In a long due decision, a divided Colorado Supreme Court held the state’s human smuggling crime unconstitutional. The court’s decision in Fuentes-Espinoza v. People, No. 13SC128 (Colo. October 10, 2017), returns public attention to 2006 when the state legislature enacted a host of anti-migrant legislation.
In Fuentes-Espinoza, the court concluded that the state legislator overstepped its authority that year when it criminalized conduct already regulated by federal immigration law. The U.S. Constitution’s Supremacy Clause commands that state law must give way anytime it affects the same activity as federal law. Known as preemption, this legal doctrine has been at the center of much high-profile litigation in recent years, including the Supreme Court’s decision in Arizona v. United States, 567 U.S. 387 (2012), striking down most of that state’s Senate Bill 1070, the infamous show-me-your-papers law. Arizona takes an important role in the Colorado court’s analysis because it’s the Supreme Court’s most recent major foray into preemption arising from immigration legislation.
Writing for a majority of the Colorado court, Justice Gabriel announced that Colorado’s human smuggling crime, Colo. Rev. Statutes § 18-13-128, is preempted twice over. Once under the doctrine of field preemption and again under the doctrine of obstacle preemption.
[For a more detailed analysis of Colorado’s human smuggling offense, see my 2015 essay.]
Under field preemption, a state law is unenforceable if it treads on an area in which Congress has enacted a “framework of regulation so pervasive…that Congress left no room for the States to supplement it or where there is a federal interest…so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Fuentes-Espinoza, slip op. at 16 (quoting Arizona, 567 U.S. at 399).
Colorado’s anti-smuggling crime does both. First, the court had no difficulty doubting the federal government’s strong interest in regulating the lives of migrants. Second, after surveying the expansive list of Immigration and Nationality Act sections targeting human smuggling, the court concluded that “when read together, these provisions evince Congress’s intent to maintain a uniform, federally regulated framework for criminalizing and regulating the transportation, concealment, and inducement of unlawfully present aliens.” Id. at 18.
Under conflict preemption, a state law is constitutionally infirm if “stands as an obstacle to the accomplishment and execution of Congress’s purposes and objectives in enacting a federal statute.” Id. (citing Arizona, 567 U.S. at 399). The Colorado court identified numerous examples of divergence between federal immigration law and the state statute. For example, Colorado imposed a different punishment structure on the same activity targeted by federal law. It the Colorado law “sweeps more broadly than its federal counterpart” by permitting punishment “even absent a finding that the alien whom he or she was assisting was actually violating immigration laws.” Id. at 21. As a result, the state statute “undermine[s] Congress’s careful calibration of punishments” and “disrupts Congress’s objective of creating a uniform scheme of punishment.” Id. at 20-21.
Justice Eid, whose nomination by President Trump to the U.S. Court of Appeals for the Tenth Circuit is pending before the Senate, led a three-justice dissent. She argued that the state law is not preempted because it is intended “to protect, not punish, the passengers of human smuggling operations regardless of their immigration status.”
Clearly, the Colorado decision is an important victory for migrants’. Hidden within the decision, however, is an important warning to migrants’ rights advocates. Mr. Fuentes-Espinoza, the court explains, was charged with violating the smuggling offense because the arresting police officer “called the human smuggling hotline, and the hotline sent representatives to the station to assist.” Id. at 5. Mr. Fuentes-Espinoza’s plight resulted from a humanitarian initiative turned into a prosecutorial tool. This certainly isn’t the first time. Criminal laws that target human smuggling often do this, and many people have lodged strong criticisms against this practice. This is a reminder to advocates about the importance of thinking critically about the role of criminal law in protecting migrants.