As Jerry Tuccille noted earlier this afternoon, the Supreme Court is scheduled to hear arguments for and against Arizona's immigration law, a.k.a. S.B. 1070, on Wednesday. In a New York Times op-ed piece, Temple University law professor Peter Spiro argues that the S.B. 1070's opponents should hope the Court upholds it, because "laws like Arizona's are such bad policy that, left to their own devices, they will die a natural death—and their supporters will suffer the political consequences." Spiro predicts that Arizona-style laws, which aim to make life so difficult for illegal immigrants that they decide to "self-deport," will be killed by opposition from farmers and other employers, loss of convention business, and reductions in foreign investment. But if the Supreme Court overturns S.B. 1070, he says, there is apt to be a backlash that results in illiberal immigration legislation at the national level.
Although Spiro's tactical argument sounds plausible, he does not directly address the issue that the Supreme Court is supposed to be considering: Is S.B. 1070 constitutional? "One of federalism's core virtues is the possibility of competition among states," Spiro writes, adding that "competition in this context is likely to vindicate pro-immigrant policies." But portraying S.B. 1070 as the sort of policy experiment that is protected by the 10th Amendment assumes that it does not impermissibly impinge on a power "delegated to the United States by the Constitution." The Obama administration, of course, argues that it does. "Arizona has adopted its own immigration policy," says the administration's brief, "which focuses solely on maximum enforcement and pays no heed to the multifaceted judgments that the INA [Immigration and Nationality Act] provides for the Executive Branch to make." If Arizona starts routinely detaining suspected illegal immigrants, for instance, that pressures the federal government to use its law enforcement resources in a particular way, which would make it more difficult to focus on deporting criminals, as opposed to peaceful, gainfully employed people who have not broken any laws except the ones barring them from living and working in the United States.
Given that border control is a federal responsibility, letting states go their own way on immigration seems much more constitutionally problematic to me than, say, letting states decide for themselves whether to let patients use marijuana as a medicine. Yet somehow Arizona Gov. Jan Brewer came to the opposite conclusion (while Barack Obama opposes federalism in both contexts). Are we both simply reading our policy preferences into the Constitution?