Monday, June 25, 2012

SCOTUS Adopts a Tacit Presumption in Favor of Preemption in Immigration Cases

By Mike Dorf


I have been telling people for over a year that the  Arizona immigration case  is not about the Constitution per se, but about federal preemption.  With the possible exception of Justice Scalia (about whom more, momentarily) no one doubts that Congress--if it so chose--could either permit or forbid states to do what Arizona has done here.  The question is what Congress did, not what Congress has the power to do.

But there is another sense in which the case was always about the Constitution: Faced with silence or an ambiguous statement from Congress, does the primacy of the federal government in immigration matters place a thumb on the scale in favor of preemption?  Relatedly, is there a dormant immigration doctrine?  In the Crosby case in 2000, the Court did not reach the question of whether there is a dormant foreign affairs doctrine, and today's decision likewise does not reach the dormant immigration question.

However, the opening statements in Justice Kennedy's majority opinion pretty strongly affirm the leading role of the federal government in immigration matters.  Likewise, his application of field preemption and obstacle preemption appear to be influenced by a tacit presumption that Congressional silence = prohibition of additional state enforcement.

I find all of that convincing.  There are sound structural and policy reasons to assume that Congress wanted a uniform national policy on immigration--just as, in other contexts, one might think that it's not quite as important that federal statutes be interpreted to have field preemptive or obstacle preemptive effect.  Thus, if I have a gripe with the opinion today, it's that I wish the Court had made explicit the tacit assumption that states need a clear invitation to regulate immigration.

Such a clear statement would have been especially welcome in light of Justice Scalia's dissent.  Although Justice Scalia grudgingly accepts the power of Congress to preempt at least some state immigration enforcement efforts, he denies that Congress exercised that power.  Moreover, he indulges the polar opposite assumption from the majority.  The power to exclude "obnoxious aliens," Justice Scalia says, is inherent in the sovereignty that the states have retained.  (In fairness, Justice Scalia puts "obnoxious aliens" in quotation marks, attributing the line to James Madison.)  Thus, far from requiring a clear statement by Congress to permit state regulation of immigration, Justice Scalia would apparently require a clear statement by Congress to forbid (i.e., preempt) state regulation of immigration.  His argument is chiefly originalist: At the founding, state authority over immigration was undoubted.  The only question was whether it was exclusive.  Despite the growth in federal power over immigration over the centuries, Justice Scalia contends that states retain inherent authority in this area.

Yet Justice Scalia apparently stands alone in these views.  At least he did not pick up any direct support from the other two Justices who broke with the majority.  Justice Thomas agreed with Justice Scalia on the bottom line, but that's because Justice Thomas doesn't believe in field preemption or obstacle preemption.  He accepts conflict preemption, and that's that.  Meanwhile, Justice Alito, who split the difference between the majority and Justice Scalia on the result, appears to have indulged in no presumptions about immigration preemption, treating the case as one might treat statutory interpretation in any other context.

Finally, even though the Administration lost unanimously on the challenge to the provision that garnered the most attention--the requirement that AZ officials detain people reasonably suspected of being illegally present while they attempt to verify immigration status--the lead opinion strongly suggests that the challenge to that provision is merely premature.  The Arizona courts can have it upheld, but only by construing it narrowly.  Thus, all in all, this was a good day for the Obama Administration.  On Thursday, we'll see whether that amounts to more than a footnote for the OT 2011 Term.

26 comments:

egarber said...

I think it's also noteworthy that nothing in the opinion rules out an equal protection challenge. Since that's really what the public outrage has been about, it's probably better if the court ultimately deals with it on those terms (vs. preemption). Average Americans don't really care about preemption; however, they undoubtedly understand discrimination.

egarber said...

Actually, the Court is almost inviting other challenges, it seems to me.

From the NY Times:

“This opinion,” Justice Kennedy wrote, “does not foreclose other pre-emption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

matt30 said...

It seems to me that Kennedy’s silence on the issue endorses the idea that there is NO inherent constitutional preemption on immigration matters. It seems to me that the presence of a comprehensive scheme of regulation was key; hence the reliance on Geier v. AHM Co.

Imagine a case where Congress is completely silent on the issue of immigration (or where congress only regulates activity on one particular boarder). Here, obviously, it would be a difficult thing to say a state is field preempted - and I think the only way Scalia's sovereignty argument is persuasive. Once it's determined that Congress did have a comprehensive scheme (or at least attempted one), silence on an issue must weigh in favor of preemption.

The Dismal Political Economist said...

If you take the time to read Justice Scalia's dissent it is truly a remarkable one, and not in a good sense.

For example Justice Scalia brings the Obama policy on not pursuing young people brought to this country as children into the debate, when it is clearly outside the case, and the Justice sets himself up as an arbiter of how to spend federal dollars.

This post here goes into more detail,

http://dismalpoliticaleconomist.blogspot.com/2012/06/justice-scalia-in-arizona-v-united.html

along with the hope that someday Justice Scalia will be stopped in Arizona and suspected of being an illegal alien.

Michael C. Dorf said...

In reply to matt30: As I said, the Court does not adopt a principle of dormant immigration preemption--just as in Crosby the Court did not expressly adopt a principle of dormant foreign affairs preemption. My contention (and it's more a "feel" than anything I can rigorously prove) is that the Court applies ordinary preemption principles in a way that favors preemption because of federal primacy in this area. That's a good approach. I just wish it were adopted expressly.

The Dismal Political Economist said...

Scalia's dissent elicited a similar response to mine from WP columnist Dana Milbank

"In an extraordinary display of judicial distemper, Scalia departed entirely from the law at one point and attacked an Obama administration policy that wasn’t at issue in the case. Footnoting a New York Times news article rather than case law, Scalia opined on a recent news conference by President Obama.

Scalia’s dissent, more campaign speech than legal opinion, claimed that the Obama administration “desperately wants to avoid upsetting foreign powers” and is acting with “willful blindness or deliberate inattention” to Arizona’s illegal immigrants. Saying the majority opinion “boggles the mind,” Scalia suggested that states are “at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws.”

I am wondering if some of the legal experts who read and comment on this Forum have any comment on what seems to some of us to be a blatant departure from basic Judiciary principles? Or is the fact that this was a dissent render comments like Justice Scalia made irrelevant?

Ricardo said...
This comment has been removed by the author.
Ricardo said...

Scalia: "The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement."

I didn't know there needed to be justification once preemption was found.

(I deleted the first post because I pasted too much by accident when quoting Scalia.)

Bill Walton said...

Think about a situation where The legislature is absolutely quiet on the problem of migrants (or where congress only manages action on one particular boarder). Here, obviously, it would be a challenging factor to say a condition is area preempted - and I think the only way Scalia's sovereignty disagreement is powerful. Once it's established that The legislature did have a complete program (or at least tried one), quiet on a problem must think about in support of preemption. http://mmohome.com RS Gold Buy Runescape Gold

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Tory Burch said...

Scalia’s dissent, more strategy conversation than legal viewpoint, stated that the Current “desperately wants to avoid disturbing foreign powers” and is performing with “willful loss of sight or planned inattention” to Arizona’s unlawful migrants law. Saying the majority viewpoint “boggles the mind,” Scalia suggested that states are “at the whim of the Federal Executive’s rejection to use the Country's migrants law regulations.”
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ammy lin said...

Justice Scalia apparently stands alone in these views??

The Court is almost inviting other challenges, it seems to me.

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