The Hidden “Unitary Executive” Issue in the Arizona Immigration Case
Last week, the Supreme Court agreed to decide whether a controversial Arizona immigration law is valid. Commentators have noted that by adding the Arizona case to a docket that already includes the challenges to the 2010 federal health care law and a Texas redistricting case, the Justices have ensured that the current Supreme Court Term will be one of the most important in years.
What is more, the current Term will conclude just as the Presidential general election campaign is heating up. And each of the three sets of issues these cases raise is at heart a struggle over the proper scope of federal and state power—one of the central issues currently dividing the two major parties.
The commentators who have emphasized the political stakes and the federalism dimension of the Court’s current docket are not wrong. But it nonetheless oversimplifies matters to treat these cases as all of a piece. As I shall explain in this column, the Arizona case, in particular, is at least as much about how to allocate power between Congress and the President as it is about the balance of power between the states and the federal government.
The Arizona Case
In recent years, the federal government has stepped up its border patrols and other efforts to enforce the nation’s immigration laws. Partly as a consequence of this stricter enforcement and partly due to fewer job opportunities during the current economic downturn, illegal immigration has been cut dramatically from its recent peaks. Nonetheless, voters and legislators in a number of states have recently enacted laws that are premised on the view that their states are being flooded with undocumented immigrants that the federal government either cannot or will not intercept. Arizona has been a pioneer in enacting such laws.
At issue in the current case is S.B. 1070, an Arizona law enacted in 2010 that both instructs state and local officials to investigate the status of certain persons suspected of being undocumented immigrants, and imposes state penalties on such undocumented immigrants that go beyond the penalties prescribed by federal law. The federal government sued to enjoin enforcement of S.B. 1070, winning in both the federal district court and the U.S. Court of Appeals for the Ninth Circuit.
Last week, the Supreme Court accepted Arizona’s invitation to review the Ninth Circuit ruling in United States v. Arizona, despite the Solicitor General’s argument that such review was premature: With no division of authority on the underlying issues, the federal government had urged the Court to wait to see how other courts handled similar cases, including those emanating from Alabama. But the Justices forged ahead nonetheless.
Media descriptions of the Arizona case have correctly noted that it presents an issue of federalism, but they have often been imprecise in explaining just what that issue is. Importantly, Arizona v. United States (as the case is captioned in the Supreme Court) does not directly present an issue of constitutional federalism.
Everyone acknowledges that the Constitution assigns primacy to the federal government in matters of immigration. If Congress wanted to, it could enact legislation that completely displaced the authority of states to enact laws governing immigration, pursuant to Article I, Section 8, Clause 4, which gives Congress the power “To establish an uniform Rule of Naturalization.” Insofar as Congress regards state efforts to supplement federal immigration enforcement as undermining a uniform federal policy, Congress undoubtedly has the authority to displace—or in legal jargon, to “preempt”—state law.
The question in the Arizona case is not whether Congress can preempt state immigration law. The question is whether Congress did preempt Arizona’s law. The Ninth Circuit thought that it did, but there is enough wiggle room in the various relevant provisions of the federal Immigration and Nationality Act to support a contrary conclusion as well.
The Politics of Preemption
Should Arizona’s S.B. 1070 be deemed welcome assistance to the federal government or meddlesome interference? The eight Justices who will consider that question will no doubt try their best to parse the key language of the federal and state laws. (Only eight will participate because Justice Kagan has recused herself.) But without doubting the Justices’ good faith, we can still expect them to be influenced by their values.
A constitutional naïf might think that the conservatives, who tend to favor states’ rights, would be sympathetic to Arizona’s claims, while the liberals would be more sympathetic to the federal government. The naïf would likely be correct, but not for the reason he thinks.
It turns out that, in preemption cases, the Justices’ ideological druthers tend to flip, with liberals favoring narrow preemption (and thus broader states’ rights) and conservatives favoring broad preemption (and thus narrower states’ rights). Why the inversion? Because conservatives tend to side with business interests, while liberals tend to side with consumer groups, and the typical preemption case involves the claim by business that a relatively lax federal law displaces some tougher state regulation.
