Immigration Laws at the Supreme Court: Constitutional but Bad Policy

For anyone suffering from post‐​Obamacare‐​argument Supreme Court withdrawal, this Wednesday the Court takes up Arizona’s controversial Senate Bill (“SB”) 1070. See my blogpost from when the Court granted review for some background.


SB 1070 is much‐​misunderstood: it has nothing to do with sexy political issues like racial profiling and everything to do with boring legal ones like whether a given state provision is “preempted” by federal law. That is, do the various parts of the state law — each one of which the Court will be evaluating independently — conflict with federal law (direct preemption) or intrude in an area exclusively reserved to Congress (implied preemption).


United States v. Arizona shows that there’s a difference between what’s constitutional and what’s good policy. SB 1070 was crafted to mirror federal law rather than asserting new state powers that interfere with federal authority over immigration. That’s why lower courts only enjoined four of its provisions and why the Supreme Court would not be wrong to resurrect even those four.


But beyond this hyper‐​technical legal analysis, SB 1070 and copy‐​cat laws elsewhere — some of which go further than Arizona’s and thus are of more dubious constitutionality — highlight the dysfunction in our immigration system. Given Congress’s failure to act in this area, state governments have spawned a host of federalism experiments. Many of these laws are terrible policy for reasons ranging from economic effects to the misuse of law enforcement resources.


Legal scholars always enjoy the opportunity to point out laws that they think are constitutional but bad policy. It makes them feel intellectually honesty (if they have reason to be defensive in that regard). Well, immigration is the most obvious place where my constitutional and policy views diverge. The ultimate solution here isn’t for the Supreme Court to strike down the states’ lawful if misguided legislation, but for Congress and the president to enact a comprehensive national reform.


For more on what’s at stake in the case, see my SCOTUSblog essay from last summer, my forthcoming law review article, and my new colleague Alex Nowrasteh’s recent op‐​ed. For the briefs and other background materials, see SCOTUSblog’s case page.