New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Supreme Court Review, 2012

Abstract

It is commonplace for states to help enforce federal law. Indeed, "enforcement redundancy" is a widespread and typically unremarkable aspect of American federalism. Local police regularly arrest people for violating federal criminal law; states criminalize wide swaths of conduct, like dealing drugs, that are also federal offenses; and states often attach civil penalties to conduct, such as workplace discrimination, already proscribed by federal law. Nevertheless, in United States v. Arizona — the most significant immigration federalism case in decades — the Supreme Court vitiated Arizona’s efforts at redundant enforcement.

This Article explores why the Arizona Court rejected redundant enforcement and what implications the rejection holds for the future of immigration law. The Court rejected redundant enforcement, I argue, by conceptualizing law as a set of prices rather than a series of obligations. This analytic framework constitutes a radical departure from conventional approaches to preemption. Moreover, the approach is one the Court cannot possibly embrace as a general way of analyzing intergovernmental conflicts. Doing so would eliminate vast swathes of state regulatory authority and dramatically reshape our federal system.

The Court’s law-as-price approach makes Arizona much more a case about separation of powers than one about federalism. It consolidates tremendous immigration policymaking power in the Executive Branch, endorsing the idea that immigration law is centrally the product of executive “lawmaking” that bears little relation to immigration law on the books. The Court’s decision to ratify this sort of Presidential control over migration policy has important implications for the ongoing transformation of immigration law, as well as for the future of American federalism.

Date of Authorship for this Version

4-2013

Keywords

federalism, immigration, enforcement redundancy, executive power, administrative law