However, as I observed in an earlier column on this site, immigration preemption cases are atypical. State laws cracking down on undocumented immigrants do not appeal to liberals, while such “tough-on-immigration” attitudes may be sufficiently appealing to conservatives to reactivate their sympathy for states’ rights, which otherwise would lie dormant in preemption cases. Other things being equal, one would expect the Court’s conservative wing to break for Arizona, and its more liberal bloc to side with the United States.
The Unitary Executive Twist
There is a catch, though. The Arizona case does not merely pit a state against the federal government. It also pits Congress against the President, and thus implicates the distinct constitutional doctrine of separation of powers.
Arizona argues that S.B. 1070 is not preempted because federal law invites the very sort of assistance from state and local officials that S.B. 1070 authorizes. But this argument is at least a bit peculiar, given that the federal Justice Department says that it does not want Arizona’s help. Under the circumstances, how can Arizona plausibly characterize S.B. 1070 as anything other than interference with federal immigration policy?
The answer is that the federal government is not an “it” but a “they.” The federal executive branch does not want Arizona’s help, but, as Arizona would read the federal statutes, Congress, in enacting those statutes, demonstrated that it did want Arizona to help.
Interestingly, both sides appear to assume that Congress can force the federal executive branch to accept state and local assistance, even if the federal executive does not want that assistance. The Obama Justice Department argues, however, that in enacting the relevant statutory provisions, Congress did not, in fact, require the executive branch to accept the sort of help that Arizona seeks to provide through S.B. 1070.
But is the underlying assumption correct? Can Congress really force the federal executive to accept state assistance that the executive does not want? At least one Supreme Court case suggests that the answer is no.
The Relevance of a 1997 Gun Control Case
The Brady Handgun Violence Prevention Act required the establishment of a national computer system for performing background checks on prospective handgun buyers, but for a few years before that system was up and running, it required that state and local law enforcement officials perform the background checks manually. That interim provision of the Act was challenged, and the Supreme Court, in the 1997 case of Printz v. United States, struck it down. Congress, the Court said, may not “commandeer” unwilling state and local officials into executing federal law.
The majority’s chief line of attack in the Printz case was rooted in the states’ right not to be made into federal puppets. But the Court also invoked a second factor. Part III(B) of Justice Scalia’s majority opinion in Printz explained that by transferring the power to enforce the Brady Act’s background check provision from the President—who has the constitutional duty to “take Care that the Laws be faithfully executed”—to thousands of state and local officials, the law undermined “the separation and equilibration of powers between the three branches of the Federal Government.”
What is true for a federal gun control law would also appear to be true for a federal immigration law. To be sure, there is a potentially important difference between the Printz case and the Arizona immigration case. In Printz, state and local officials were required by federal law to assist in federal law enforcement, whereas Arizona voluntarily undertook to aid the federal government. But that distinction is only relevant to the federalism question of whether the law in question impermissibly overrides state sovereignty. It does not appear relevant to the distinct separation of powers issue identified in the Printz case: If state or local enforcement of federal law impermissibly undermines what the Printz case called “unity in the Federal Executive,” it does so regardless of whether that state or local enforcement is provided involuntarily (as in Printz itself) or voluntarily (as in the Arizona immigration case).
So, should the Supreme Court rule that Congress cannot invite state and local enforcement of federal law over the objection of the federal executive? Were it up to me, I would say no. But I am a critic of the “unitary executive” theory that underlies the separation of powers portion of the Printz decision. And obviously, the decision is not up to me.
Three of the Justices who were in the majority in Printz—Scalia, Kennedy, and Thomas—still sit on the Court. Are they prepared to rule that Congress may never enlist state and local law enforcement assistance that is unwanted by the federal executive in the Arizona immigration case? Probably not, in part because the argument was not presented in the lower courts.
Yet there is a familiar principle that courts should try to construe statutes in such a way as to avoid the necessity of resolving difficult constitutional questions, if possible. For the Justices who accept the unitary executive theory articulated in the Printz case, the interpretation of the federal statutes advocated by Arizona would create just such a difficult constitutional question. Accordingly, they should read federal immigration law as leaving to the federal executive the decision whether to accept or reject state offers of “assistance” in immigration law enforcement. Thus, because Arizona’s help is clearly unwanted, the conservative Justices who accept the unitary executive theory have a special reason to rule against Arizona.