More on AZ Law Takedown (Hines Redux)

by Peter Spiro

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.

7 Responses

  1. The rights perspective was how the law would have most interfered with federal immigration prerogatives, namely not permitting arbitrary detention of those that would not be held in detention but for sb1070.

    It’s not clear how it is weak in this context, if you could be so kind as to explain.

  2. Bryan, My point is that in the Hines analysis, the harm to aliens is only consequential to the extent it offends foreign sovereigns and upsets the balance of foreign relations.  The DCt here emphasized the discrimination but not its foreign relations consequences.

  3. Professor Spiro,

    Thanks for the explanation.

  4. I completely agree that basing it on Hines was a stretch, especially because of the basis of the case (requiring registration, carrying a card, and then penalties based upon not being registered or carrying that card), however it is a poor basis to prove pre-emption since there is also a 1996 law that effectively deputized local law enforcement to deal with illegal immigrants.

    Furthermore, saying that SB1070 would place more burden upon federal agencies is flawed because the federal agencies would have to run searches and file paperwork for the illegal immigrants either way, i.e. whether local law enforcement kept them or if they were turned over to the feds. In fact, I should venture to think it would save the feds time by not having to take custody of the illegal immigrants and simply set up a quick system networked to the local law enforcement’s database in order to run a search or file a new illegal immigrant.

    While the foreign relations aspect is in fact real, Obama’s pandering to the respective countries presidents is, in my opinion, akin to pleasing a whiny child. Our relations with Mexico matter very little since they largely depend on our money and resources to solve their problems anyway. As it is, there are commonly situations where federales will use their armored vehicles to punch a hole in our border, allow the drug cartels past and then hold off border patrol while the cartels escape into our country until the federales can retreat back across the border, we don’t hear about this for the exact same reason, we fear it would impact our foreign relations, even though Mexican government authorities are blatantly violating international law.

    While I do believe Bolton’s ruling erred on the side of caution until the case could be further reviewed, I think the judge also needs to consider what is actually happening on the border in addition to the constitutional validity of the law. I should also state that I believe some parts of the law to be poorly worded, so this should also provide the Arizona legislature a chance to edit and rewrite it, preferably before the appellate hearing.

  5. It would further burden ICE; sb1070 requires(d) local police to enforce to enforce immigration law as much as humanly possible. Thus, there would be more people being detained(because remember, SB1070 created a separate, state crime for unlawful presence and once a “lawful stop” occurred, many individuals who could not have been detained for extended periods of time  before would be), and ICE would have arizona police calling them at all hours of the day/evening, etc.

  6. I’d also give more credit to Bolton, overall. She is navigating rather uncharted waters, given how unprecedented SB1070 is. Perhaps there will be new SCOTUS precedent that emerges from it.

Trackbacks and Pingbacks

  1. […] Mark Levin has passionately supported the Arizona law in this case, and he writes a critical analysis of the decision here. Heather Mac Donald is critical here, and Andy McCarthy here. Peter Spiro suggests that the judge’s reliance on Hines is somewhat of a stretch. […]