Peter Spiro on the U.S. Lawsuit Against Arizona

Our own Peter Spiro talks to the Wall Street Journal’s Law Blog on today’s filing of a federal lawsuit against Arizona’s immigration law.  The grounds for the lawsuit, as expected, is preemption, even though most of the political debate about the lawsuit is concerned with racial discrimination.  The choice of preemption confirms my assessment that an equal protection  challenge to the Arizona law would be hopeless.  Peter gives a very fairminded (if somewhat wishy-washy) assessment.  Here is an excerpt:

Hi Peter, thanks for taking the time. So we’re essentially talking preemption here, right?

We are. And it’s not a slam dunk for the federal government, by a long shot. There are major question marks on where the law stands on this. The last time the [U.S.] Supreme Court looked at this issue was in 1976 [in a case called De Canas v. Bica], and the Supreme Court in that case upheld the state regulation related to the documentation of workers.

There’s been a lot of water under the bridge since then, though. One potential variable is that there’s a case concerning a different Arizona law pending at the U.S. Supreme Court. [The Arizona law requires employers to verify the eligibility of prospective employees through a federal database called E-Verify and imposes sanctions on companies that knowingly hire undocumented workers. Businesses and the ACLU have challenged the law, also on supremacy-clause grounds.]

That case could have a significant impact on the one filing today. Or it might not. It’s hard to know how the Supreme Court will treat it.

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Is part of the problem that the Arizona law goes farther than federal immigration policy?

I don’t think so. I think the Arizona lawmakers were pretty careful to grasp the law and avoid obvious conflict with federal law. But even if there’s no conflict, the government can still win under a theory called “field preemption.” The feds are likely to argue that regardless of the law’s specifics, Arizona has no business in this “field,” it simply has no business regulating immigration in any way.

Another key case is a 1941 case called Hines v. Davidowitz, in which the Supreme Court struck down a Pennsylvania law on preemption grounds despite the fact that the law didn’t conflict with federal law at all.

What section of the Constitution gives Congress the right to govern immigration?

It’s interesting; nothing in the Constitution says anything about immigration. But it goes back to the late 19th century, in which the power became vested in the general foreign affairs power. Part of the theory is that if you have a state offending a foreign country, it could lead to serious diplomatic disputes.

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True. So how do you see this case resolving?

It’s very hard to say. I really could see it going either way.