Arizona Will Knuckle Under to Mexico, Not the Federal Courts

by Peter Spiro

Arizona’s already notorious anti-immigrant measure, enacted last week and making unauthorized presence in the U.S. a crime under state law, isn’t likely to last long.  But the courts may have nothing to do with its demise.  It’s the economic hit that Arizona is clearly going to take that will bring the state around, I suspect sooner rather than later.  Lost tourism and convention dollars will enlist powerful allies in-state for scaling back or repealing the law.  Opponents seem pretty well mobilized (Linda Greenhouse and San Francisco among them).

The more interesting — and constitutionally salient — source of this economic pressure will come from across the border.  Mexicans are incensed about S.B. 1070, and they seem willing to put their money where their mouths are.  The Mexican government has issued a travel advisory of the sort that will surely scare away casual vacation planners.  About a third of Arizona’s exports are to Mexico, to the tune of almost $5 billion.  One recent study counted almost 25 million annual tourist/shopping visits by Mexicans, generating $3.6 billion in income. That translates into jobs, jobs, jobs (30,000 of them) that will now be hearing a kind of giant sucking sound.  Human-rights sensitive travelers from other countries may well follow suit in boycotting the state.  Not exactly a blueprint for economic recovery.

This could prove the best example yet of targeted retaliation by a foreign country against a U.S. state, which in turn supplies a pretty good reason not to find the measure preempted by federal authority.  The exceptional preemption regime for immigration has been justified by its inherent foreign relations component, back to the Supreme Court’s eloquent 1875 decision in Chy Lung v. Freeman.  As with other activities posing a potential threat to foreign relations, the huge systemic downside risks — to the nation as a whole — of allowing individual states to muck up immigration policymaking justified their near-complete constitutional ouster.

But targeted retaliation cuts that exceptional preemption doctrine off at the knees.  In the old world, Mexico’s response would have been against the United States as a whole.  Today, it can be aimed at the offending jurisdiction, in such a way as to largely eliminate externalities that would otherwise distort state-level decisionmaking.  Arizona will shoulder the consequences of its (very bad) decisionmaking, not the rest of us.  My bet is that it will cave, even if the measure is sustained in the courts, in a way that sticks.

http://opiniojuris.org/2010/04/29/arizona-will-knuckle-under-to-mexico-not-the-federal-courts/

5 Responses

  1. Are you seriously suggesting we should strike down a state law because a foreign country has chosen to exercise what amounts to an extraterritorial veto?

    Can I ask what kind of State law could not be struck down if offending a foreign country was all that was required for a sufficient nexus with foreign policy for a successful preemption challenge?

  2. Will all the people against the new law please pay restituition to the crime victims of illegal aliens. Who by the way would not be crime victims if the illegals had not come to America illegally.

  3. Are you seriously suggesting we should strike down a state law because a foreign country has chosen to exercise what amounts to an extraterritorial veto?


    I believe he’s arguing the opposite: that in the modern era, foreign countries can target their retaliation more precisely, so we don’t need to strike down such laws as preempted by federal law due to their effect on foreign relations, because the effect is now more closely contained at the state rather than federal level.

  4. John,

    Sure, just as soon as the people who support the law volunteer to do all the terrible jobs the illegal aliens do for them.

  5. Peter, when I saw this story I knew you’d have something valuable to say about it.  A couple of responses. 

    In the old world, Mexico’s response would have been against the United States as a whole.

    Is that obvious?  Particularly in the circumstances of a shared border between the foreign state and the US state, which I think makes this situation distinctive?

    Today, it can be aimed at the offending jurisdiction, in such a way as to largely eliminate externalities that would otherwise distort state-level decisionmaking.

    Putting aside how things used to be done, and assuming that the global economy makes target retaliation more feasible, I don’t know how to assess the relative impact of the externalities — which I take it you’d concede still exist — on the processes and output of state decision-making.

    One interesting feature of the present controversy is what it suggests about positive externalities — e.g., how other US jurisdictions may benefit from the international controversy, and indeed try to fan the flames.  What implications does that have for preemption?

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