Preemption

By Alan B. Morrison, Lerner Family Association Dean for Public Interest & Public Service at George Washington University Law School

The Supreme Court today by a vote of 5-3 upheld most of the rulings of the lower federal courts that Arizona’s efforts to supplement federal enforcement of federal immigration law was preempted by that law. Justice Kagan did not participate because she had worked on the case when she was Solicitor General. The ruling constituted a major victory for the Obama administration in a case that was vitally important to the Hispanic community.

Others will join the debate on whether the majority or the dissent was correct. I am writing to explore how progressives and others who support the American Constitution Society should react to this decision and how it compares to other decisions in which preemption was invoked to set aside other state laws that we might favor. My thesis is that, for most people, where you stand on preemption is where you sit on the substantive laws being preempted. A few examples will illustrate the point, after which I will try to put the issue in some perspective.

The proposition that federal law trumps state law if there is a conflict is not in dispute. The problem arises because Congress is often not clear, or does not anticipate what state laws might look like in a field where Congress has legislated. The Arizona case can fairly be described that way.  Nonetheless, the Supreme Court has also been clear that state laws that stand as obstacles to the objectives or means used in federal laws are also preempted, which was the claim made here when the United States sued over the Arizona law that avowedly sought to “discourage and deter unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Opponents of the Arizona law saw it as an effort to harass immigrants as well as other Hispanics, while proponents claimed that it was designed to take up the slack in federal enforcement. Progressives generally favored the preemption side, while conservatives (including the three dissenting Justices, who did not include the Chief Justice) supported Arizona. For States, being opposed to federal preemption is their almost universal response, although they often take a different position when the issue is whether state law preempts actions by counties or towns. The United States is a little less monolithic, but tends to favor preemption in many if not most cases.

By Philip A. Kretsedemas, an associate professor of sociology at The University of Massachusetts Boston

For the past two years, the national debate over police involvement in immigration enforcement has focused on Arizona Senate Bill 1070. When it was first enacted, SB 1070 was widely criticized for the broad discretion it allowed Arizona police to question people about their legal status. Much of this criticism focused on the problem of immigrant racial profiling. Opponents of the bill argued that it opened the door for the indiscriminate interrogation of anyone who looks like an unauthorized migrant.

Even though these complaints figured prominently in the public debate over SB 1070, it is rather telling that they have dropped out of the legal arguments that have been marshaled against the bill. One reason for this curious situation is that complaints about racial profiling and selective enforcement have historically been framed as violations of Fourth Amendment rights. But it also so happens that the legal challenge against SB 1070 is being led by the Department of Justice which, for obvious reasons, is not interested in setting legal precedents that would limit the search and seizure power of the police. The Supreme Court, which is currently deliberating over the DOJ's lawsuit against SB 1070, also has a history of favoring the discretionary powers of law enforcement over Fourth Amendment considerations.

It is important to keep this context in mind when evaluating the legal arguments that are being levied against SB 1070. The DOJ is advancing a finely pitched argument which takes issue with the law making powers of local governments but not the search and seizure practices of law enforcement. It is also bears noting that the DOJ is not opposing local immigration laws on principle. The DOJ supported Arizona's employer sanctions law (penalizing businesses that hire unauthorized migrants) which was subsequently upheld by the 9th Circuit and Supreme Court. The federal government also doesn't seem to be opposed, on principle, to the involvement of police in enforcing federal immigration laws. The Obama administration has actually given state and local police new opportunities to enforce immigration laws. It has only taken issue with local enforcement practices that operate outside of the federal-local enforcement arrangements that have already been authorized by federal law.