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Monday, March 12, 2012

Can the Federal Government Lose Its Powers by failing to Exercise Them?

In Chamber of Commerce v. Whiting 131 S. Ct. 1968 (2011),  the Supreme Court analyzed an exception to a federal preemption clause in the Immigration Reform and Control Act of 1986.  The Court, 5-3, interpreted the exception for "licensing" to mean that Arizona and other could revoke the business licenses of employers hiring undocumented workers. As a constitutional matter, Whiting breaks no new ground; it is merely an application of De Canas v. Bica, 472 U.S. 351 (1976), a unanimous Brennan opinion which decades ago settled the question, in the affirmative, of whether states have the power prohibit the employment of undocumented workers. 

Nevertheless, at least one of the votes in Whiting, that of Justice Scalia, may have been based on a much more expansive theory.  In the argument, Scalia implied that federal non-enforcement of immigration law informed his view: "[w]hat Arizona says has occurred here is that the scheme in place has not been enforced, and Arizona and other states are in serious trouble financially because of -- of unrestrained immigration.  And therefore, they had to take this very massive--I agree this step is massive and one wouldn't have expected it to occur under this statute, but expectations change when the Federal Government has --has simply not enforced the immigration restrictions."  (Tr. at 8)  This idea, that states gain authority when they determine that the federal government has failed to act in a satisfactory way, is a core argument of many who support state immigration enforcement, and if accepted, would bolster Arizona's size in the SB1070 litigation, Arizona v. United States.  But gee whiz, that can't be right, can it?

The easy answer is that the factual premises are wrong; immigrants are not responsible for disproportionate crime, and do not harm the economy.  Meanwhile, federal immigration enforcement is at record levels, as the largest federal law enforcement agencies, Customs and Border Protection, Immigration and Customs Enforcement, DEA, FBI and Bureau of Prisons, all have, to some degree or another, a hand in immigration and border enforcement.

But assume that the federal government actually decided not to enforce some laws entirely.  If those laws address something within concurrent state authority, such as breaches of the peace or use of drugs, it would not change state authority at all; states had full regulatory power before, and they retain full regulatory power after.  So the question only matters when looking at something that would otherwise be within exclusive federal authority:  Does federal non-enforcement in an area of exclusive federal jurisdiction enhance state power?

Doctrinally, the question is self-answering.  If the federal government has failed to legislate in an area of exclusive federal authority, such as immigration, that is not an invitation for the states to fill the gap.

This seems right as a matter of principle, too. First, we have a system of control, through elections,  over the federal government if it fails to live up to what the people understand as its obligations.  Second, the doctrine of prosecutorial discretion recognizes that not all laws will, should or must be enforced all the time--the executive gets to decide what is most important and pressing. Putting these together, we have the ability, for example, to replace the current federal government with one which will more aggressively enforce the requirement that young men register for the draft if we don't like the non-enforcement of that law, or, alternatively, the people might agree that non-enforcement is fine, becuase other law enforcement priorities are more important and we do not want taxes raised to create new enforcement capacity for that particular offense.

Equally problematic is the question of  who would decide (if not the people through elections) whether the federal government has failed to satisfy its duties?  Could the Governor of Arizona (or any other state) conclude that the U.S. is not trying hard enough in Afghanistan and deploy the Air National Guard?  Could they conclude that the Fed has failed to apply an appropriate monetary policy and determine that the time has come to issue its own state currency?  These are not outcomes that courts could authorize (because doctrine and separation of powers principles allow Congress and the Executive to choose the priorities for their attention.)  Each state, or locality, would seem, inevitably, to have to be the judge of its own case.  So the argument that federal failure enhances state authority ultimately seems to lead to anarchy.




Posted by Jack Chin on March 12, 2012 at 06:59 AM | Permalink


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If Scalia's and Arizona's implied premise is true, then if a state fails to exercise authority reserved to it under the Tenth Amendment, may the federal government then step in and fill that gap?

Assuming arguendo that regulation of health care is reserved to the states, would this very same argument contitute the coup de grâce for the position taken by the same states that the federal government cannot step into the gap left by the states "not trying hard enough" and failing to ensure health care for their citizens through enactment of the ACA?

Are Scalia and the states cutting of their own noses to spite their faces?

Posted by: David | Mar 12, 2012 2:34:14 PM

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