Arizona v. United States: Judicial PreemptionMichael Ramsey

John Eastman has this analysis of the Arizona v. United States decision at Bloomberg: Where the Supreme Court Went Wrong in Arizona.  He puts it exactly right, from my perspective, in this passage:

So where did Kennedy’s majority opinion go astray? In striking down the three provisions of the Arizona law, it bucked a recent trend of the court with respect to its pre-emption doctrine. There is no question that, in exercising its powers over naturalization and immigration, Congress can expressly pre-empt various state laws that would conflict with the federal law. But there was no express pre-emption provision in federal law that prohibited Arizona’s efforts. …

Kennedy thus had to resort to various implied pre-emption doctrines, about which the court has grown increasingly suspicious. Field pre-emption, for example, has in the past recognized that when Congress so comprehensively occupies an entire field of the law, we can infer that it intended to displace any state authority over the subject. And “policy” pre-emption [ed.: I would say “obstacle preemption,” since that's the standard doctrinal term] yields the view that states can’t act if, in the court’s judgment, they are undermining unspoken policy goals of the congressional statutory plan.

Both doctrines require the justices to engage in the highly speculative enterprise of what Congress might have intended by its silence, and, as I said, the court has grown increasingly suspicious of the very legitimacy of that enterprise.

Not so with Kennedy’s opinion, which embraces both doctrines. Congress’s decision not to impose federal criminal sanctions was viewed as a deliberate decision to bar states from imposing state criminal sanctions. But, as the dissenting justices pointed out, it is an equally plausible inference that Congress simply wished to leave the matter of whether to impose state criminal sanctions to the states.

Normally, any such ambiguity would be interpreted to the benefit of the states, because in other areas of the law, the Supreme Court has been pretty adamant that the displacement of state sovereign authority can only be done with the clear and unambiguous determination of Congress. In other words, there is normally a presumption against pre-emption.

That presumption will no longer apply as vigorously in the immigration context in areas where the federal government has extensively regulated. [Ed.: see also this post by Mike Dorf: SCOTUS Adopts a Tacit Presumption in Favor of Preemption in Immigration Cases].

I'm not sure the Court has grown "increasingly suspicious" of implied preemption, but it should, as the Arizona case illustrates.  Like most difficult preemption cases, the case asks whether the federal law is supposed to be a minimum that states can supplement with their own laws or a maximum that states cannot exceed.  (For example, does the fact that federal law in general imposes only civil, not criminal, penalties for being in the U.S. illegally mean that the states can chose to impose their own criminal penalties, or not?)  The problem, absent statutory language addressed to that matter, is that other than in exceptional cases there isn't any way to answer the question apart from speculation (and in fact various members of the enacting Congress probably had differing views on the question, to the extent they considered it at all; reconstructing what Congress as a whole thought is likely impossible even in theory).  And judicial speculation in this regard usually reduces to what the judge thinks is reasonable (since surely Congress would have acted reasonably!).  The result is preemption by judiciary, which is not the constitutional design.

As Professor Eastman suggests (and the Court has sometimes said) the better approach would be to require Congress to be clear on the matter -- Congress can displace states expressly (or by clear implication) and remove the need for speculation.  This is the core of Justice Thomas' relatively short and straightforward dissent in the Arizona case.  Adoption of that approach would get us back to the idea of statutory preemption by Congress rather than speculation by the courts.

And no great harm is likely to arise from taking Justice Thomas' approach.  If the courts fail to preempt something Congress wants preempted, Congress can easily correct the error.  It might be argued, of course, that Congress can also correct decisions that wrongly find preemption, so there's no need for a presumption in favor of the states.  But Congress is more likely to act quickly and decisively to correct errors that threaten its own power, as compared to errors that threaten state power.  Moreover, Article VI says that federal law "made in Pursuance" of the Constitution (that is, through the Article I, Section VII procedures) displaces state law, not unenacted policies.  So I view the case in general as an unfortunate step away from the right approach to preemption, albeit one fortunately likely to be limited to immigration.

On the other hand, I absolutely agree with the majority opinion (contra Professor Eastman and the dissents) that "preemption" should not be hyphenated.