The End of Federal Foreign Affairs Exclusivity?

I don’t have much to add to Peter’s pithy and insightful take on the Supreme Court’s oral argument today in Arizona v. United States.  I just wanted to emphasize the difficulty the federal government had in advancing, even rhetorically, its view that the federal government has an “exclusive” role in the management of immigration policy and foreign affairs.  Solicitor General made this argument several times, including here:

GENERAL VERRILLI: Well, what I think they are going to do in Arizona is something quite extraordinary, that has significant real and practical foreign relations effects. And that’s the problem, and it’s the reason why this power needs to be vested exclusively in the Federal government.

What they are going to do is engage, effectively, in mass incarceration, because the obligation under section 2(H), of course, is not merely state, and we don’t like it. They are sorts of problems. So we’re going to help Federal law. We’re not going to do anything to enforce section 2 to the fullest possible extent at the — at the risk of civil fine, but to enforce Federal immigration law, which is what they claim they are doing in section 3 and in section 5. And so — so, you’re going to have a  situation of mass incarceration of people who are unlawfully present. That is going to raise — poses a  very serious risk of raising significant foreign  relations problems.

And these problems are real. It is the problem of reciprocal treatment of the United States citizens in other countries.

JUSTICE KENNEDY: So you’re saying the government has a legitimate interest in not enforcing its laws?

I just don’t think, taken as a whole, that the Court showed any deep concern with the threat to foreign affairs or to the federal government’s control of foreign affairs.  The Court was focused like a laser beam on the language of the statute and how it would work in practice in tandem with existing federal law.  Broad claims that Arizona was interfering with foreign affairs, and that foreign affairs are exclusively vested in the federal government, were pretty much ignored and brushed aside.

In our book Taming Globalization, John Yoo and I argue against a broad foreign affairs preemption power, especially a dormant preemptive power.  While we accept that the federal government can preempt most state activities, we would require some explicit statutory intent to do so, or an unmistakeable executive policy or agreement.  My bet is that, even if Arizona “loses”, an exclusive federal foreign affairs power will not emerge in this case.