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.