At the ACS Blog, Pratheepan Gulasekaram: Immigration Federalism Post-Arizona. A good overview of appeals court litigation on the issue, with this observation:
… [T]hese recent cases reify the trend of employing statutory (rather than structural) preemption analysis to answer immigration federalism questions. Following the lead of Arizona and Whiting, circuit courts applied the Supreme Court’s implied-preemption taxonomy to assess whether subfederal laws ran afoul of the constitution’s Supremacy Clause. Employing this analytic framework, these circuits concluded, for the most part, that the state and local regulations at issue conflicted with federal law, stood as an obstacle to the accomplishment of federal goals, or attempted to regulate a field occupied by the federal government. …
But this mode of analysis – one placing great weight on the existence and specific content of the federal statutory background – is neither inevitable nor necessary in immigration federalism. Indeed, in one of its first assessments of state immigration regulations, the Supreme Court in Chy Lung v. Freeman struck down an 1874 California law that essentially gave state officials discretionary power over the admission of noncitizens arriving at the state’s ports of entry. The Court stated that “[t]he passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not the states….[T]he responsibility for the character of those regulations and the manner of their execution belongs solely to the federal government.” This rationale is akin to a structural or sovereignty-based form of preemption, with the Court rejecting state intervention into core immigration functions. And, at that time, we did not have (as we do now) the robust federal regulatory framework in the Immigration and Nationality Act and an elaborate federal enforcement apparatus in the Department of Homeland Security.
Perhaps, but the problem for the "structural" approach is that it is contrary to almost 100 years of state regulation of immigration prior to Chy Lung. And Chy Lung keeps some bad company from an originalist perspective: during the late nineteenth century the Court found that quite a few things were inherent in national sovereignty with little basis apart from the Court's belief that they ought to be decided at the national level, and with no explanation of how inherent sovereignty theories could be reconciled with the Tenth Amendment. In this sense, the statute-focused approach to state immigration restrictions that the post outlines seems truer to original meaning (although it still may not leave enough space for the states).
Posted at 6:28 AM