Preemption, textualism, and agency failure

Last week’s online symposium reflected various perspectives on how the Supreme Court is likely to rule on Arizona’s S.B. 1070 in light of its recent decision in Chamber of Commerce v. Whiting and the proliferation of and challenges to state copycat laws. Despite the contributors’ different opinions, virtually all the essays recognized that, in large part, these laws have been enacted because of a perceived failure of the federal government to come up with a consistent and coherent immigration policy.  Kevin Johnson, in the lead essay, writes that “Congress has been unable to agree on a comprehensive immigration reform package”.  Peter Spiro, in predicting that the Court will deny certiorari, writes that “[m]embers of the Court can hardly be ignorant of the persistent failure of the federal government to enact comprehensive immigration reform, and there must also be an understanding of state frustration with the abdication of federal authority.” Carol Swain, arguing for the constitutionality of S.B. 1070, states that “[i]nstitutional failure is driving the entrance of state and local governments into an area normally dominated by the federal government.” Rogers Smith, while concluding that the Court should find federal preemption, recognizes that “it is also a reality that the U.S. government does not actually have a coherent, comprehensive – much less ‘carefully calibrated’ – overall immigration policy.” Carissa Hessick frames the debate with a discussion of mirror image theory, a theory of state authority based on cooperative federalism advanced by Kris Kobach.  Margaret Stock argues that states cannot be “assisting” the United States in enforcing immigration law if the United States does not seek that assistance.  Each piece, as well as my own, recognizes that, legitimate or not, Arizona’s S.B. 1070, LAWA, and copycat legislation have all been justified by the federal government’s failure to come up with a workable immigration policy.

Where the contributors disagree is whether this is a legitimate basis for upholding state laws regulating immigrants and immigration.  In Whiting, the Court indicated that the states have a role in regulating immigrants, particularly where Congress has preserved that authority through a savings clause.  Yet the Court also reaffirmed language in De Canas v. Bica (1976) that distinguishes the regulation of immigration from the regulation of immigrants.  If the Court grants certiorari, much will depend on how it defines the regulation of immigration.  If it defines it broadly, as Margaret Stock suggests it will, it will likely find, like the Ninth Circuit did, that most provisions of S.B. 1070 are preempted.  If it defines it narrowly, to only involve the actual regulation of admission and removal, then most provisions of S.B. 1070 will likely be upheld.

In predicting how the Court will rule, its decision in Whiting should be read together with recent preemption decisions.  As Gillian Metzger points out in a recent piece in the Columbia Law Review, several of the Court’s latest preemption decisions indicate a readiness, notwithstanding the Supremacy Clause, to uphold state laws designed to address federal agency failure.  Yet, as Roderick Hills suggests in his essay, the Court in Whiting was not intellectually honest in reaching this result, relying instead on textualism and its parsing of the ‘plain language’ of the savings clause in IRCA to achieve the desired results. As I discuss, once it found that there was no express preemption, it was unwilling to engage in a “free-wheeling inquiry” into whether the Legal Arizona Workers Act was impliedly preempted.  It ignored language in Geier v. American Honda that a “savings clause (like the express preemption provision) does not bar the ordinary working of conflict preemption principles.”

The Court appears to be distancing itself from obstacle preemption as a standard tool of preemption analysis.   Under obstacle preemption analysis, which the Third Circuit embraced in Lozano v. Hazleton and the Ninth Circuit in Arizona v. United States, a state or local law is preempted if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  As Carissa Hessick points out, Justice Thomas did not join in that portion of Whiting discussing implied preemption.  This might suggest, at first glance, that this portion of Whiting was a four-four ruling with no precedential effect, leaving open the door to future implied preemption challenges.  Indeed, in PLIVA Inc. v. Mensing, another decision this Term, Justice Thomas found that a state tort law claim was impliedly preempted by federal food and drug law because compliance with both was a physical impossibility. Yet in 2009, in his concurrence in Wyeth v. Levine, Justice Thomas argued that “purposes and objectives” preemption jurisprudence was inconsistent with the Constitution because it involved the Court in “routinely invalidat[ing] state laws based on perceived conflicts with broad federal policy objectives … not embodied within the text of federal law.”  As Caleb Nelson points out in his 2000 piece in the Virginia Law Review, both conservative advocates of federalism and liberal advocates of government regulation have argued that obstacle preemption needs to be narrowed, so that states remain free to supplement federal law with regulations of their own.

These developments raise troubling questions regarding how the Court will rule, if it rules, on S.B. 1070.  If it moves away, as it appears to be doing, from obstacle preemption analysis and towards allowing states to regulate in situations involving federal agency failure, it may, as Larry Joseph suggests, uphold key provisions of S.B. 1070, particularly those that do not directly conflict with federal law.  In this context, opponents of S.B. 1070 and other copycat laws need to keep the various preemption arrows in their quiver, and be prepared to argue for the continuing vitality of express, field, and conflict preemption principles.  The alternative is a much-needed Congressional fix.  As Ilya Shapiro points out, the silver lining to this litigation could be that it may finally trigger a Congressional response.