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Wednesday, June 27, 2012

Immigration Makes Strange Bedfellows: How Arizona Convinced Scalia and Alito to embrace the Presumption Against Preemption

Being both a federalism fan and a libertarian can be stressful: As I have noted before, the principles are often at war with each other -- and no place more directly than in the Court's decision in Arizona v. United States. The press reported the decision as a sort of tie, with Arizona's managing to sustain section 2(B) of S.B. 1070, the provision requiring law enforcement officers to check a detainee's immigration status. This interpretation, however, is really a misrepresentation: Kennedy's opinion for the majority upholds section 2(B) by construing it as authorizing state law enforcement officials to check a detainee's immigration status only so long as they do not extend the duration of the detention to do so. The alien stopped for running a red light can be made to wait in his or her car for a bit while the officer calls ICE. But the officer cannot arrest the immigrant based on anything that ICE tells the officer. The officer cannot even detain the alien longer than the average traffic stop would take to ascertain the alien's status, because Kennedy's opinion imposes broad preemption on any unilateral state enforcement of the Immigration & Naturalization Act that is not specifically authorized by 8 U.S.C. section 1357(g).

In short, contrary to press reports, Arizona was routed by the United States: There is not enough of S.B. 1070 left over after SCOTUS worked it over to put in a box for a decent funeral. So...how should a good libertarian federalist feel about such a nationalistic yet libertarian decision?

On one hand, my libertarian instincts tell me that S.B. 1070 was a nasty and gratuitous piece of nativism: Good riddance to it. On the other hand, Kennedy deployed sweeping rhetoric of field preemption to dispatch section 3 (which added state sanctions for an alien's failure to register in accordance with federal law) and conflict preemption that might as well have been field preemption to eliminate sections 5(C) and 6 (making it a misdemeanor for undocumented aliens to accept Arizona employment and authorizing warrantless arrests respectively). Both varieties of preemption rested on the same appalling notion that I had thought Justice Kennedy had vigorously and rightly laid to rest in Gonzales v. Oregon -- the notion that an executive's interpretation of a statute embodied in an informal enforcement policy can have sufficient force preempt state law. The Arizona majority essentially adopted the view that the Immigration & Naturalization Act constituted a delegation of discretion to the President to set enforcement priorities in ways that would bar states from setting different priorities. From the perspective of federalism, this holding is devastating, because it transforms ordinary prosecutorial discretion (i.e., the power of the President to set federal priorities to conserve scarce federal resources for the most pressing priorities) into the power to limit states' enforcement of state priorities. Of course, as Justice Scalia noted, the latter cannot be justified by scarcity of federal resources, since the state is spending its own money.

And yet, in the end, I think that Arizona might ultimately be beneficial to federalism, for two reasons. First, Kennedy limited his extraordinary theory of Presidential preemption to the narrow context of immigration law (using the usual method of playing up Hines v Davidowitz and down-playing De Canas v. Bica). Second, the majority opinion managed to provoke from both Justices Scalia and Alito an angry invocation of the presumption against preemption.

It is worth pausing a bit on that second point: That Scalia and Alito would embrace this "presumption against pre-emption where traditional powers are at stake" (Alito's words at page 9) is an exceptional tribute to doctrinal opportunism. After all, both Scalia and Alito joined the 4-vote plurality opinion authored by Justice Thomas in PLIVA v. Mensing in which Thomas relied heavily on Caleb Nelson's justly famous article on preemption to call for the presumption's abolition. Kennedy specifically refused to join this part of Mensing, so that, until this Monday, the presumption against preemption seemed to hang by a single vote. I had earlier bemoaned this state of affairs as an attack by hyper-textual formalists against sound federalism doctrine.

But now Scalia and Alito seem to have been converted from "Calebism," and the presumption seems safe again, attacked only by the lone Justice Thomas and, perhaps, Chief Justice Roberts. How could Justices Scalia and Alito forget so soon their foray against the presumption that they now invoke?

My personal theory: I think that immigration policy makes people crazy. It is not simply that Justices Scalia and Alito simply forgot their own votes in Mensing. Justice Scalia also went so far off the tracks as to rely heavily on Mayor of New York City v. Miln for the proposition that states enjoy a core sovereign right to exclude people from their borders. Miln, you'll recall, is the 1837 opinion by Justice Taney that allowed New York City to bar "paupers" from its territory despite the dormant commerce clause. Aside from being overruled by Edwards v. California, Miln is now generally regarded as an appalling tribute to Jacksonian contempt for the property-less poor. Taney famously announced in Miln that "it as competent and as necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported." Edwards soundly rejected this view of states' sovereignty in 1941 by noting that "it will now not be seriously contended that, because a person is without employment and without funds, he constitutes a 'moral pestilence.' Poverty and immorality are not synonymous."

That Scalia would engage in such a doctrinal atavism as to rely on such a wretched bygone as Miln in order to defend Arizona is just as sign of how smart people become unhinged in the presence of undocumented aliens. What's next -- a citation to Dred Scott to define limits on Congress' power in federal territories? (More generally, the notion that states still have any sovereign right to exclude people from their borders after Saenz v. Roe is a weird fantasy that helps discredit Scalia's dissent more than anything Justice Kennedy could have written in the majority opinion).

But thank goodness! As a result of Scalia's and Alito's near-phobic reaction to the Obama Administration's immigration enforcement policy, seven justices have now paid tribute to the presumption against preemption. True, Hines has now become the banner of field preemption -- but only in the area of immigration: As a federalist, I can live with that. Meanwhile, Scalia's and Alito's nationalism has at least been undermined a bit by their embrace of the presumption against preemption for traditional state powers. It seems that their embrace of Caleb Nelson's nationalism was just a passing phase for the Nationalism Four -- a flirtation with scholarship that simply could not withstand prolonged exposure to an immigrant-friendly White House and a nativist Arizona.

Posted by Rick Hills on June 27, 2012 at 05:49 PM | Permalink


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Great post! But I'm surprised, given that you noticed how Scalia and Alito lost track of their own previous purported views on abstract preemption doctrine, that you somehow still cling to the idea that Kennedy -- Kennedy! -- would remember "putting to rest," reviving, or leaving in his other vest pocket any particular "notion" about the law.

Kennedy doesn't work with ideas. He's a tinkerer. Put stuff in front of him and he messes with it, tries switching wires around, and dings his thumb with the propeller. Things should be taken away from him if doctrines, ideas, or even "notions" govern their proper functioning.

Good luck to the Republic tomorrow.

Posted by: Jim von der Heydt | Jun 27, 2012 10:32:34 PM

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