The Hidden “Unitary Executive” Issue in the Arizona Immigration Case

Posted in: Immigration Law

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.

Posted in: Immigration Law

6 responses to “The Hidden “Unitary Executive” Issue in the Arizona Immigration Case”

  1. Immigration law hearing is today – Charleston Post Courier - Financial News | Financial News says:

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  2. Dave Francis says:



    Wouldn’t it be a beyond belief if the U.S. government worked for the major
    majority of the American people? Instead they have cultivated a relationship
    with Communist founded (ACLU), American Civil Liberties Union and the (SPLC)
    Southern Poverty Law Center, now being sued for slander, libel and
    defamation by Richard Mack, former sheriff of Graham County, Arizona, and
    founder of the Constitutional Sheriffs and Peace Officers Association. Even
    Sheriff Joe Arpaio has been verbally assassinated for carrying out his duties.
    The Liberal media has perpetuated this issue, as they cannot disguise their
    heavily pro-illegal alien stance. But the Obama Administration seemed to be
    adverse against laws, which constitute the removal by deportation of illegal
    migrants and immigrants. At a steady pace Obama’s Department of Justice was
    asserting its power earlier the administration to do exactly that, but then the
    president exercised his authority by executive order, without too much notice
    cut back on apprehensions of foreign nationals within the 50 states. 



    It loudly emanates in many American’s mind, that the DOJ is
    pressing Arizona, Alabama, Georgia, Utah, South Carolina and now North Carolina
    to promote camaraderie with the largest blocs of the minority population to
    gain votes. These people are not being singled out, as the Obama politicians
    would like you to think? No (legal) Black American, Hispanic-American or
    permanent resident or any other race is being discriminated against, as they
    are just as venerable to illegal immigration and the chaos that appears with
    it? America’s infrastructure, it’s the energy need; jammed roads and highways
    and these critical costs are detrimental to everybody. OVERPOPULATION IS REAL,
    PRISON SYSTEM IS REAL. Since his advancement of a second term in the Oval
    office, he seems to be genuflecting to the largest block of all, the Hispanic
    population. He has had a failing grade by illegal and legal immigrants, and now
    to curry favor has directed ICE agents not to apprehend illegal aliens who have
    minor criminal records or not at all.



    While patriotic Americans, the TEA PARTY are resolutely against this sudden
    outrageous act, with a stroke of Obama’s pen. The ‘Rule of Law’ handed down to
    us from the 1986 Immigration Control and Reform bill has additionally been
    subverted to gain an advantage with the millions of foreigners who have illegal
    settled here. Today our enforcement laws are a ‘Lost Cause” as the border
    fence is a poor example of what the perimeter is supposed to be on our Southern
    Border. The fence that remains incomplete is still easily skirted by drug
    cartel gangsters and the smuggling of human cargo into our cities. The
    Americans who along the border region, still live in fear of hostile invasion
    of persons, cutting cattle fences, leaving piles of garbage and some who even violate
    their homes. I have heard that the numbers of migrants arrested have dropped,
    but what about the 20 million plus already here, what about the 8 or 9 million
    who have jobs, that if displaced would soon be occupied by citizen and
    permanent residents. Even today the private business sector still believe they
    are above the law, but even the slowdown of immigration audits have a very
    different opinion as business that hire foreigners are on the federal court


    Even so Mayors like Antonio Villaraigosa thinks enforcement laws, don’t apply to them. The
    spendthrifts in Washington has never owned up to the ongoing expenditures for
    the illegal alien assault? Although highly studied by the Heritage Foundation
    projects costs of $113 billion dollars annually. Then the godfather Sanctuary
    city of Los Angeles County Supervisor Michael Antonovich claimed the
    “total cost for illegal immigrants to county taxpayers” was more than
    $1.6 billion in 2010.





    After Newt Gingrich
    speech that people who have been here for 25 years, should be at least be able
    to stay. However this would be an impossible task, as everyone who have
    overstayed are guilty of a—FELONY. To Work, to get a job they are culpable by
    ID theft. They must have fraudulent ID to be hired and further to obtain other
    official documents.



    This Los Angeles Mayor has corresponded with ICE, because he
    doesn’t want to impose ‘Secure Communities, on the gigantic illegal alien
    neighborhoods, especially when Secure Communities roots out the invaders
    through fingerprints sent from local police to ICE.  However, what makes his county or city any
    different from the rest of the country? Then Mayors, chief of police and other
    elected officials also think their exempt, by enacting ordinances to adopt
    Sanctuary Cities. Similar event is occurring in New Haven Connecticut where
    this mindless Major DeStefano wants illegal aliens the right to vote and
    is going to lobby the state legislature to allow the communities immigrants,
    including non-citizens, to vote in local elections. A new Pew Research Center
    poll for 2012 elections has indicated that incensed members of the public are
    going unseat incumbents throwing them out of office. Perhaps while the American
    electorate are in this angry mood they should add Governors, Mayors and city
    Councilors to the list. Head the list with Mayor DeStefano, as Non-citizens
    means illegal immigrants can vote in local elections to assure the mayor
    cannot lose the next election as he almost did in the past election. Add Mayor
    Villaraigosa, as he desires to undermine what little enforcement ICE has the
    authority to impose. Illegal Immigration is riding high with the economy and



