Immigration and Preemption


Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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8 Responses

  1. Avatar Koz says:

    Irrespective (for now) on the merits, Mark, do you think the feds will win this lawsuit? In particular, did you see Kris Kobach’s recent article in National Review?

    The arguments against the Arizona law are not very persuasive to me. Moreover, Kobach argues that there is already a fair amount of relevant case law on them already, and the precedents are not good for the opposition.

    There’s one line of argument in particular that I’m hoping you’ll comment on. The Administration’s preemption argument is not based on the immigration statutes themselves but the Administration’s political priorities in enforcing them (or not).

    Is that legitimate for you? As a libertarian concerned with the growth of executive power under the GWB (and Obama), it’s quite a horrific extension of power to argue that the political priorities of the federal executive preempt the black letter law of the states. Or at least that’s the way it looks to me.Report

    • Avatar Mark Thompson in reply to Koz says:

      @Koz, I did not see Kobach’s article, and I don’t have the time right now to track it down – do you have a link?

      I also need to find the time to read the Administration’s actual brief, although my understanding (which may well be wrong) is that they have emphasized the statutory and/or Article I preemption arguments over the Executive priority, Article II, argument.

      I’m increasingly convinced that the former argument is wrong and also unlikely to suceed in court (although it’s the 9th Circuit, so it could conceivably obtain some temporary success before the SCOTUS rejects it). The Article II argument strikes me as much more interesting and likely to succeed.

      As for the Executive Power question, I get your point, and it’s a fair one. It’s also an issue I’ve thought about a lot in both this and (especially) other contexts. The idea that enforcement priorities can be so heavily a function of arbitrary political decisons absolutely bothers the hell out of me (although it should be reiterated that the evidence suggests that enforcement has been a higher priority in the Obama administration than in previous administrations). However, this is a problem created primarily by Congress, with its insistence over the last century of issuing ever-more laws and edicts for the President to enforce while more or less retaining its authority over the amount of federal spending at the President’s disposal for said enforcement. It is now impossible for a President to enforce all (or even most) laws equally, which means that the Executive branch has the de facto authority to act as legislator-in-chief. This is a central point underlying my arguments that Congress has abdicated its Constitutional role.

      As a practical matter, though, this means that the Executive has little choice but to engage in a lot of politically-based prioritization, and I don’t think there’s ever been any dispute that Article II gives it (and always has) the exclusive authority to make such decisions. In that sense, then, a prioritization-based argument is not an expansion of executive power; instead it simply demonstrates the extent to which the reach of the federal government has gotten out of hand.

      This is an important contrast to many of the Bush-era executive power expansions (still claimed by the Obama Administration), which often claimed new powers for the government that had not previously existed. Put another way, those expansions were particularly troublesome because they claimed new tools for the government that were not only extra-Constitutional but also lacked strong precedent in case law. The prioritization argument, on the other hand, simply applies long-established (and more or less undisputed) tools to defend a seemingly unpopular use of those tools. Individual states cannot dictate to the federal government what the federal government’s enforcement priorities are.

      That said, whether this is actually a case of a state dictating enforcement priorities to the federal government strikes me as something that is ultimately a question of fact rather than a question of law, and while I may think the facts are likely to turn out in a particular way, I have to acknowledge that there’s not yet been time to develop much evidence on that question one way or another.Report

      • Avatar Koz in reply to Mark Thompson says:

        “It is now impossible for a President to enforce all (or even most) laws equally, which means that the Executive branch has the de facto authority to act as legislator-in-chief. This is a central point underlying my arguments that Congress has abdicated its Constitutional role.”

        I’m with you this far. And from here the point is pretty simple, at least for me. Precisely because the President’s role as legislator-in-chief is a de facto (not de jure) power, it doesn’t have any preemptive authority over state statute. That seems pretty obvious to me, and moreover Kobach cites several cases supporting that very point (relating to immigration law no less).

        The same with this business of “dictating enforcement priorities.” Arizona cannot force ICE to deport anybody. But a state statute (this one or any other) can create facts on the ground
        which by effect cause the feds to reconsider or modify their executive priorities. There’s no way that legitimately be facially invalid. The feds are the feds, they’re not God (yet).

        Do you disagree?Report

        • Avatar Mark Thompson in reply to Koz says:

          @Koz, I think the point is that, although the statute may be facially valid, its as-applied effect (combined with its fairly clear intent) is unconstitutional. I think there’s a very strong argument to be made that states cannot attempt to legislatively force the Executive’s hand in terms of the manner in which it chooses to distribute its limited resources. Whether this legislation actually does so in a meaningful manner remains to be seen.Report

          • Avatar Koz in reply to Mark Thompson says:

            Yeah, I think that argument is really weak but we’ll come back to that later I’m sure.

            For now, let’s note that if the statute is facially valid then it can’t be held to be facially invalid. In which case we have to wait for some poor schmoe to actually get arrested on this statute and litigate based on the facts of that case. Right?Report

  2. Avatar Quinn says:

    If state authority in enforcing immigration (which was made permissible by 287(g), created by Ashcroft under the Bush Admin) is not facially preempted by the Constitution, should that render 287(g) null and void?

    Ashcroft’s 287(g) memo gave states that authority, reversing a 1995 position by the Clinton Admin.

    Conversely, one could argue the decision is left to the administration in power, since Bush reverswd Clinton anf now Obama is reversing Bush.Report