More on US Lawsuit to Squash AZ Law (Less Wishy-Washy)

Julian’s link to the WSJ blog post forces me to aim for something a little more coherent (apologies, I didn’t know they were doing the interview format – thought they were on the usual fishing expedition for a soundbite or two).  The bottom line: I think there’s a pretty good chance the S.B. 1070 will be enjoined before it goes into force.

Here is DOJ’s press release and supporting documents, including the complaint and brief, both of which are nicely crafted and which persuade me that in one crucial respect the AZ law is too clever by half.

The state law closely tracks federal law (the drafters were advised by UMKC lawprof Kris Kobach, and it shows).  It doesn’t criminalize illegal presence per se, but rather a failure to possess alien registration documents (which undocumented aliens will never have).  Under federal law, presence in the US in violation of immigration law is itself not a criminal offense; failure to carry registration documents is.  But the latter is almost never enforced.  The AZ law is thus technically consistent with federal law, but only technically.  In the filings, DOJ notes that there will be many folks (mostly coming under the umbrella of humanitarian cases — think undocumented Haitians after the earthquake) whom the federal government would let be but might still end up in the clink in Maricopa County.

That said, the argument that S.B. unconstitutionally interferes with foreign relations strikes me as a stretch, for all the reasons that Crosby and Garamendi are weak decisions and the “one voice” mantra (see the brief at 24) is obsolete.  Where the brief cites the 1941 decision in Hines v. Davidowitz to the effect that “Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government,” you can see how we’re in another world.  S.B. 1070 may be an agenda item in US-Mexico relations, but it’s unlikely to open up a third front.  If it’s such a big problem, the political branches are free expressly to preempt the state measure.

Nor is Mexico powerless to act.  We’ve got a travel advisory from the government, and the private sector below the border doesn’t have to be told that its business would better be done with Texas and California.  Those are likely to start taking a toll among Arizona voters, certainly those who lose their jobs.  Meanwhile, the Mexican government just filed an amicus brief in a parallel challenge to S.B. 1070, oddly complaining that S.B. 1070 “directly interfer[es] with the U.S. Department of State’s ability to conduct foreign affairs and policy” and “inappropriately burden[s] the uniform and predictable sovereign-to-sovereign relations.”  Hey, it’s a complicated world out there.  Mexico should be able to handle it without an assist from the federal courts, though it may get one here.