Protesters in front of the Supreme Court

MARGARET HU, mhu at law.duke.edu
Hu is an assistant professor at Duke Law School and is the author of a forthcoming article in the U.C. Davis Law Review titled “Reverse-Commandeering.” She just wrote on the American Constitution Society blog: “As the Supreme Court heard oral argument in Arizona v. U.S., one of the main legal questions it considered is this: Whether Arizona’s Senate Bill 1070 (SB 1070) is preempted by federal immigration law under the Supremacy Clause. This is a statutory-driven inquiry that misses the constitutional mark. The more relevant question is this: Whether SB 1070 poses a threat to the vertical separation of powers. …

“The recent tidal wave of thousands of immigration control efforts proposed by state and local governments can best be characterized as ‘reverse-commandeering’ laws. Setting migration policy at the national level, like establishing a national currency, falls within the sole power of the federal government. Reverse-commandeering by the states is an effort to usurp the federal government’s sole prerogative. This growing movement represents an attempt to control the terms of what federal resources and officers must be appropriated to accommodate a myriad of state immigration enforcement programs. It is a deliberate attempt to skew the immigration enforcement power in favor of the states. …

“Given the impact of immigration policy on foreign and interstate commerce, international treaties, and foreign relations, the Court has concluded that controlling migration patterns is strictly the prerogative of the federal government. Consequently, the growing proliferation of thousands of proposed state and local immigration laws should be examined doctrinally within a commandeering jurisprudential frame. To fail to do so — to continue to accept mirror image theory carte blanche as a favored method of statutory interpretation under the existing preemption doctrine — threatens federal sovereignty. Put another way, it eviscerates the federal government’s ability to develop and implement a coherent, efficacious, and uniform immigration policy at the national level.”