Immigration and Preemption: Some Principles

Today’s oral argument in Arizona v. U.S., arising over Arizona’s immigration law (“S.B. 1070”), provides occasion to address what I believe to be a fateful confusion in federal preemption law. I’ll keep mum about the merits and nuances of this particular (and to my mind quite difficult) case; instead, a few remarks on the broader conceptual and institutional questions that lurk behind it:

S.B. 1070 features several provisions to reduce illegal immigration through a policy of “attrition.” The provisions don’t directly contravene federal immigration law, but they are tougher. Should we then say that S.B. 1070 “conflicts” with and is therefore preempted by federal (statutory) law and its objectives, as the government insists? Or should we say something along these lines: “The feds are against illegal immigration, and they have statutes and policies to curb it. Arizona, too, is against illegal immigration, except more so. Thus, far from conflicting with federal law, S.B. 1070 complements it. Besides, the feds have completely fallen down on the job of enforcing their own laws. Our need to enforce our own laws is dire, and it’s hard to see how it can conflict with a virtually non-existent federal scheme and policy.”

This is a gross oversimplification of the arguments, but it helps to settle intuitions on preemption and, in particular, on the basic proposition against a robust preemption doctrine. That proposition is that a state’s doing “more,” in furtherance of federal objectives, cannot (without more) create a conflict with federal law—unless, of course, federal law specifically prohibits states from doing the “more” at issue.

To paraphrase Ara Parseghian (as quoted in Rudy): we just summed up our entire sorry preemption law in one sentence.

Against the backdrop of the feds’ feckless immigration policy, it’s easy to sympathize with Arizona’s position in this case—but not with anti-preemption crowd’s general  “we’re here to help the feds” proposition. That’s what state AGs say when they gang up on federal chartered and supervised financial institutions. It’s what trial lawyers say when they file “failure to warn” cases over drugs and devices that are sold and used in conformity with federally approved (actually, mandated) warning labels. It’s what California says when it sets global warming policies for the nation. And in each case, the claim is pernicious nonsense.

Every regulatory statute reflects an implicit balance and interest group compromise: we (Congress) decided to regulate this far, and no further. Thus, unless a federal statute explicitly provides otherwise, it ought to be read as preempting any deviating state law. Very roughly, this was the framework prior to the New Deal. Among its many attractions is what one could call regulatory neutrality: states may not depart from the federal compromise either way. Without that baseline, preemption law creates a profound pro-regulatory bias and a one-way ratchet. State laws below the federal level of stringency, while not strictly preempted, are effectively a dead letter because private parties must comply with the federal standard in any event. Stricter state standards, in contrast, are allowed to stand and to govern private conduct. (The same reasoning applies, mutatis mutandis, to claims regarding supposedly inadequate federal enforcement levels.) The only premise that supports a preemption regime of that description is that more regulation is ipso facto better regulation.

Alas, since the New Deal, preemption law has rested on precisely that premise.  Frankfurter & Co created this regime to ensure that (1) no one would ever go unregulated and (2) firms in interstate commerce would be governed by the rules of the strictest among one-plus-fifty regulators. Over time, the statist purpose became clouded by a lot of “states’ rights” and “textualism” dust, but it remains unmistakable.

To state the pre-/post-New Deal contrast differently: pre-New Deal preemption law operated against a baseline of exclusive federal (and state) powers. Congress can depart from that baseline explicitly or by implication, but the baseline is “one problem, one sovereign.” Post-New Deal preemption law starts with a presumption of concurrent state and federal powers: let regulators descend in swarms, and let’s hear it for “cooperative federalism” (unless Congress bestirs itself to break the mold).

In this conflict of visions, I take my stand with Daniel Webster. He denounced the very idea of a general concurrent power in the states as “insidious and dangerous” and, in his Gibbons argument, had this to say (Gibbons v. Ogden, 22 U.S. 1, 17–18 (1824)):

The States may legislate, it is said, wherever Congress has not made a plenary exercise of its power. But who is to judge whether Congress has made this plenary exercise of power? Congress has acted on this power; it has done all that it deemed wise; and are the States now to do whatever Congress has left undone? Congress makes such rules as, in its judgment, the case requires; and those rules, whatever they are, constitute the system.

All useful regulation does not consist in restraint; and that which Congress sees fit to leave free, is a part of its regulation, as much as the rest.

Bingo. Jackpot. Thank you, Counselor.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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Comments

  1. Devin says

    In some sense I feel this has to do with a the corruption of the enumerated powers, and the purposes for those powers. If the federal government was only focused on external forces and things that cross state lines, there wouldn’t be a conflict. Who’s to say that the federal government has the power to tell employers that they are not allowed entering into commerce from one person to another within the same state? Which of the enumerated powers does that belong under? Yes congress has the power to define a uniform rule of naturalization, to say who is and who is not a citizen. And it has the power to arrest for the crime of entering illegally into the country. But that is a crime that didn’t occur inside a state, but at the edge of the states, at the border. Then it would be fully within the power of the state to do as it wishes in this case. “one problem, one sovereign”, and that sovereign is the state.

  2. says

    , you could argue that the South at the time was not democratic by elinudcxg voting rights of minorities through poll taxes and intimidation. In fact a minority of white bigots controlled the politics. In addition wealthy elite have always used race, religion, and other divisive issues to manipulate workers to fight against each other to keep wages low or to simply maintain their power. Aristotle famously said to keep slaves of different nationalities so they couldn’t speak with each other and start a revolt.Anyways, I attended a meeting with this group last February. They made a very strong case that if you simply get corporations out of politics our government can begin to work for people again. They promote local government because they would less likely be controlled by outside forces and therefore more willing to meet local needs. We really need to build more local, resilient economies that can feed, clothe, and provide basic needs so that we are not dependant on stuff being shipped across the country or around the world. The era of cheap oil and transportation is coming to a close which will necessitate more local control. Beside the idea of strong local government is also important to establish the lost sense of community and local character. I’m a progressive and believe the Federal government has an appropriate place to get big things done that local communities can’t do. But if we can’t get corporation out of our politics all other progressive causes will be blunted. We must all come together as sovereign citizens to take back control of our nation. That means joining forces with far right libertarians and far left liberals and everyone in between to fight big money. Then we can debate with our conservative friends on how best to govern. Cheers,Christian HenryPoulsbo, Washington

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