Legal Intern, Manhattan Institute's Center for Legal Policy
Yesterday, the Supreme Court issued its ruling in Arizona v. United States, the case involving Arizona's controversial SB 1070 bill on immigration. By a 5-3 vote, the Supreme Court struck down three of the four provisions that were being challenged in the Arizona law, but unanimously upheld the controversial "check your papers" provision [Section 2(B)].
Adam Freedman, a contributor at Ricochet.com and author of the forthcoming book The Naked Constitution, posted a guest commentary on Point of Law reacting to the decision. He also agreed to discuss the case as part of our podcast series.
During the podcast, Freedman discussed the rationale behind the majority's decision to strike down three of the four challenged provisions:
The way the majority reached its decision was by taking a very broad view of preemption. First of all, they weren't just talking about the federal power over naturalization, which is what the Constitution gives Congress ... The majority held that the federal government by virtue of its power over foreign affairs has to have this sort of all-encompassing power over the status of all aliens within our borders. ... What was really shocking was that the Court held that the federal government couldn't conduct foreign policy if states were allowed to adopt laws that might upset foreign governments, or that might inconvenience foreign governments by having to track 50 state laws rather than simply having one-stop shopping and being able to go to the federal government. So the decision really had very little to do with the fundamental structure of federalism; it had more to do with this imagined federal prerogative over foreign policy.
After analyzing the majority and dissenting opinions, Freedman offered this unique take-away:
I think it's a bad day for federalism. Unfortunately, there has been a trend going back for some decades - and it waxes and wanes - but there has been this idea that the federal government can invade state powers by using its foreign affairs prerogative ... Here a court is simply speculating why Congress might need to have exclusive powers for the benefit of the executive branch's foreign affairs powers. I think that's a very dangerous road to go on.
Check back this week for another podcast with Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, on his reactions to the Arizona v. United States decision.