Legal Commentary

Is the Arizona Immigration Law Preempted?

By Jonathan H. Adler

There?s no shortage of opinions on the legality of Arizona?s strict new immigration law. Over on the NYT?s ?Room for Debate? blog, Steven Camarota of the Center for Immigration Studies argues the law ?is designed to mirror federal immigration law? and thereby avoids any preemption problem.  The ACLU?s Vivek Malhotra, on the other hand, argues the law ?represents the most serious incursion by a state into the federal province of immigration regulation and enforcement since California?s Proposition 187 in the 1990s.?  Malhotra also echoes concerns that the law will encourage racial profiling and unconstitutional discrimination against Latinos.

Jack Balkin has an interesting post on the preemption question.  As he notes, Arizona claims that the law is designed to reinforce federal requirements, so the preemption argument will likely turn on whether it can be shown that the law, in practice, inhibits or interferes with federal administration and enforcement of federal immigration law.  This seems right to me.  I am less sure about another point he makes:

There is a much stronger argument that the new Arizona law, while purporting to be helpful, actually sticks a thumb in the eye of the federal government by engaging in draconian measures. The Arizona legislature appears to be saying, in effect: ?since you won?t police the borders, we will, and if you don?t like it, pass some new legislation.? If this is the point of the new Arizona law, then the law isn?t really an attempt at cooperation but an attempt at provocation and one-upmanship, and the chances that it is preempted increase.

If I understand him correctly, he is suggesting that the preemption question turns, in part, on whether a state is seeking fill a gap left by federal inaction in the hope at provoking a federal response, such as more comprehensive federal legislation.  Given that I focus much of my time on environmental law and policy, this is a particularly provocative claim, as it would seem to apply to many recent state climate change enactments.  Various states have adopted climate change policies even though states are incapable of having an appreciable effect on atmospheric concentrations of greenhouse gases.  One of the defenses of these laws is that the federal government has abdicated its responsibility to address climate change, so states should be free to act, even if that means adopting inefficient measures, as such actions could spur a federal response.  So it was argued that California should be allowed to adopt greenhouse gas emission standards for motor vehicles because the Bush Administration had failed to act.  Further, the prospect of variable state standards might prompt the auto industry to support federal action, much as state-level environmental controls in the 1960s prompted the auto industry to support federal air pollution legislation.

While I think there are interesting parallels between Arizona?s immigration law and state climate change laws, I am not sure that this should affect the preemption analysis.  It seems to me that this political dynamic should be immaterial to the preemption analysis, and that the preemption question should turn on traditional factors, such as the scope and content of existing federal statutes and whether state laws, in fact, conflict with federal law.

Full post as published by The Volokh Conspiracy on April 27, 2010 (boomark / email).