Double Trouble: Double Jeopardy's Dual Sovereignty Exception and State Immigration Statutes

Abstract:     
Arizona, along with other states, has begun enacting laws attempting to control the movement of undocumented non-citizens within and across its borders. This extraordinary new wave of legislation creates a serious vertical separation of powers problem, risking frustration of federal immigration policy. Although there are a number of reasons that the state action may be unconstitutional, this article focuses on the heretofore unexplored role of the Double Jeopardy Clause.

The dual sovereignty exception to the Double Jeopardy Clause of the United States Constitution allows for successive prosecutions for the same offense, so long as each prosecuting jurisdiction bases the prosecution on its own authority. Two jurisdictions may not prosecute the same offense if each is drawing from the same source of power. States do not have their own authority to enact laws that regulate immigration. Defenders of state regulation do not deny federal primacy in the immigration area, but propose that states have been implicitly invited to assist in carrying out federal policy by enacting state laws.

This article suggests that courts should be slow to conclude that the federal government has invited the states to enact legislation. If states have the authority to prosecute immigration cases, that means that the federal government is divested of its power to act in any case where the state prosecutes first. A court, therefore, should uphold state immigration prosecutions only if it is convinced not only that the law is not preempted or unconstitutional for some other reason, but also that the United States intentionally decided to give the states authority to override federal decision making in the immigration arena.

Number of Pages in PDF File: 20

Keywords: immigration, double jeopardy, federalism, preemption, SB1070

JEL Classification: K14, K23, K42

Accepted Paper Series