By Daniel M. Kowalski, Attorney, The Fowler Law Firm PC
Pundits, bloggers and talking heads are spending far too much time obsessing over irrelevant aspects of USA v. Arizona, the federal government's lawsuit against SB 1070, Arizona's immigration control bill, set to take effect in late July 2010, unless enjoined by a federal court. These sideline aspects include racial profiling, the political effect of the suit on the upcoming midterm elections, and polling. What's missing from the discussion is the only thing that matters: What will the Supreme Court say?
The case is filed in the U.S. District Court for the District of Arizona. After briefing and arguments, a decision will be rendered. No matter who wins and who loses, the case will be appealed to the U.S. Court of Appeals for the Ninth Circuit. The same drill will take place: briefing, argument, decision, and appeal, by way of petition for writ of certiorari to the U.S. Supreme Court. Once there, the Court will focus exclusively on one issue - federal preemption - and on the Court's precedents on that issue, in particular Hines v. Davidowitz, 312 U.S. 52 (1941) and De Canas v. Bica, 424 U.S. 351 (1976).
There is a substantial body of scholarly work on the topic. A Lexis search of all law review journals for just the past two years using the terms "preemption + "de canas" + immigration + arizona" yields over thirty articles. Bender's Immigration Bulletin alone has published at least six articles on point, including:
- Michael A. Olivas, Immigration-Related State Statutes and Local Ordinances: Preemption, Prejudice, and the Proper Role for Enforcement, 12 Bender's Immigr. Bull. 901 (July 15, 2007);
- Stephen Yale-Loehr & Ted Chiappari, Immigration: Cities and States Rush in Where Congress Fears to Tread, 12 Bender's Immigr. Bull. 341 (Mar. 15, 2007);
- Ted J. Chiappari & Stephen Yale-Loehr, Can Cities and States Legally Regulate Immigration?, 12 Bender's Immigr. Bull. 1195 (Sept. 1, 2007);
- Melanie MacCurdy, The Controversy Over Undocumented Non-Citizens: Can States and Localities "Regulate" Immigration?, 12 Bender's Immigr. Bull. 1621 (Nov. 15, 2007);
- Ben Stanley, Preemption Issues Arising from State and Local Laws Mandating Use of the Federal E-Verify Program, 13 Bender's Immigr. Bull. 433 (Apr. 15, 2008); and
- Gary Endelman & Cynthia Lange, The "Perils of Preemption": Immigration and the Federalist Paradox, 13 Bender's Immigr. Bull. 1217 (Oct. 1, 2008).
The federal government begins its argument by outlining "Relevant Principles of Preemption" at pp. 11-12 of its Memorandum in support of its Motion for Preliminary Injunction, online at: http:// www.justice.gov/opa/documents/pi-brief.pdf. Quoting Mathews v. Diaz, 426 U.S. 67, 84 (1976), the government states, "[I]t is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens."
Endelman and Lange, supra, have no specific answers, but they pose the key questions: "[Perhaps it is best to depart from the stale argument as to whether the De Canas doctrine remains valid or even relevant and pose a slightly different, but hopefully more insightful question, one that reflects this new third phase: Does De Canas mean the same thing today as it did in the 1970's before IRCA? Rather than overturning precedent, as the High Court is understandably and traditionally loath to do, would it not be more likely, and provide more enduring guidance, for the Justices to retain De Canas as a model but change the way in which it is applied?" 13 Bender's Immigr. Bull. at 1258.
Juliet P. Stumpf sets the stage for what is likely to be a major case before the U.S. Supreme Court:
"The recent intense state and local interest in regulating noncitizens is a symptom of a larger struggle. We are witnessing a clash of sovereignties in which the relationship between noncitizens and subnational government depends upon the survival or demise of the age-old rule of exclusive federal control of immigration. ... Precedent and the history of exclusion of states from pure immigration law alone are unlikely to resolve this conflict in cases where subnational governments seek to single out noncitizens through legislation or enforcement actions. Ultimately, the lawfulness of state and local governments as major players on the immigration law stage will be determined not by the power of precedent in preemption and equal protection doctrine, but rather by the extent to which the judicial, legislative, and public imaginations link immigration law with traditional understandings about what states do. ... The concerns raised here do not fit neatly into preemption or equal protection analysis. They reach beyond the question that preemption analysis raises of whether state laws or enforcement actions conflict with federal immigration law and resist confinement in the neat categories that equal protection doctrine requires for comparing the treatment of citizens and noncitizens. They do, nevertheless, stoke the ageless constitutional fascination with the tug of war between the federal and state governments and highlight the necessity to limit subnational power over the lives and fortunes of the noncitizens in our midst." States of Confusion: The Rise of State and Local Power over Immigration, 86 N.C.L. Rev. 1557, 1616-1618 (Sept. 2008).