Border Blues @ Georgetown

Speakers in the second panel a May forum co-sponsored by Georgetown Law School and the Independent Women’s Forum (IWF) discussed what type of constitutional challenges that might be brought against Arizona’s law in a panel, “Is the Law Constitutional?”

Several panelists argued that a preemption argument could carry greater weight than the class-action suit earlier filed by the American Civil Liberties Union (ACLU) and other parties such as the Mexican American Legal Defense & Educational Fund (MALDEF) because the Arizona law doesn’t come into effect until the end of July, making legal challenges prima facie ones.

Miguel Estrada, a partner at Gibson, Dunn & Crutcher LLP, said that “You often can go after there is a record to invalidate it as applied to particular circumstances and in order for you to demonstrate—usually that’s out of the First Amendment—that a law is invalid on its face you have to make a demonstration that there is no conceivable state of facts to which this law could validly apply, which is almost impossible as a test to meet in the Supreme Court” (emphasis added).

The panelists disagreed as to whether Arizona’s immigration statute is preempted by federal law, as the Obama Administration has argued (pdf).

Marshall Fitz, Director of Immigration Policy at the Center for American Progress, said that his “best guess is that several of the provisions, particularly those that deal with duplicating, and in some cases, expanding the criminal federal immigration provisions will be struck down as preempted, but even assuming…for the sake of debate today that it’s not, that they’re not preempted, that the courts don’t find that the state efforts to regulate in this area have been facially preempted, once we get into [the] an implementation phase I don’t see how there’s any way that there won’t be immediate and broad challenges based on the First, Fourth, Fifth and Fourteenth Amendments to the way this legislation is going to be implemented.”

Georgetown Law professor Viet Dinh argued, however, that this wasn’t a constitutional issue so much as a question of federalism and whether the law enforcement powers allocated by the Arizona legislators are naturally preempted by the federal enforcement.

“The question then is, is the Arizona law in conflict with federal law and you put the very fine point on it, and very correctly but I want to highlight it,” said Professor Dinh. “It is about the enforcement of the federal law.”

“So if a state passes a sanctuary statute, that is substantively in conflict with the federal law that says…‘illegality’ and state law says ‘sanctuary,’” he said. “Here, the state law doesn’t create that express sanctuary conflict, a substantive conflict, it just says that federal agencies are not enforcing the federal law, so we are going to enforce it.”

“The conflict argument has to be that the federal government, and the federal government alone, possesses exclusive authority to decide how much enforcement of federal law it wishes …”

Estrada said that “Viet was right in saying that the supremacy clause argument is not really a conflict with federal law since ostensibly this supplement [sic] the enforcement of federal law and it’s intended to aid federal law.”

However, he argued, that since it is a conflict over federal enforcement, “which is  ‘we will not enforce the law’” but “in order for the court to take cognizance of that sort of conflict” the executive branch would need to express that “we have intentionally chosen not to enforce the immigration laws…” Good luck getting anyone in the White House to say that, he said.

Patricia Ann Millett, a partner at Akin, Gump, Strauss, Hauer & Feld, argued that the problem wasn’t just one of preemption but “Article 2 of the Constitution.” “It is federalism, and that is that our constitution quite clearly assigns the enforcement of federal law to the executive branch—the president—and no greater liberal than Justice Antonin Scalia has suggested that there is an Article 2 problem with assigning the enforcement of federal law to sheriffs in 50 states in a different case,” she said.

“This isn’t just about legality, it’s about legitimacy, it’s about basic questions of governability in a state that is under extreme duress,” argued New York University adjunct professor Roger Pardo-Maurer.

“If one third of their population emotionally secedes from this law it’s not going to work,” he argued.

Orrin Baird, associate general counsel for the Service Employees International Union (SEIU), said that he disagreed with Professor Dinh’s characterization of Arizona’s law and said that if the Arizona law was meant to devote additional resources to federal enforcement of immigration then “it would be an entirely different law” and an entirely different legal argument. The SEIU is in favor of comprehensive immigration reform.

Bethany Stotts is a staff writer at Accuracy in Academia.