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Friday, July 15, 2011

Arizona's attack on the unitary executive in its defense of S.B. 1070

Throughout the litigation over S.B. 1070 (Arizona's effort to supplement federal enforcement of the Immigration & Naturalization Act with its own state background checks, arrests, etc), Arizona has maintained that it has "inherent" authority to enforce federal immigration law. This position was asserted in a memo authored by Jay Bybee back in 2002, but Arizona has taken the Bybee position one step further: They claim the right to enforce the INA even when the President of the United States vehemently rejects their proffered assistance. As I argue in a post on scotusblog, Arizona's position pits the principle of the unitary presidency against an expansive notion of federalism.

Whatever one thinks of the merits of this version of federalism, one must surely acknowledge that no fan of the unitary executive could embrace it without swallowing hard. The notion that a state can impose its theory of how a federal law ought to be enforced on the President flies in the face of the position that the Presidency has a constitutional entitlement to determine enforcement priorities. Justice Scalia in particular has rejected such a view in opinions ranging from Printz v. United States to AT&T v. Iowa Utilities Bd.. Yes, the INA provides for states' communicating and otherwise cooperating with the federal government. But any advocate of the unitary executive surely must define state "cooperation" in 8 U.S.C. Section 1357(g)(10) in light of background principles of American constitutional law, including the principle of the unitary executive: states do not "cooperate" with the Attorney General, when the AG rejects their help.

So I am expecting conservatives who support the unitary executive -- and the unitarians are disproportionately conservative -- to line up to denounce Paul Clement's anticipated cert petition on behalf of Arizona to the extent that the petition pushes the "inherent authority" line. How many of you readers think that my expectation of intellectual consistency is naive?

Posted by Rick Hills on July 15, 2011 at 12:48 AM | Permalink


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Naive in a sense. I don't think you will see folks rush to defend the unitary executive; instead you'll hear silence.

Posted by: John W. Nelson | Jul 15, 2011 5:06:33 PM

In answer to your question, I do. Naive as naive can be.

Great post, as always.

Posted by: anoninla | Jul 15, 2011 1:51:39 PM

And, to fix the typo, obviously I meant in discussing the second sense of the phrase that the unitarian would evade by arguing that what Arizona is doing does not encroach on federal power.

Posted by: TJ | Jul 15, 2011 1:56:14 AM

It has always seemed to me that we have too many meanings for the term "unitary executive."

In the first sense, we can mean that whatever we define the "federal executive power" to be, the President has it exclusively. In this sense, the theory is nothing more than an argument against federal independent agencies. But it is quite easy for a "unitarian" to evade your criticism under this view, since they will just argue that whatever Arizona is doing, it doesn't encroach on the federal executive power.

In the second sense, we can mean that the executive power is very broad vis-a-vis the legislature and the judiciary. Once again, it is quite easy for a "unitarian" to evade your criticism under this view, since they will argue that whatever Arizona is doing, it does encroach on federal power, and they are speaking only on the internal division of federal power.

In the third sense, we can mean that the federal executive power is very broad against every other government actor. This really would be better named as the "unitary government" theory than as the "unitary executive theory," but the name has stuck. I can see how a principled adherent to this third view would have trouble with SB 1070.

Posted by: TJ | Jul 15, 2011 1:54:37 AM

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