November 23, 2012
Immigration Article of the Day: Immigration Federalism & Preemption in Arizona v. United States by Troy Fuhriman
Immigration Federalism & Preemption in Arizona v. United States by Troy Fuhriman, Kyungpook National University Law School; University of Maryland University College - Asia August 30, 2012 Study of American Constitutional Law, Vol. 23 No. 2, pp. 207-257, 2012
Abstract: Arizona v. United States is in many ways indicative of the messy state of the balance of power between state and federal governments in various substantive areas of law in the way it both illustrates direct tension between state and federal power in a policy area that has been clearly the purview of both the state and federal authorities and further illustrates the very tensely contested, yet ongoing trend towards centralization of power into the federal government and away from the states. This article focuses on presenting the context for, and a basic analysis of, the Arizona decision. In order to do this, it explores the background and history of American federalism, particularly within the context of explaining the shifting balance between state and federal laws and policies in the field of immigration and alien-related regulations and the failures of the federal government’s immigration policies and enforcement measures in both creating, and failing to address, a massive population of unauthorized immigrants. In order to compensate for massive federal failures in immigration policy and enforcement, the State of Arizona passed The Support Our Law Enforcement and Safe Neighborhoods Act (commonly referred to as 'SB 1070') in 2010. The law was written in an effort to encourage unauthorized immigrants to leave Arizona on the basis of 'attrition through enforcement.' It was immediately challenged in federal court by the Obama administration on federal preemption grounds. Ultimately, this article presents and analyzes the Arizona decision concerning three of the four challenged sections of SB 1070, ultimately concluding that the Court largely misconstrues and/or ignores established preemption analysis precedents. Nevertheless, the Court reaches the proper conclusion under preemption doctrines with respect to Section 2(B) of SB 1070. Then it misapplies the field preemption analytical framework with respect to Section 3 and fails to properly employ the obstacle-based preemption doctrine with respect to Section 5(C). Additionally, while paying lip service to it, the Court fails to respect the historic presumption against federal preemption. Such a failure is particularly grievous given that the Court states '[t]he problems posed to the State [of Arizona] by illegal immigration must not be underestimated' but then summarily ignores such problems in its preemption analysis. Instead of being ignored, such problems should have strengthened the presumption against obstacle-based preemption. If the Arizona Court had followed established preemption precedents, it would have resulted in striking a much different immigration federalism balance of power and creating a better, easier to follow precedent for the future.
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