Balance of Power at Stake in Arizona Case

The media coverage leading up to today’s Supreme Court argument in United States v. Arizona has focused almost entirely on the issue of illegal immigration. But the most important issue in the case is not immigration policy or even the specifics of whether some or all of Arizona’s immigration law is preempted by federal law. The most profound impact of this case will likely be on the constitutional balance of power between the states and the federal government, an issue that goes back to the nation’s founding and will always be at the heart of any debate about the nature of our democracy, long after the issue of immigration has faded from the headlines.

In a Supreme Court amicus (friend of the court) brief submitted by the Committee for Justice in this case, we remind the Court of what is at stake:

“States have a broad right to protect the public health, safety and welfare of their citizens … [that] should not be superseded by federal acts, unless clearly intended by Congress. Thus, Arizona’s SB 1070 must be upheld if state sovereignty is not to be undermined.”

CFJ Is joined on the brief by co-amici the Center for Constitutional Jurisprudence, the Individual Rights Foundation, Congressmen Ed Royce, Ted Poe and Tom McClintock, and Indiana State Senator Mike Delph. The Congressmen are from states – Texas and California – that have been severely impacted by federal under-enforcement of U.S. immigration law, the very policy that the Obama Administration now argues preempts Arizona’s attempt to enforce U.S. law. State Senator Delph authored a law that addresses the illegal immigration problem in Indiana.

Our brief explains that the Administration “has presented the startling and unsupported argument that the President has unilateral authority to preempt state enactments that may cause conflict with the President’s enforcement priorities” – in this case, the President’s decision not to fully enforce the immigration laws enacted by Congress. To the contrary, the Supreme Court “has consistently held that the Constitution assigns plenary power over immigration policy to Congress, not the President.”

We emphasize that the “Court has maintained a presumption against preemption when analyzing preemption challenges pertaining to an area of law traditionally occupied by the states.” One such area is the states’ protection of public health, safety and welfare, which is precisely what Arizona’s SB 1070 addresses. And to the extent that it addresses immigration policy, the “Arizona law expressly follows congressional policy – and indeed mirrors the provisions of the federal law.”

Regarding the Committee for Justice’s interest in United States v. Arizona, the brief explains that “the system of federalism established by the United States Constitution, including the twin principles of enumerated federal powers and protection of state sovereignty” is central to the rule of law and thus to CFJ’s mission. “Both of these principles will be weakened if the decision below is allowed to stand.”