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It’s all over but the cert.-granting

So many pixels have been spilled on this already that it would be a shame if Peter Spiro is right that the Court will duck Arizona v. United States.  I don’t think it will because – with the proliferation of state action touching on immigration and the federal government’s abdication of its responsibilities in this area – the Court will want to nip these issues in the bud one way or another.  So assuming the case hits the OT11 docket, here are some (not necessarily connected) further thoughts:

  1. So much of the government’s argument, which the Ninth Circuit majority largely accepted, comes down to what I previously termed “preemption by executive whim.”  That is, under standard preemption doctrine, federal law preempts state law via the Supremacy Clause if the state law either contradicts the federal law (“direct” or “conflict” preemption) or if it intrudes in a legal space properly left to the federal government and that the federal law has occupied (“implied” or “field” preemption).  What the government seems to be arguing here, and what several of the symposium contributors seem sympathetic to, is something different: That the federal executive branch’s choices regarding enforcement priorities, resource allocation, and the like, preempt any state law that “burdens” those discretionary policies and practices (by, for example, forcing the federal government to deal with requests for immigration-status verification).  To explain the argument is to refute it: the Supremacy Clause says that federal law trumps any conflicting state law, but it does not say that the president or his agents can unilaterally trump state law.  If it were otherwise, then a state law that is not preempted will suddenly be preempted when there’s a change of presidential administration – or simply when the president or relevant official changes his mind.  That’s not the way law works.
  2. Another way law doesn’t work is by taking into account all the fascinating issues Hope Lewis raises.  The legal debate over S.B. 1070 is a highly technical matter of statutory interpretation, not a grand discourse on the nature of human rights, America’s treaty obligations under various U.N. Conventions, and how a ruling one way or another might affect U.S. foreign policy – or even on racial profiling.  Law is law and policy is policy.  I agree with Prof. Lewis that S.B. 1070 is bad policy for a number of reasons (not necessarily the ones she raises), but that’s a wholly separate question from whether it’s constitutional.
  3. Carissa Hessick is spot-on in identifying “mirror image theory” as the place where the rubber of academic debate meets the road of jurisprudence.  Even beyond the basic question of whether the Court strikes down or upholds particular provisions of S.B. 1070, I too will be looking to see how it articulates these holdings with respect to state laws written in a way that takes great pains to parallel federal law.
  4. I find overly cynical Rick Hills’s legal-realism approach to the questions presented here.  Call me a “legal romantic,” but neither the majority nor dissenting opinions – regardless of how the Justices are aligned – are likely to use the text of the relevant federal law as a pretense for anything other than deciding whether S.B. 1070 is preempted.  Instead, we’ll see the usual disagreement about purposive versus textual interpretive methods, divergence on the definition and scope of the field of law that Congress can and did preempt here, discussion of the aforementioned “mirror image theory,” and, generally, dueling explanations of what states can and cannot do in areas of law relating to immigration.  Commentators will always try to psychoanalyze “what’s really going on” but I’ll stick to the text of the actual opinion that comes out.

In conclusion, I’d like to thank my fellow contributors for their thought-provoking essays and SCOTUSblog for hosting such a lively symposium on what will undoubtedly be one of the biggest cases of the next Supreme Court Term.

Recommended Citation: Ilya Shapiro, It’s all over but the cert.-granting, SCOTUSblog (Jul. 25, 2011, 3:40 PM),