Summary

During the oral arguments in Arizona v. United States, the challenge to Arizona’s aggressive immigration enforcement law, the Supreme Court’s Justices displayed a keen interest in the tension between state sovereignty and the federal government’s authority to set uniform naturalization and immigration law.

The constitutional objectives of state sovereignty and federal uniformity — and the clash between these objectives — have grown increasingly important in immigration law. Recently, a number of states, notably Arizona and Alabama, have enacted immigration laws that threaten to encourage racial profiling and discrimination by law enforcement officers, landlords, and businesses, as well as result in the unlawful detention of U.S. citizens “suspected” of being undocumented. The states, however, assert that they are merely stepping in to do what the federal government has failed to accomplish—namely, deter and arrest unlawful migrants—and that these “attrition through enforcement” policies mirror federal standards. More broadly, these states argue that our Constitution’s system of federalism preserves an inherent state authority to enforce immigration laws and police their own borders. This spate of aggressive state immigration laws will require the Supreme Court to clarify the federal government’s authority over immigration law, on the one hand, and the powers preserved for the states on the other.

Indeed, the Court is at this moment considering these issues as it crafts its decision, likely to be handed down very soon, in Arizona’s appeal from the injunction against key provisions of Arizona’s “show me your papers” law, SB 1070, issued by a federal district court and upheld by the U.S. Court of Appeals for the Ninth Circuit. The Roberts Court has been ideologically split over the content and contours of immigrants’ rights, as well as the balance of power between the states and the federal government on immigration issues. The Court recently upheld the Legal Arizona Worker’s Act in Chamber of Commerce v. Whiting, with the conservative Justices voting in favor of upholding the Act, and the more liberal Justices dissenting. While Whiting is a relatively narrow ruling based on specific statutory language, conservatives see a broader story emerging.

Kris Kobach, co‐author of the anti‐immigrant laws in Arizona and Alabama, has claimed that, “[a]lthough the Supreme Court’s decision in Whiting did not directly address Arizona’s SB 1070, it greatly boosts the prospects of success not only for that law, but also for immigration‐enforcement bills in a number of states.” In the wake of oral arguments in the SB 1070 case, opponents of “attrition through enforcement” laws are concerned that Kobach may be right.

With the Arizona case, the Court has the opportunity not only to substantially affect the conditions under which immigrants live in the United States, but also to significantly reshape the way principles of federalism and preemption apply in the immigration context. The Constitution’s federal/state balance of power in the context of immigration law is at a crossroads.