn't run afoul of federal law in other ways.

Editor: Do you think that once this provision goes into effect, it will lead to racial profiling as many have suggested?

Cooper: It is going to be very hard for Arizona to put in place a carefully tailored set of rules for its officers to use to decide whether they've got "reasonable suspicion" that a person is unauthorized. Critics of the law say, I think with some force, that it's impossible to carry this out without profiling.

Editor: What is the overall impact of this decision on employers?

Cooper: Arizona has been one of the most aggressive states in terms of setting its own rules for how the state's employers have to verify the employment eligibility of their employees. Those rules have been upheld, and naturally have had an important impact on employers. One thing that is interesting about how these broader state immigration laws affect employment and employers in a state is with respect to investment in that state, either by potential U.S. investors or foreign investors. States invest tons of money, time and resources into trying to attract investment. Companies that are thinking about investing in a state look at the human resources environment. If it is a difficult one, they will take their business elsewhere.

Alabama, my home state, changed a great deal because of its success in attracting foreign investment, with automotive manufacturers such as Mercedes and Hyundai and Toyota setting up plants in the state, and therefore, needing to bring employees in and out of the state to manage their enterprises. Airbus’s decision this year to open a plant there was a major economic coup for the state.

If these kinds of state laws begin to tip the balance of the HR environment, you could begin to see situations where a state’s efforts to set immigration policy bumps up against their economic goals.

Editor: How does this decision compare with the Court's decision on Chamber of Commerce v. Whiting?

Cooper: In that case the Court upheld Arizona's rules about verifying the eligibility of employees, placing the onus on the employer. The decision came down to a very specific preemption rule that Congress had written into its employment verification rules. Congress said that the federal rules preempted state rules, except with respect to licensure. This exception gave states a great deal of room to maneuver with respect to their own laws in the area.

Editor: What will be the effect of the Arizona v. U.S. decision on enforcement of similar statutes in other states, particularly those of Alabama and four other states that have such laws?

Cooper: There are a lot of states that would be quite inclined to enact laws like Arizona's, even going much farther. Certainly those other states will be studying this decision and figuring out what room it leaves them to operate at the state level. There have been legal challenges that had been on hold pending the Supreme Court's decision in this case, in particular lawsuits challenging the Alabama and Georgia laws. It will be interesting to see what lessons the courts reviewing those laws take from the Supreme Court's decision.We’ve already seen Alabama’s laws restricted significantly by the appeals court on the basis of the Arizona decision. It's too early to really predict exactly what is going to be the ripple effect in either in Arizona or other states, but that's obviously one of the key things to look at in the aftermath of this decision. The implementation of these state “show your papers” laws; profiling challenges; what other immigration measures states try; other powers, such as drivers’ license issuance, that states may turn to when they disagree with federal immigration decisions – these controversies are not over by a long shot. They’ll go on until Congress can bring itself to take serious action to design a smarter immigration policy at a national level, where it belongs.

Editor: Do you expect to see more immigration legislation proposed in the remaining days of this Congress?

Cooper: Don't bet on it.

Please email the interviewee at with questions about this interview.