A federal judge has put the infamous Arizona immigration law on hold in various respects pursuant to a lawsuit brought forth by the federal government on pre-emption grounds. The link allows you to read the decision as well as some interesting comments on the general subject. Dilan Esper in particular has some interesting things to say:
What supporters of the law are really arguing is “if the federal government refuses to enforce its own laws, including for sensitive reasons of foreign policy, the Constitution permits the states to step in and override the federal enforcement choices rather than restricting the remedy to impeachment of the President or removal via the electoral process”. And there’s no reason to think that THIS is the case.
Overall, precedent has determined that foreign policy (and immigration as it fits in or by itself) is the role of the federal government, though states can get involved in various cases when it affects local interests or when given discretion to do so by the feds. As bhaal notes, this includes the power of the executive to establish certain policy decisions, decisions that might not be necessarily compelled by federal law. All the same, states cannot on their own choose to follow what they deem the "better" policy:
It’s stunning that anyone is attempting to claim the Supremacy clause only concerns ‘law’ and not ‘policy’. The job of executing the law is given to the President — Art II §2. Without someone putting it into effect a law is just a piece of paper or letters on a screen. If the Supremacy clause did apply only to the law in theory or States were free to interpret it themselves then any State could apply their own interpretation of it, claim it wasn’t being executed properly and do it themselves, making a mockery of any kind of organised system of laws in the country. In order for federalism to actually mean anything there has the federal Executive has to decide how to execute the laws that Congress pass and those laws and decisions have to override inconsistent actions of the States. Reading the Constitution in the way suggested by some results in absurdity. ....
It would be ludicrous if a State could pass a law, as Arizona has done, which appears to conform to federal law, but actually attempts to enforce that law in its own way, with additional penalties, or with skewed priorities.
Dilan provides a great summary of the interests in question:
1. I think that the status quo on immigration is a tacit compromise between business interests, the Mexican government, and Hispanic groups on the one hand and labor unions and nativist groups on the other, and that the Constitution permits such tacit compromises. It in no way dishonors his oath of office; however, if it did, the remedy is to impeach.
2. The President “refuses to enforce US law” all the time, if you mean exercises his discretion (through the Justice Department and administrative agencies) to decline to prosecute or bring enforcement actions against people or entities who violate it. Again, though, if in a particular case this seems improper, the remedy is impeachment. [Still, not bloody likely to occur.]
3. I don’t think letting illegal immigrants stay in the country in any way makes the US less sovereign. What sovereign is challenging us over any significant amount of our territory? What people don’t recognize the US as sovereign? What sovereign immunity has the US lost? This is overheated political rhetoric from anti-immigrant conservatives. Plenty of countries (1) have illegal immigration problems and (2) retain sovereignty.
4. As I said, Mexico obviously isn’t going to invade. But Mexican cooperation is crucial on several foreign policy issues, including terrorism, drug trafficking, free trade, hemispheric cooperation, and, yes, controlling migrant flows. If the President determines that the best way to secure such cooperation is not to be draconian in enforcement of immigration law, that is precisely the type of foreign policy judgment that it is his right to make. The Constitution doesn’t grant the 50 states the power to make 50 junior foreign policies that conflict with Presidential determinations, or to blithely declare that whatever actions they take that piss a neighbor off actually have no effect on foreign policy.
There remains some debate over the plenary power given to the federal government over the issue of immigration, but at least in this context, I think the Commerce Clause is a primary source. The ruling of Heart of Atlanta Motel, Inc. v. United States, in particular, aspects of Justice Black's concurrence, provides some useful information in this context. I will provide some excerpts that show the breadth of the power, the rightful control by the feds when the matter is beyond the concern of a single state and how a system as a whole justifies a policy even if looking at a few stray individual cases might suggest differently. Some citations are removed:
It requires no novel or strained interpretation of the Commerce Clause to sustain Title II as applied in either of these cases. At least since Gibbons v. Ogden, decided in 1824 in an opinion by Chief Justice John Marshall, it has been uniformly accepted that the power of Congress to regulate commerce among the States is plenary, "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Nor is "Commerce" as used in the Commerce Clause to be limited to a narrow, technical concept. It includes not only, as Congress has enumerated in the Act, "travel, trade, traffic, commerce, transportation, or communication," but also all other unitary transactions and activities that take place in more States than one. That some parts or segments of such unitary transactions may take place only in one State cannot, of course, take from Congress its plenary power to regulate them in the national interest. The facilities and instrumentalities used to carry on this commerce, such as railroads, truck lines ships, rivers, and even highways, are also subject to congressional regulation so far as is necessary to keep interstate traffic upon fair and equal terms.
Furthermore, it has long been held that the Necessary and Proper Clause, Art. I, § 8, cl. 18, adds to the commerce power of Congress the power to regulate local instrumentalities operating within a single State if their activities burden the flow of commerce among the States. ....
But, in deciding the constitutional power of Congress in cases like the two before us, we do not consider the effect on interstate commerce of only one isolated, individual, local event, without regard to the fact that this single local event, when added to many others of a similar nature, may impose a burden on interstate commerce by reducing its volume or distorting its flow. ....
"The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the General powers of the Government." Gibbons v. Ogden.
The broad use of "commerce," back to the days of CJ Marshall, underlines how immigration fits in, particularly "travel" (another comment cites a case where states were stopped from blocking travel given it burdened commerce) and "trade," including (as Dilan notes) the relation it has to other countries. The fact some stray person might come here to see a baseball game or the like does not remove the fact that regulation of immigrants in this context has a primary effect on commerce. As noted, the fact that "some part" might affect the state itself does not remove the plenary power because the overall scheme affects the nation as a whole. This makes sense since "the external concerns of the nation" reasonably are the concern of the nation, not individual segments therein acting perhaps in competing ways.
Along with the "necessary and proper" clause, also cited by Justice Black, federal regulation of immigration can usually be easily fit in the commerce power, along with other assists such as the treaty power. This is often how it was so regulated in the 19th Century as well. The lawsuit seems on solid ground.*
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* Republicans are having a bit of a disconnect since the judge has received their support in the past. This includes -- how surprising -- selective use of "activism":
"She didn't overturn the law," said Sen. Jon Kyl (R-AZ), the second highest ranking Republican in the Senate. "She said that portions of it -- the bulk of it -- needed to be enjoined because of her view that it was pre-empted by federal law because it created undue additional burdens on the federal government. This judge is not an activist judge. She had to make a decision. She made a decision. I don't happen to agree with it, but she's not an activist." ...
"I don't know if it's so much judicial activism as it is a failure to understand the federal government's responsibility when they don't carry out their responsibility then the states have to do it for themselves as a matter of security," said Sen. John McCain (R-AZ).
Very clarifying. I jest. McCain's statement too. What other federal functions can states do if the federal government (in his opinion) doesn't carry out "their responsibility," I wonder. Let's see. Congress has various enumerated powers. If they don't properly carry them out in a way some state thinks burdens their interests, individual states have the power to step in, even when their actions affect "external concerns of the nation."
Yes, unlike some, I'm glad this guy isn't President.