    All are connected by the thread of financial instability?
    Americans seem to underestimate the cost for subsidizing illegal parents with
    their children. Smuggled into the United States through international airline
    terminals a immigration official is unable to determine if a women is pregnant
    and coming here to relive Americans of their welfare and public assistance
    programs. This is not confined to just airlines as any entry port along the
    border, is just as open to a female carrying a fetus. It is estimated that
    300.000 women enter America under force deception, solely to gain free health
    care for their unborn child; others simply reach America through the thousands
    of miles of undefended border. The United States has an antiquated system of
    entry, without any means of tracking the individual once inside our borders.
    But however charitable our country is, we just cannot continue on this path.
    Costs are just gargantuan, which is further attenuated by the unsympathetic
    judicial systems that have forced taxpayers to carry the outrageous burden of
    the payee for everything financial? By law taxpayers are extorted of through
    taxes for illegal children to k-12, with free breakfast and lunches.


    Under the present law must pay for food stamps, low income
    housing; just to name a few. No state is exempt from the 14th
    Amendment law, to supply free welfare to any child born within the USA.
    Currently there is a bill in passage with 80 sponsors to stop this travesty of
    our laws. Rep. Steve King’s (R-IA) Birthright Citizenship
    Act of 2011, which would stop the misinterpreted practice of instant
    citizenship to children of illegal alien parents, unless one parent is either a
    citizen or naturalized citizen. Change is needed and only voters harassing
    their US and state lawmakers, will bring some sanity to this notorious law.
    Change also is required to stop nationwide businesses hiring illegal workers. Almost
    on Cue another Republican Rep. Don Manzullo (R-Ill.) has cosponsored
    Chairman Lamar Smith’s Legal Workforce Act (H.R.2885) that would require 100%
    of businesses to use E-Verify within two years. The bill also requires all
    federal, state, and local governments to E-Verify their entire workforce.  Every
    American has heard of the Mandatory E-Verify law that has now 72 sponsors. With
    only 28 co-sponsors to go forward, the E-Verify, ‘THE LEGAL WORKFORCE ACT’ can
    and will punish employers who hire unauthorized workers. Again American voter’s
    participation can make the difference by pressing Congressional members in the
    House to pass this bill. The ‘Legal Workforce Act’ is massively beneficial to
    jobless people, who quickly see an opportunity when work is scarce. Commit
    yourself to contact your Representatives and insist they sponsor ‘The Legal
    Workforce Act’ The bill will have the advantage of not only penalizing
    inveterate business owners, but this potential law will send illegal aliens
    scurrying home, as with no work available that is their only option, taking
    family members with them.



    This will bring to a halt
    of intimidation by the Department of Justice on states that has found it
    impossible to keep financially supporting millions of invaders who arrived and
    stayed, by whatever means. This is all complicated by the attachment of faith
    groups, the radical open border nuts and the special interest lobby, who think
    remember that most business owners have no conscious, just the thought of cheap
    labor adding to the additional profits; or the Democratic side perpetually
    looking for more voters, no matter the consequence to the working population.
    We saw this materialize in previous elections with the ACORN organization
    registering non-citizens to vote. There have been eleven State attorney General
    prosecuting these people, but there already setting up the canvassers under a
    different name. Our voting system has been compromised, so we must demand
    everybody who votes possess some kind of official picture ID.



    Either party seems to
    ignore the fact that taxpayers must bear the cost of carrying people from other
    countries and this is entirely wrong. Our country is being vigorously reset by
    the Liberal extremists and progressives and radical environmentalists. The
    latter would have all on bicycles than exploit the huge mineral and oil
    resources that lay beneath the earth. We have a massive abundance of oil
    deposits, natural gas, clean coal that can power our country for generations.
    Doesn’t mean we cannot tap the wind, geothermal a solar energy, but not rides
    into it blindly as President Obama and others have tried to do. Recognize that
    the TEA PARTY are the only sane party (The American physical Conservatives) and
    Independents for avoiding deficit spending, reduction of overall  government spending, national debt reduction,
    free trade, deregulation and of ultimate importance lower taxes. This includes
    rigid enforcement of all laws and no amnesty for persons who trespass in our



    As a voter its imperative you call Washington at
    202-224-3121, or you can read about this indignation at NumbersUSA website.
    America does and always has welcomed—LEGAL IMMIGRANTS—and always will. The 50
    states also welcome highly skilled workers who are educated in the Sciences,
    Engineering and technology. These Immigrants will never end up in the welfare
    lines. This country must inhibit the poverty from other countries, as we cannot
    even look after our own people who are in dire need of food and a decent life.



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  6. John says:

    The professor may not see voluntariness as a significant distinction, but the Printz Court certainly did:

     “[C]ontrol by the unitary Federal Executive is also sacrificed when States voluntarily administer federal programs, but the condition of voluntary state participation significantly reduces the ability of Congress to use this device as a means of reducing the power of the Presidency.” Printz, n.12.