The Left's Dilemma over Preemption in the Arizona Immigration Case

Williamson v. Mazda Motor (i.e., the seatbelt preemption case)and U.S. Chamber of Commerce v. Candelaria (i.e., the Arizona immigration law case) nicely illustrate how any consistent position on preemption will tend to rub up against one's political loyalties. In Williamson, the Solicitor General's amicus brief argues that state tort liability for failure to install a shoulder-and-lap seatbelt does not frustrate the purpose of Federal Motor Vehicle Safety Standard 208 , even though FMVSS 208 gives employers the opition of using either shoulder-and-lap belts or laps-only belts, because "NHTSA made plain its intention to retain Type 1 [lap-only] seatbelts as the minimum level of safety, not part of a required mix of devices." In U.S. Chamber of Commerce, by contrast, the petitioners argue that Arizona's requirement that employers use the E-Verify system does frustrate the purpose of the Immigration Reform & Control Act of 1986 ("IRCA"), because the IRCA expressly abstained from requiring employers to use the E-Verify system, instead offering them the option to verify employee eligibility with E-verify if they wanted to do so.

Is there any persuasive way to reconcile these two positions? Maybe, but I am a bit skeptical. In both cases, federal law gives businesses an option (to use or not to use E-verify, to install or not to install a shoulder-and-lap seatbelt). The central issue of implied preemption is simply whether this federally protected choice liberates businesses from only federal interference or whether the federal law also liberates business from state interference. So far as I can tell from the briefs and lower court opinions, nothing in the language of the relevant laws or precedents forecloses either reading (Geier notwithstanding). Instead, the scope of business discretion under these two laws depends on one's general sense of whether ambiguities in federal laws ought to be read to preserve business's freedom from regulation or states' freedom for collective self-government.

If one tends to be (as I am) a federalism fan, then one will tend to read Geier narrowly and endorse the Obama Administration's position in Williamson. But the same general inclination leads me to reject the Obama Administration's position in U.S. Chamber of Commerce. I do so reluctantly, against my policy priors that Arizona's law is mean-spirited and counter-productive. But, as much as I'd like to do so, I just cannot see a coherent doctrine of implied preemption that would read businesses' option as preempting state supplementary regulation under IRCA but as allowing tort liability under FMVSS 208. After the jump, I'll explore some of the options and offer my reasons for why they seem unsatisfying.

1. "Immigration is Different": The easiest way to distinguish the cases is to invoke the old Hines v. Davidowitz idea that immigration law is a field in which the federal interest is especially strong. The difficulty, of course, is that the "field" of "immigration" is hardly well-demarcated: If De Canas v. Bicas is any guide, Arizona has not entered such a "field," because Arizona has adopted federal standards for defining legal presence in the United States. If one took the broad view that state laws making any reference to the field of immigration or the immigration status of persons are automatically preempted, then one would have to argue that states' and cities' "sanctuary laws" barring police from assisting in the enforcement of federal immigration laws are preempted. As I reject this latter position, I do not see how I can argue in favor of preempting Arizona's "anti-sanctuary" law.

2. "IRCA's preemption clause is stronger than the Safety Act's preemption clause": Not really. IRCA's and the Safety Act's preemption clauses both expressly preempt, and save from preemption, a vaguely defined subject area. IRCA provides that "[t]he provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2). . The question of express preemption, therefore, turns on whether Arizona's law is a "licensing ...law[]." Arizona's law suspends businesses' licenses to do business in the state of Arizona if those businesses do not follow the employee verification procedures contained in the state statute. How is this not a "licensing law"? Admittedly, the category "licensing law" is ambiguous, but, if one favors a presumption in favor of state power where statutes are ambiguous, then it is hard to see why Arizona's law does not fall within the IRCA's very ambiguous savings clause.

Of course, one could simply embrace the position that preemption is justified when states adopt positions that one does not like (or that one's party constituency opposes). This might be the best explanation for the U.S. Solicitor General's divergent positions on preemption in Williamson and U.S. Chamber of Commerce. This opportunistic theory of preemption, however, is unavailable to those of us who think that robust subnational democracy is ceteris paribus desirable even when we disagree with what those robust subnational democrats have wrought.

So I would be grateful for any suggestions from anyone about why these two cases are not paribus: Is there any persuasive theory of preemption that would throw out the bathwater of Arizona's nasty law but save the baby of California's tort regime?