What's at Stake in Tomorrow's Supreme Court Immigration Showdown?


As J.D. Tuccille and Jacob Sullum each noted yesterday, the Supreme Court will hear oral arguments tomorrow in Arizona v. United States. At issue are four provisions from the state's controversial immigration control law S.B. 1070, including Section 2(B), which requires state law enforcement officials to make a "reasonable attempt" to determine the immigration status of any person they encounter during "any lawful stop, detention, or arrest" if those officials have a "reasonable suspicion" that the person may be in the country illegally.

Although most of the attention directed at S.B. 1070 has focused on the likelihood that it will encourage racial profiling and other police abuses, tomorrow's case centers on a different question. The legal issue before the Supreme Court is something known as preemption, which means that if a state law is found to conflict with a legitimate federal law, the state law must fall.

According to the Obama administration, which will be represented in Court tomorrow by Solicitor General Donald Verrilli, "S.B. 1070 would supplant federal policy with a new and contrary state policy." Arizona, which will be represented by former solicitor general Paul Clement, argues that that there is no conflict between the state and federal approaches in this case, and in fact, "S.B. 1070 does not impose its own substantive immigration standards, but simply uses state resources to enforce federal rules."

Over the past few years, the Supreme Court has handed down several major preemption rulings. Unfortunately for the Obama administration, none of them bode very well for the federal government in this case.

The most significant is last year's Chamber of Commerce v. Whiting (2011), where the Court voted 5-4 to uphold the Legal Arizona Workers Act, which requires all Arizona employers to verify their workers' immigration status via E-Verify, and imposes draconian penalties, including the loss of business licenses, on firms that hire unauthorized immigrants. The Court, divided along conservative-liberal lines, ruled that the Arizona regulation was not preempted by federal law.

The Court's 2009 ruling in Wyeth v. Levine may also prove relevant. In that case, the Court ruled by a 6-3 majority that federal law did not preempt a state failure-to-warn lawsuit against a pharmaceutical company even though the drug warning label in question had been approved by the Federal Drug Administration. As Justice John Paul Stevens wrote for the majority, "in all preemption cases, and particularly in those in which Congress has legislated in a field which the states have traditionally occupied, we start with the assumption that the historic police powers of the states were not to be superseded by the federal act unless that was clear by the manifest purpose of Congress."

Justice Anthony Kennedy sided with the liberal majority in that ruling, as did Justice Clarence Thomas, who earned some rare praise from progressives in the process. Two years later the Court unanimously rejected a similar federal preemption argument in Williamson v. Mazda Motor of America (2011), ruling that the federal Motor Vehicle Safety Act did not trump a more restrictive California requirement that rear car seats have both lap and shoulder seat belts (federal law required only lap belts in rear seats).

Those cases all dealt with economic regulations, of course, not immigration controls. But if Arizona succeeds in framing its case as one where the state is simply exercising its historic police powers to protect the health, welfare, and safety of citizens by enforcing federal law (not supplanting or undermining federal sovereignty), the distinction won't matter and the provisions from S.B. 1070 will likely survive.

NEXT: For Fourth Year in a Row, Obama Breaks Campaign Promise to Call the Century-Old Armenian Genocide a "Genocide"

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  1. I think the question on everyone's mind is whether SCOTUS will decide to send Sheriff Joe on an involuntary NASA mission to the sun.

  2. Gotta love those Supreme Kangaroo Court judges lol.


  3. To win this case, I think the Obamanauts have to convince the Court that the grant of authority to the feds to regulate naturalization necessarily implies a grant of exclusive authority to regulate immigration, as well.

    Preemption of state law happens when either (1) The feds have exclusive authority or (2) The state law conflicts with federal law. My recollection is that the AZ immigration law is consistent with federal law, so I don't think the feds are going to win on that.

  4. But if Arizona succeeds in framing its case as one where the state is simply exercising its historic police powers . . . .

    Except that Henderson v. Mayor of N.Y., 92 U.S. 259, 270-73 (1876) held that direct regulation of immigrants (as contrasted with regulation of employers in a manner that has a collateral impact on immigrants) is not part of the traditional state police powers but part of the commerce clause.

    In fact, Alito specifically relied on Henderson just last month as part of the basis for his concurrence in Zivotofsky v. Clinton, 132 S. Ct. 1421 (Mar. 26, 2012), in which he stated "The Constitution gives Congress the power to regulate foreign commerce, and this power includes the power to regulate the entry of persons into this country . . . ." (Emphasis added.)

    1. But Arizona's obnoxious law isn't regulating the entry of persons into this country. It's exercising police powers over people already in the state.

      I think the only hope Obama has here on supremacy grounds is in the federal government's singular power over foreign affairs. It's a hypothetical, but having Arizona mistreat or otherwise harass guests from another nation could look bad for the US in its international relations.

      1. But Arizona's obnoxious law isn't regulating the entry of persons into this country. It's exercising police powers over people already in the state.

        Except (a) there's nothing in Henderson that suggests the analysis depends on whether the state is trying to stop immigrants literally at the border or five feet inside the border, and (b) the Arizona law doesn't limit itself to immigrants who have decided to reside in Arizona. (It applies even to immigrants who have no intention of stopping in Arizona and are merely traveling through the state.)

    2. The commerce clause. Is there nothing that it doesn't regulate?

      Interesting that they aren't trying to stretch the naturalization power to cover this.

      1. Who needs the Commerce Clause?

        As the 1889 Chae Chan Ping decision shows, they can just make it up:

        The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest.

  5. I'm still wondering why the Constitution's grant of authority over "naturalization" extends to "immigration." These are distinct and the Constitution only references the former. There is no power granted to Congress to block migration.

    1. You are correct: there is no such constitutional authority. The power was constructed out of whole cloth by the Supreme Court in the 1870's in order to support the first immigration laws that were being passed at the time.

      1. It's called INS for "immigration AND naturalization service" -- the federal government thus explicitly recognizing that they are two separate things.

        And Article I, Section 8 only grants the feds jurisdiction over naturalization.

        1. Actually, I don't think its called INS anymore. I think its Citizenship and Immigration Services.

  6. I always stop reading anything when I hit the word "draconian".

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