Federalism and Preemption: The Arizona Immigration Case (Updated)Michael Ramsey

The Supreme Court will hear oral arguments tomorrow in Arizona v. United States, the case challenging Arizona’s laws governing illegal immigrants.  For most people, this is a case about immigration.  For me, it’s about preemption.  I wrote a while back, with this case in mind:

Preemption should be fairly straightforward.  State laws that conflict (explicitly or implicitly) with constitutional federal laws are preempted.  State laws that don’t conflict with constitutional federal laws are not.  If Congress wants to preempt state law, it’s easy enough to write that result into the applicable statute.  But in the past the Court has indulged in a confusing array of textually and historically unsupported speculations about federal structure and congressional purposes that go well beyond anything that's in either Article VI or in the relevant statute.  In foreign affairs, in particular, the Court has sometimes found a presumption in favor of preemption, either because foreign affairs is a uniquely national area as a matter of constitutional structure or because it assumes Congress would want broad preemption – again due to the nation-wide implications – even if Congress hasn’t said so directly.  None of this seems necessary or appropriate.  Congress is perfectly capable of protecting itself from the states.

So I’ll be rooting for Arizona in this case, for reasons that have absolutely nothing to do with my views on immigration.  To amplify the above thoughts, a broad view of preemption undermines the federal system.  Oversimplifying only a little, the supremacy of the national government over the states operates at two levels.  First, certain things are declared to be purely national by the Constitution (chiefly in Article I, Section 10, which prohibits states from entering into treaties, engaging in war, etc.).  Second, as to other things of a potentially national character, the national government is empowered to act on them, and to the extent it does so, states are not allowed to act contrary to federal law.  No one disputes that immigration is in the second rather than the first category.

Within that second category, the main protection of the states is (as the great Herbert Wechsler said) political.  Assuming the subject is within Congress’ enumerated powers, Congress’ enactments are supreme law under Article VI.  But to get the protection of Article VI, Congress must enact something that displaces the states.  Legally, this is not difficult (all Congress needs to say is: the states are displaced).  But politically it may be hard.  Bicameralism and non-constitutional impediments such as the filibuster may make it difficult to get things done at the national level.  There may be political costs for Congress from excluding state actions from a particular area.  These “political” protections of federalism counterbalance Congress’ theoretically absolute control over the states in its areas of enumerated powers.

A broad judicial view of preemption undermines these protections, because it gives Congress a victory without the political costs that are the main constraint on national power in these areas.  Consider the immigration law.  Congress could have declared that state enforcement of immigration laws was preempted.  It didn’t.  After Arizona passed the law at issue in the present case, thus making the issue manifest, Congress could have passed a new law overriding it.  If the Arizona law is really as destructive to U.S. interests as critics say it is, that’s obviously what Congress should have done.  (Note that the Arizona law was passed in April 2010, when Democrats controlled both houses of Congress).  Nothing prevented congressional action – except the political cost of acting.

But here’s where a broad judicial view of preemption provides Congress with an escape route.  If the Court applies preemption broadly, to implement the Court’s best guess of what Congress might have intended, the tough political choice for Congress can be eliminated.  Congress can have it both ways: it can avoid tackling the state law directly, and leave it to the Court to displace the state law based on the Court’s perception of generalized congressional objectives not reflected in the statute’s text.  The Court acts in the name of Congress, but in fact it does something that Congress did not have the political will do to expressly.  As a result, the Court undermines a political protection of federalism by displacing a state law Congress was politically unwilling to say directly should be displaced.

As Justice Thomas explained in his important concurrence in Wyeth v. Levine in 2008, Article VI supports preemption only when a state law conflicts with the text of the federal law.  It is only "Laws of the United States made in Pursuance [of the Constitution]" that are supreme law -- not the Court's speculation as to underlying congressional purposes.  Thus the correct question in the Arizona case is whether anything actually contained in the text of the federal immigration laws conflicts with anything in Arizona law.  My sense is that the answer is no -- that the central claim by the United States is instead that the Arizona law conflicts with the generalized purposes of federal law or with executive branch enforcement policies.  That should not be sufficient.

UPDATE:  As reported at The Blog of Legal Times, Senator: If the Court Doesn't Strike Arizona Immigration Law, Congress Will.  That seems to me to be the best solution but also to have the institutions' roles exactly backwards.  It is Congress that should have primary responsibility for deciding which state laws are inconsistent with national priorities.  The Court should implement those congressional choices, as reflected in duly enacted statutes.  If it's not clear what choice Congress has made, it should be up to Congress to clarify, not up to the Court to guess what Congress might think.  At least, it seems to me that this is the design indicated both by the Constitution's procedural protections of federalism and by the specific text of Article VI, which says that enacted statutes -- not the Court's best guesses at Congress' objects and purposes -- are the supreme law of the land.