Today in the Community we consider whether the Justices should (or will) grant cert. in Arizona v. United States when they consider it at their Conference next week.  The brief for the United States opposed review, telling the Court that the recent adoption by other states of  “new laws in this important area is not a sufficient reason for this court to grant review.”  As Peter Spiro noted last summer in his post for this blog,  the Court’s decision last Term in Chamber of Commerce v. Whiting  was the first time in thirty years that the Court has addressed the relationship between federalism and immigration enforcement.  Today we want to hear your views:  should the Court wait and see how the lower courts interpret its decision in Whiting as laws similar to S.B. 1070 percolate through the system? Or should the Court grant review in Arizona v. United States now?  We hope that you will tell us what you think.

Yesterday’s comments addressing the merits of the case follow the jump.

Bill Olson – 1 Promoted Comment

The United States government’s position in Arizona v. United States, is based upon the erroneous premise that the States have no legitimate role in the enforcement of immigration and naturalization laws, except for the ones expressly assigned to them by Congress. Therefore, the United States government wrongfully assumes, without any regard for the sovereign concerns of the States, that it can pursue an immigration policy that takes into account only federal “law enforcement priorities, foreign-relations considerations, and humanitarian concerns.”

As we argue in our brief on behalf of the U.S. Border Control, and others, the United States Government is obliged by the United States Constitution’s federal structure to shape its immigration and naturalization policy in such a way as to preserve the separate and independent existence of the States. More particularly, the United States Government is obliged by the Fourteenth Amendment’s dual citizenship provision to recognize and honor the legitimate interest of the States to preserve their integrity as sovereign political and economic communities. Finally, the United States Government has the constitutional duty to defend the States from illegal immigrant invasion and, in the event that the United States fails in performing that duty, a State may take action in self-defense, as Arizona has done, adopting its policy of “attrition by enforcement.”


Carol Swain – 1 Promoted Comment

The balance of power between the states and the federal government in regulating immigration should not be resolved purely by looking at the INA. Instead, the Court should seize the opportunity to reinvigorate federalism by examining the textual and structural constitutional issues that govern the balance of power between levels of government. Though immigration has traditionally been viewed as an area of structural preemption, there is no textual basis for such an interpretation. Laws governing immigrants once they have entered the country should be within the realm of state authority, comparable to health and police regulation. If authority over immigration is viewed under statutory preemption, states could share regulatory authority with the federal government, as long as the national government maintained its ability to preempt through federal statute. This would enable the national government to maintain a consistent immigration policy for governing exit and entry into the country, while allowing state governments the latitude to engage in policy innovation. Mutually beneficial partnerships between levels of government could result in improvements of the quality of life for citizens and alien residents. Conflicts of interests between federal and state laws can be resolved easily by allowing federal laws to trump the state laws.


Rick Su – 1 Promoted Comment

The Roberts Court has shown a distinct preference for deciding controversial cases on the narrowest grounds. Even so, given all the questions raised by the enactment of S.B. 1070 in Arizona, I doubt that the Supreme Court would limit its analysis entirely to the text of the INA without touching upon broader structural considerations such as the balance of power in our federal system. Given that federal preemption is the central claim against S.B. 1070, the default framework here is the familiar struggle between federal power and state rights. Yet this is not the only way in which the conflict over S.B. 1070 can be understood as a structural matter. Indeed, various efforts seem underway precisely to shift the institutional posture of the case towards other possible configurations.

On the one hand, even while Arizona and its supporters rally around state rights, there seems to be efforts to downplay the federal-state dichotomy. Indeed, as if acknowledging the strength of the federal plenary power over immigration and the dramatic expansion of its scope in recent decades, supporters of S.B. 1070 appear just as eager to portray the conflict over S.B. 1070 as a federal-federal dispute between different branches of the federal government, and different approaches to immigration enforcement by successive presidential administrations. It isn’t simply Arizona’s claim that S.B. 1070 is a response to federal inaction. Or its legal argument that several provisions of the INA, along with various federal initiatives, seem to anticipate if not outright encourage state enforcement efforts like S.B. 1070. As the amicus brief filed by 81 members of Congress in support of Arizona suggested most explicitly, the legal issue over S.B. 1070 can also be understood as a proxy battle between Congress and the President over the design and implementation of our nation’s immigration policy. And not just any President—by suggesting that past administrations had adopted different stances on this issue, the brief seems particularly interested in highlighting the partisan disagreement over the INA’s interpretation over time.

On the other hand, while critics of S.B. 1070 have predictably stressed the uniquely federal nature of immigration as a policy issue, they have also sought to undermine the allure of state rights from within. Indeed, opponents of S.B. 1070 have not been shy about highlighting the internal conflicts over the law inside of Arizona itself. In its initial complaint, the Department of Justice took great care to supplement the filing with affidavits from several local officials in Arizona that were critical of S.B. 1070. Since then, lawsuits and amicus briefs filed on behalf of several of Arizona’s largest cities in support of the federal government against Arizona have furthered emphasized that S.B. 1070 does not reflect a monolithic local sentiment, and that striking it down will free them from the law’s unfunded mandates. The appeal of this reframing is not necessarily as a legal challenge against state sovereignty; rather it seeks to undermine the moral standing of Arizona as a victim of federal intervention into local affairs. To be sure, the design of S.B. 1070 seems to have contributed much this unique federal-local alliance against the state; while Arizona takes credit for taking a strong stance on enforcement, S.B. 1070 pushes nearly all of the front-end screening costs down to local governments, and the back-end detention and removal costs up to the federal government.

Giving that the Supreme Court has yet agreed to hear the case against S.B. 1070, it may be too early to predict how the individual Justices will react to these competing efforts to move the conflict beyond the familiar federal power versus state rights framework. Ironically, given that they pull in opposite directions, the net effect may be in fact to steer the analysis towards a straight textual analysis of the INA after all. In any case, regardless of how (or if) the Court rule on S.B. 1070, these framing arguments will likely continue to have powerful influences in the court of public opinion. With the successful recall of S.B. 1070’s sponsor in the state legislature and waning support for the law in Arizona, there is a good chance it will be legislatively repealed or administratively deprioritized even if the injunction is eventually lifted. At the same time, sensational state efforts to regulate immigration in the past nearly all leave their most lasting marks, if any, on the political negotiations over future federal legislation. As such, irrespective of what happens to S.B. 1070 in court, its legacy will ultimately be decided not in the Supreme Court, but rather the next round of immigration reforms.


David LeRoy 4

I do not understand why a state enforcing, in essence, a requirement of immigrants to carry and produce identification is such a controversial issue. They are the ones at the forefront in the battle against illegal immigrants. The majority of federal enforcement is at the border and in workplace raids. Are they too “bad public policy?” Is “good public policy” open borders and a wink and nod at those already here? Until CONGRESS, not the Court, takes up serious comprehensive immigration reform that stresses (1) visa reform based on economic need, (2) serious enforcement with penalties that hurt, (3) employment verification, and (4) yes, some form of limited amnesty for those already here long term, this will continue to be a problem and you will have laws like SB 1070 and its progeny. At least Arizona has the chutzpah to dare enforce a law that has been in existence since the 1950s.

Posted in Community

Recommended Citation: Kali Borkoski, Today in the Community: December 2, 2011, SCOTUSblog (Dec. 2, 2011, 9:30 AM),