For decades, the Supreme Court has understood that our Constitution does not allow the fifty different states to set their own immigration policy, and for good reason. As the Court explained nearly 70 years ago, foreign nations do not take kindly to mistreatment of their citizens within the United States, and such mistreatment can have catastrophic consequences. “Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.”
Which explains why a bipartisan team of former foreign policy and national security officials, including former Secretary of State Madeleine Albright, former Defense Secretary William Cohen, and former Deputy Secretary of State John Negroponte, filed an amicus brief in the Supreme Court earlier this week warning the Court not to allow Arizona’ anti-immigrant SB 1070 law to stand. As the brief warns, Arizona’s actions “risk of embroiling the national government in disputes not of its making” — forcing the entire nation to live with the consequences of just one rogue state’s actions.
Moreover, the brief explains, these consequences have already begun:
S.B. 1070 rapidly generated significant friction between the U.S. and other countries and made them less willing to cooperate with the United States. Only a month after the law took effect, the President of Mexico expressed his country’s concern in a speech to the U.S. Congress,11 raised the issue in bilateral talks with President Obama, and addressed it in a joint press conference following their meeting. In June 2010, six Mexican governors cancelled their trips to Phoenix for an annual conference of U.S. and Mexican governors on border issues, leading Texas and Arizona to boycott the rescheduled conference venue in New Mexico. And unfavorable public attitudes in Mexico towards the United States jumped from only 27 percent to 48 percent shortly following enactment of the Arizona law—no minor consequence for the millions of Americans who travel to and conduct business with Mexico each year.
Arizona’s law has also produced ripple effects throughout Central and South America. It has damaged U.S. relations with Bolivia, Brazil, Columbia, Ecuador, El Salvador, Guatemala, Honduras, and Nicaragua, whose presidents and parliaments have issued statements criticizing the law. Both El Salvador and Mexico have also issued travel warnings or alerts to their citizens traveling to the U.S.
State immigration laws like S.B. 1070 also create a risk of retaliation against U.S. citizens residing or conducting business abroad. Indeed, in immigration matters, countries frequently respond to restrictions on their citizens by enacting reciprocal measures. For example, in 2004 Brazil singled out U.S. nationals for fingerprinting and photographing upon entry into Brazil to respond in equal measure to the U.S. fingerprinting of foreign nationals under the Enhanced Border Security and Visa Entry Reform Act of 2002.
In light of this week’s Affordable Care Act arguments, it remains an open question whether the Constitution and precedent still apply at all in the Supreme Court of the United States. If they still do — or if the justices care one bit about America’s ability to conduct responsible foreign relations — the justices need to heed these officials’ brief and strike down SB 1070.
Disclosure: Two of the signatories to this brief, former Deputy Secretary of Defense Rudy deLeon and former Assistant Secretary of Defense Larry Korb are employees of the Center for American Progress Action Fund.