The legal doctrine at the heart of tomorrow’s Supreme Court argument concerning Arizona’s harsh immigration law is known as “preemption.” Because the Constitution makes federal law the “supreme law of the land,” federal law preempts any state law that conflicts with it and it can even invalidate laws which undermine the goals of federal legislation. Thus, the Obama Administration argues, the Arizona law is invalid because it systematically undermines the balance struck by our federal immigration system.
Under existing law, there is little question that the administration is correct. For at least seventy years, the Supreme Court understood that state immigration laws are almost always preempted, and for good reason. Foreign nations do not take kindly to mistreatment of their citizens within the United States, and such mistreatment can have catastrophic consequences. In the Court’s words, “[e]xperience 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.”
As a bipartisan group of senior State and Defense officials warned the justices in an amicus brief, Arizona’s law “risk[s] 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. Foreign policy decisions should be made by officials elected to govern the entire United States, not just one of fifty states, and so the Supreme Court has historically respected the federal government’s exclusive authority over immigration policy.
Significantly, the rule favoring preemption of state immigration law distinguishes immigration from most other areas of law. Neither America’s national security nor its foreign policy is as clearly implicated by laws protecting consumers, workers, children or the elderly, so state laws protecting these groups has not historically been subject to sweeping claims of preemption. In these cases, the courts apply a “presumption against pre-emption,” and seek to preserve state law unless Congress clearly intended otherwise.
In other words, the balance of power between the federal and state governments has been clear for many decades. Just as Arizona is not allowed to declare war on Mexico or negotiate a free trade agreement with China, it also may not set its own immigration policy because foreign policy matters must be decided by the national government. Arizona is free, however, to protect the health, safety and economic prosperity of its citizens by regulating businesses and ensure that all products sold within the state are safe.
Both parts of this balance of power are now threatened by the conservatives on the Roberts Court.
On the domestic front, many of the Court’s conservatives appear eager to simply eliminate the presumption against preemption in favor of a new presumption in favor of wealthy corporations. Thus, several of the Court’s conservatives joined a dissent claiming that the existence of FDA regulation of the drug industry immunized drug companies from a lawsuit brought by a woman who lost her arm and her livelihood to a dangerous drug. And this is hardly the only example of the conservative justices aggressively trying to wipe out state laws protecting ordinary Americans from corporate excesses.
Tomorrow’s case asks the justices to reverse the equally well-established rule against permitting states to set their own immigration laws. If the justices take Arizona up on this request, the consequences will not simply be felt by the thousands of immigrants forced into the shadows by Arizona’s illegal law. It will be felt by all Americans as our nation’s foreign policy suffers, and as the Roberts Court once again shows their disregard for the law.