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

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.