Monday, July 16, 2012
Professor David Martin offers this thougtful take on the Supreme Court's decision in Arizona v. United States.
Abstract: This short essay assesses the Supreme Court’s decision in Arizona v. United States as a significant win for the federal side, even though the most controversial provision in the challenged Arizona statute, the “show your papers” provision, was upheld against a facial challenge. That single approval came with high court warnings to Arizona about the possibility of future as-applied hurdles, and it was accompanied by disapproval of the other three challenged sections. Importantly, the Court rejected the “mirror image” theory on which Arizona (and authors of similar restrictive laws in other states) had placed much reliance: a theory that state criminalization of immigration violations is permissible if it merely adds penalties while mirroring the federal substantive rules. The majority also reaffirmed a strong version of “obstacle preemption,” which should bolster federal immigration preemption claims in the future. And it ruled that federal-state cooperation, under a centrally contested federal immigration provision, 8 U.S.C. § 1357(g)(10)(B), requires a “request, approval, or other instruction from the Federal Government.” Federal primacy, not federal exclusivity, was what the federal government sought in this suit, and that is exactly what the Court endorsed with this interpretation. Finally, a 5-3 majority that solidly included Justices Kennedy and Roberts rejected a remarkable state-sovereignty theory propounded by Justice Scalia in his vitriolic dissent, which also gratuitously attacked the federal government’s policy, announced less than two weeks before this decision, that will generally prevent removal of unauthorized aliens who came to the United States as children and have lived here for five years. The majority, in contrast, pointedly affirmed “broad, undoubted” federal power over immigration and the status of aliens. And it endorsed the exercise of federal prosecutorial discretion in the immigration field, including to address “immediate human concerns.”