In response to a lawsuit by the Obama Justice Department, a federal judge appointed by Bill Clinton has enjoined parts of Arizona’s new law cracking down on illegal immigrants, finding them to be “preempted” by federal law. While most parts of Arizona’s law are unwise (like its citizen suit provision), the claim that it violates federal law is just wrong, as I explained earlier. Federal law prohibits illegal immigration, not state assistance in enforcing bans on illegal immigration, or police queries about arrestees’ immigration status.
Ironically, the Obama administration’s entire lawsuit rests on a legal argument it earlier denounced. Obama previously depicted federal preemption of state law as a recent right-wing plot (even though the Supreme Court has recognized the doctrine of preemption for 186 years). Trial lawyers hate preemption because it sometimes blocks lawsuits against businesses over products found to be safe by federal regulators, and Obama issued a memorandum denouncing it as contrary to legal tradition.
But when the Obama administration wanted to challenge Arizona’s law, it suddenly relied upon this very argument it earlier rejected (preemption) to challenge Arizona’s law. Never mind that Arizona’s law is not, in fact, preempted by federal law, as Supreme Court rulings like De Canas v. Bica illustrate.
Even as the Obama administration selectively takes an incredibly broad view of preemption in the immigration context, to claim that Arizona’s law is preempted by federal law, the administration turns a blind eye to California municipal sanctions against Arizona businesses and merchants. These California governmental “boycotts” are preempted by the Constitution’s Dormant Commerce Clause and violate the Article IV Privileges and Immunities Clause, as I explained earlier.
It is strange that the Obama administration is more offended by Arizona’s “discrimination” against illegal immigrants than California’s discrimination against fellow Americans.
As Justice Cardozo observed in Baldwin v. G.A.F. Seelig, Inc. (1935), “the Constitution . . . was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.”
In cases like United Building and Construction Trades Council v. Mayor of Camden (1984), the Supreme Court has said that the Privileges and Immunities clause of Article IV of the Constitution generally forbids states from discriminating against the residents of other states in things like employment on public works. (Aliens, by contrast, are not entitled to the protections of this provision.)
The dormant-commerce clause bans state discrimination against businesses and commerce from other states (see, e.g., Baldwin v. G.A.F. Seelig, Inc. (1935)), and although there is a limited exception to that ban for government contracts, that exception does not allow state or local governments to use contracts to promote regulatory aims or meddle inside another state, as opposed to merely promoting a state’s own economic development (see, e.g., Wisconsin v. Gould (1986), in which the Supreme Court barred Wisconsin from excluding a a Delaware corporation from state contracts because of its record of violating the National Labor Relations Act).