Why “One Voice” Shouldn’t Trump Arizona’s (Or, Why Madeleine Albright is Wrong About SB 1070)

I’ve got an op-ed in the NY Times today on the SB 1070 case, the title of which might have been “Let Arizona Law Die a Natural Death.”  In 750 words there wasn’t room to engage the key doctrinal foreign relations elements of the case.  This is central to the Obama Administration’s case against the law: Immigration inherently implicates foreign relations; foreign relations is constitutionally insulated from interference; SB 1070 unconstitutionally interferes with foreign relations.  The mantra: the nation must “speak with one voice” in the context of foreign relations.

The foreign relations argument is expertly made in an amicus brief submitted by a group of former top foreign policy officials led by Madeleine Albright and William Cohen.  (On the Albright brief are Supreme Court veterans Seth Waxman and Paul Wolfson. This is a lopsided case in terms of the quality of briefs, those opposed to SB 1070 completely outclassing those in support.)  In proceedings before the district court, then-Deputy Secretary of State James Steinberg also filed this declaration laying out the case that SB 1070 damages foreign policy.

No doubt immigration inherently involves relations with other countries.  There’s also no question that SB 1070 has several countries — notably Mexico — very unhappy.  But that doesn’t inexorably lead to the conclusion that SB 1070 interferes with national foreign relations.

The Albright brief and Steinberg declaration assert three types of foreign policy damage: 1) other countries will undertake reciprocal retaliation against US nationals in their jurisdictions, 2) SB1070 undermines US efforts to advance human rights in multilateral fora, and 3) the Arizona measure “undermines the willingness of foreign states to engage with the United States to advance US foreign policy goals.”

The first makes sense in theory, but is highly unlikely in this context.  Neither Albright nor Steinberg can supply examples on the ground.  There aren’t a lot of US citizens who are illegal immigrants in other countries, so direct tit-for-tat (think Mexico adopting its own version of SB1070) doesn’t make a lot of sense.  Nor are other states going to risk US business and tourist dollars as part of this cause by harassing US visitors in some non-specific way.

The second harm is more plausible.  International human rights groups have been all over the state immigration laws, and there have been critical pronouncements out of the UN and OAS.  But the US takes a pretty marginal hit on this, one that it seems willing to take in a number of other contexts.

The last would be most persuasive, if only it were true. The best Jim Steinberg can do on this: “The Mexican Senate stated it would postpone review of a U.S.-Mexico agreement on emergency management cooperation to address natural disasters and accidents signed on October 23, 2008 because of the new Arizona law.”  I don’t think it’s demeaning of emergency management to say that’s not exactly at the center of our bilateral relations with Mexico.  Steinberg also noted the cancellation of a meeting of border state governors in 2010, but that isn’t really about national foreign relations anyway.

The bottom line: SB 1070 hasn’t really hurt US foreign policy, at least not enough to justify departing from our usual rules of federalism.  (Remember: If it were really a problem, Congress could always make SB 1070 go away through express legislative preemption.)  This is ultimately because other countries know that Arizona is going it alone on this.  At a joint press conference in May 2010, Mexican President Felipe Calderon registered his opposition to SB1070 (as Steinberg and Albright note), but then he and Obama presented a united front in that opposition, almost as if Arizona were a third sovereign against which the two heads of state were aligned (and more or less equally powerless to influence).  In these circumstances, it makes no sense for Mexico to take out any offense against the USG or the US as a whole.  That takes the rug out from under foreign affairs preemption.

It’s a far cry from Hines v. Davidowitz, the 1941 decision which figured centrally in the 9th Circuit’s decision below.  Hines struck down a Pennsylvania alien registration regime tracking federal law.  Arizona’s law is also (at least ostensibly) consistent with federal law, as proponents are quick to argue.  So Hines supplies a good response: consistency with federal law doesn’t insulate a state immigration measure from constitutional attack.

I don’t think Hines is going to stick here.  The obvious way to distinguish it: that was 1941, this is 2012.  In 1941, you couldn’t have the states messing with anything, most especially with would-be enemy alien German nationals.  It was way-too hair-trigger a context in which to tolerate the amateur foreign policy backgrounds of state officials.

Today, we may still have foreign-policy amateurs among state officials (AZ governor Jan Brewer likely at the head of the line).  But we’re hardly on the road to WWIII.  I think there a good chance that the Court is going to strike down SB1070’s registration provision, under which aliens who fail to comply with federal registration requirements are subject to penalties under state law, but I doubt it will rely on Hines, which is getting its last hurrah in the run-up (the Court is much more likely to take up NYU’s Nancy Morawetz’s inventive tack on that in her brief for the Leadership Conference on Civil and Human Rights here).

Finally, it’s interesting that Mexico (its offense notwithstanding) is not among those filing amicus briefs in favor of the Administration’s case.  The GOM knows how to put fancy US lawyers to work; it submitted briefs in proceedings before both the district court and the 9th Circuit.  I suspect it stayed out because of the atmospherics.  SB1070 supporters have tried to tar foreign affairs preemption as a “heckler’s veto“, a foreign heckler no less.  To the extent it is, better to have the heckler out of the room.  I don’t think Mexico’s non-participation will make any difference, but it was almost surely a conscious choice.