Response to Arizona v. United States symposium contributors
on Jul 18, 2011 at 12:16 pm
SCOTUSblog deserves considerable thanks for putting together this symposium about United States v. Arizona, which the Supreme Court may agree to hear this coming Term. The week-long series of essays has covered the entire legal landscape by providing a wide range of approaches and viewpoints. As someone generally supportive of immigration but generally skeptical of claims that states have no role to play in immigration enforcement, I’d like to respond quickly to some of the other participants’ predictions regarding how the Court is likely to deal with this case.
There is much to be said for Peter Spiro’s suggestion that the Court may be reluctant to hear this case at all, so quickly on the heels of its immigration preemption decision last term in Chamber of Commerce v. Whiting. With other states’ recent adoption of laws mimicking Arizona’s S.B. 1070, and with the ACLU threatening challenges to a number of those laws, the Court may want to wait for the issues to “percolate†in the lower courts before taking them up again. It would not be entirely surprising if the Court GVRed the case [granted certiorari, vacated the decision below, and remanded the case to the lower court] to give the Ninth Circuit an opportunity to reconsider its decision in light of Whiting.
As I opined earlier, the one provision of S.B. 1070 that the Supreme Court will almost surely find not to be preempted is Section 5(C), which makes it a crime for illegal aliens to seek or perform employment within Arizona. Several commentators disagreed, opining that that provision is one of the most vulnerable to challenge. They based their conclusion on the fact that “even†Judge Bea, a conservative who dissented in part from the Ninth Circuit panel decision, voted to affirm the preliminary injunction against Section 5(C).
But all three Ninth Circuit judges stated that a 1990 Ninth Circuit decision required them to rule against Section 5(C).  The 1990 decision concluded that Congress, when it adopted the Immigration Reform and Control Act of 1986 (IRCA), had intended a “balanced†approach that permitted sanctions against employers but not employees. The Supreme Court, of course, will not be bound by the 1990 Ninth Circuit decision. Moreover, in ruling against implied conflict preemption claims in Whiting, the High Court explicitly rejected arguments that permitting states to impose additional sanctions for the employment of illegal aliens, beyond those provided for in  IRCA, would upset a “balance†established by Congress. In light of the Court’s interpretation of IRCA in Whiting, it is highly unlikely that the Court would find Section 5(C) impliedly preempted by that same statute.
I found it somewhat surprising that no one saw fit to comment on the disconnect between the Justice Department’s preemption arguments in this case and the arguments it routinely makes in cases where the issue is whether state tort law is preempted by a federal regulatory program. For example, the Solicitor General argued last Term in Williamson v. Mazda Motor that a tort claim that a car maker was negligent in failing to install lap-and-shoulder belts in the rear seat of a minivan was not impliedly preempted by federal automobile regulations, even though federal officials had looked at that precise issue and determined that installation of lap-and-shoulder belts was not warranted because it would not be cost effective.  It is extremely difficult to reconcile DOJ’s position in Williamson with its position in United States v. Arizona that Section 5(C) should be deemed impliedly preempted because it authorizes enforcement sanctions that Congress did not explicitly authorize. The Court pointedly observed in Whiting that one of the legal arguments made by DOJ in that case was inconsistent with a prior DOJ argument in another immigration case. It is fair to question whether DOJ risks a partial loss of credibility with the Supreme Court if it continues to take seemingly inconsistent positions on preemption issues.
Finally, Hope Lewis’s well-researched and informative piece on international human rights law drove home to me the immense gulf separating liberals and conservatives regarding the relevance of international human rights law to issues that come before the Court. I suspect that most conservatives would deem Supreme Court Justices derelict in their duties were they to give any consideration to the issues raised by Hope in deciding whether S.B. 1070 is preempted by federal law, at least in the absence of evidence that Congress had explicitly adopted (and determined to make enforceable in federal courts) the international law norms cited by Hope. Liberals, on the other hand, generally argue that Justices who fail to take account of international law norms are short-sighted and risk creating unnecessary friction with other nations. That basic disconnect among liberal and conservative Justices has been visible in every recent Term of the court, most recently in connection with the Court’s recent refusal to stay the execution of convicted murderer (and Mexican citizen) Humberto Leal Garcia.
