More on AZ Law Takedown (Hines Redux)
I’ve got some bigger picture thoughts (cautionary, from an alien rights perspective) over at the NY Times Room for Debate. As for Judge Bolton’s reasoning in her order invalidating key provisions of the law, it is striking how much work Hines v. Davidowitz (1941) does as the centerpiece precedent.
In some ways it’s a good fit. Hines also involved a (Pennsylvania) state law which purported to mirror federal alien registration requirements. The Court found struck it down notwithstanding that consistency, which makes Hines a good answer the argument of SB 1070 proponents that consistency with federal law should insulate the measure from preemption. Hines also supports Bolton’s focus on SB 1070’s effect on legal aliens (an “impermissible burden” on them) — the PA law at issue in Hines applied to all aliens, and the Court there did note the discriminatory aspects of the legislation.
In other ways the reliance on Hines is a stretch. Justice Black’s opinion is all about the dangers of state activity implicating foreign relations. “Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference. . . . 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.” Hines didn’t show solicitude for legal aliens except as subjects of other sovereigns.
Bolton’s opinion, by contrast, connects the dots to foreign relations in only a cursory way. I wonder why she didn’t do more on this score: there is ample evidence of Mexico’s unhappiness with the Arizona law. Perhaps because it just doesn’t seem so imperative? Although Hines didn’t highlight the contemporary context, 1941 was obviously a sensitive moment, one in which any state meddling could have had disastrous consequences. Any interference with our relations to Mexico are trivial in comparison.
Yesterday’s decision reads more like a rights decision than a federalism one. In this respect it resonates with the Sugarman line of equal protection cases applying heightened scrutiny to state laws discriminating against aliens. As such, the reasoning is pretty weak, in the absence of any facial discrimination in SB 1070 against legal immigrants. The preliminary injunction nonetheless will certainly stand; Bolton’s opinion is within the margin of error for an interlocutory appeal. I would expect the decision to stand on full review as well.