Another take on AZ SB1070

Adam J White at the Weekly Standard writes:

...the Obama administration's complaint against Arizona faces serious obstacles in the federal courts.

The administration needs to show that S.B. 1070, Arizona's law authorizing state officials to enforce federal immigration law, is "preempted" – that it runs afoul of the Constitution's Supremacy Clause, which confirms that federal law supersedes state law.  To that end, the complaint's opening paragraphs stake an uncontroversial claim: "[i]n our constitutional system, the federal government has preeminent authority to regulate immigration matters."

Certainly no one would dispute that the federal government is the "preeminent" architect of the nation's immigration policy.  But it is quite another thing to say that federal law, through the Constitution's Supremacy Clause, preempts S.B. 1070.  In U.S. v. Arizona, the administration will have to prove the latter point – and that will be no small task.

The administration's primary obstacle is De Canas v. Bica(1976), in which the Supreme Court emphatically declared that federal immigration laws did not prohibit the states from enforcing the policies embodied by those federal immigration laws. (In that case, the state law was a California prohibition against the employment of illegal aliens.)  The Court reviewed the text and history of the federal Immigration and Nationality Act, and found no indication that "Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular." According to the Court, states may enforce laws consistent with federal immigration laws, so long as the state does not "impose additional burdens not contemplated by Congress."

In fact, the Obama administration goes so far as to assert that S.B. 1070 prevents it from getting tough on truly nasty illegal immigrants: "S.B. 1070 disrupts federal enforcement priorities and resources that focus on aliens who pose a threat to national security or public safety ... undermin[ing] the federal government's careful balance of immigration enforcement policies and objectives."

But that line of argument wholly misses the point.  When courts decide whether federal law preempts state law, the question is not whether the state law conflicts with the president's selective enforcement of federal statutes.  The question is whether the state law "stands as an obstacle to the accomplishment ... of the full purposes and objectives of Congress," as embodied by the federal statutes.  S.B. 1070 satisfies that test – it does nothing more than allow state officials to enforce Congress's purposes and objectives as expressed in current federal statutes.

As it happens, the Supreme Court may weigh in on these types of questions long before the lower federal courts resolve the Obama administration's case.  In the upcoming term, the Court will hear Chamber of Commerce v. Candelaria, which presents a similar constitutional challenge to another Arizona immigration-related statute – one that was signed into law, ironically enough, by then-Governor Janet Napolitano.  In that case, the traditionally liberal Ninth Circuit ruled in Arizona's favor, holding that federal law does not preempt Arizona's law punishing employers that hire illegal aliens.