Court Guts SB 1070 (Immigration Still Part of Foreign Relations)

by Peter Spiro

As predicted here, the Supreme Court delivered a split decision today in the Arizona immigration case.  But to the extent that it’s a partial victory for supporters of SB 1070, it’s only a nominal one.  Justice Kennedy’s majority opinion broadly validates federal power over immigration, leaving a very confined space for state activity.

Kennedy’s opinion situates immigration law as part of foreign relations.

[The federal power over immigration] rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936)).

The federal power to determine immigration policy is well settled. Immigration policy can affect trade, invest­ment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici Curiae; see also Harisiades v. Shaughnessy, 342 U. S. 580, 588–589 (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae 24–30.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 sepa­rate States. See Chy Lung v. Freeman, 92 U. S. 275, 279– 280 (1876); see also The Federalist No. 3, p. 39 (C. Rossiter ed. 2003) (J. Jay) (observing that federal power would be necessary in part because “bordering States . . . under the impulse of sudden irritation, and a quick sense of appar­ent interest or injury” might take action that would un­ dermine foreign relations). This Court has reaffirmed that “[o]ne of the most important and delicate of all interna­tional relationships . . . has to do with the protection of the just rights of a country’s own nationals when those na­tionals are in another country.”  Hines v. Davidowitz, 312 U. S. 52, 64 (1941).

Bonus “one voice” line at page 18 of the slip opinion.

I have more to say about the decision over at Scotusblog. I’m not surprised by the result, but I am surprised by the tone. I think the decision will take a lot of wind out of restrictionist sails at the state level. The unintended consequence might be redoubled efforts at the federal level to toughen up on immigration.

4 Responses

  1. Does this decision and Scalia’s comments regarding Obama’s “Executive Order” regarding children of illegial immegrants have any effect on the President’s decision now or in the future?

    What recources does the Congress have if they disagree with President Obama’s recent decision on immegration, other than changing the law?  Can the challenge Obama’s decision in Court?  When an Executive Order is being challneged, can the issue be taken directly to the Supreme Court, or does it have to go through the lower courts first?  Facinating ruling today!!

  2. The author shows his overall leftist bias in his article, here, from the headline on down to the end. The reader sees thru it all, by the powers of good, objective logic.

  3. “The reader sees thru it all, by the powers of good, objective logic.”

    Good, objective logic that T doesn’t bother to share with us benighted souls…

  4. Just up over at
    US v. Arizona meet Medellin: Section 2(b) meet Consular Notification
    Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
    “It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.” U.S. v. Arizona 567 U. S. ____ (2012)
    “The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them.”  Medellin v. Texas 552 U.S. 491 (2008)
    With today’s result in U.S. v. Arizona permitting Section 2(B) of S.B. 1070 to survive, Arizona state officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the Federal Government.  Whether this provision will survive other ongoing challenges remains an open question.  In the meantime, it might be useful that those state officers making those checks might add something to that process.  When the state officer finds the individual is not an American citizen – whether a legal or illegal alien – in appropriate cirumstances the officer might be required to inform the alien of their right to  speak to the consul of their country pursuant to the Vienna Convention on Consular Relations.
    After all, since the Medellin decision of four years ago and the execution of Mr. Medellin, Congress has taken no action to put in place implementing legislation of a kind that would assure the meaningful application of the Vienna Convention on Consular Relations in the states.  In the absence of Congressional legislation and given the Supreme Court striking down the Presidential efforts to implement the Avena decision of the International Court of Justice as improper interference with the state courts, U.S. v. Arizona may have an unintended consequence of suggesting an avenue to protect alien consular rights at the earliest point at which Arizona becomes aware of the nationality of a person that its officers have stopped, detained, or arrested.  If state officers are permitted to make the inquiry, it would seem that if that inquiry returns information that the person is  not a U.S. citizen, then as the process moves into the zone foreseen in Article 36(1)(b) of the Vienna Convention on Consular Relations (“a [non-U.S.] national…is arrested or committed to prison or to custody pending trial or is detained in any other manner”) the opportunity to inform that same alien of these rights would appear to be a modest additional incident of that power to inquire.
    Beyond the kind of training or materials that is done by the State Department for local police forces, the hook of this inquiry power might be made to carry with it the responsibility to make the alien aware of rights that the United States has agreed said alien in fact has.  Moreover, this type of effort might help to reduce tension between the United States and other nations about the manner in which we implement these international obligations.  While not directly implementing for the 51 Mexican nationals concerned in the Avena decision, it might certainly reduce the likelihood of such a lack of notice of consular rights happening in the future.  This effort might help reassure foreign states concerned about the status, safety, and security  of their nationals, that these protections for aliens are being routinized in the American federalism.  This routinization would encourage reciprocity and the protection of Americans abroad unfortunately caught in similar circumstances by treaty partners.
    And, if said Section 2(B) is considered unconstitutional in some subsequent challenges, the practice of informing persons can become a habit that reminds the local police and the state courts that the United States has accepted these international law obligations and international law forms part of our law.  Who knows, even if subsequently the right to inquire under Section 2(B) is struck down, maybe the practice at informing some alien suspects of the Consular Rights might become a modest addition to Miranda warnings for all suspects with no apparent cost to the United States citizens who would hear them but of importance to the foreigners who have been granted those protections.

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