By Alan B. Morrison, Lerner Family Association Dean for Public Interest & Public Service at George Washington University Law School
The Supreme Court today by a vote of 5-3 upheld most of the rulings of the lower federal courts that Arizona’s efforts to supplement federal enforcement of federal immigration law was preempted by that law. Justice Kagan did not participate because she had worked on the case when she was Solicitor General. The ruling constituted a major victory for the Obama administration in a case that was vitally important to the Hispanic community.
Others will join the debate on whether the majority or the dissent was correct. I am writing to explore how progressives and others who support the American Constitution Society should react to this decision and how it compares to other decisions in which preemption was invoked to set aside other state laws that we might favor. My thesis is that, for most people, where you stand on preemption is where you sit on the substantive laws being preempted. A few examples will illustrate the point, after which I will try to put the issue in some perspective.
The proposition that federal law trumps state law if there is a conflict is not in dispute. The problem arises because Congress is often not clear, or does not anticipate what state laws might look like in a field where Congress has legislated. The Arizona case can fairly be described that way. Nonetheless, the Supreme Court has also been clear that state laws that stand as obstacles to the objectives or means used in federal laws are also preempted, which was the claim made here when the United States sued over the Arizona law that avowedly sought to “discourage and deter unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Opponents of the Arizona law saw it as an effort to harass immigrants as well as other Hispanics, while proponents claimed that it was designed to take up the slack in federal enforcement. Progressives generally favored the preemption side, while conservatives (including the three dissenting Justices, who did not include the Chief Justice) supported Arizona. For States, being opposed to federal preemption is their almost universal response, although they often take a different position when the issue is whether state law preempts actions by counties or towns. The United States is a little less monolithic, but tends to favor preemption in many if not most cases.
What about the rest of us? Consider the world of tort law where injured persons and groups that support them almost always oppose preemption, because the effect is to wipe out their damages claims. Not surprisingly, businesses of all kinds love preemption because where it applies, they no longer have to explain to a jury why what they did was OK, even though it caused grave injury to the plaintiffs. Since everyone must follow federal law in all cases, regulated entities will almost always argue for preemption for the pragmatic reason that it avoids state laws that will always impose additional obligations on that entity.
One area where the tables seem to be turned on preemption is voter registration, which is subject to both state laws and the National Voter Registration Act, also known as the Motor Voter Law, because it requires states to provide for easy voter registration when a person registers a car or obtains a driver’s license. That law also provides for a federal registration form that states must accept, as is, with limited exceptions. Both Florida and Arizona have sought to impose additional requirements, and civil rights and voter registration groups are challenging them – successfully so far -- on preemption grounds because they make the federally-approved registration process much more difficult. If progressives support those lawsuits – as they generally do – but oppose preemption in areas like personal injury claims and state law efforts to apply doctrines of unconscionability to mandatory arbitration clauses that also bar all class actions, is that being inconsistent? Or should we accuse the dissenters in Arizona v. U.S., who are among the strongest proponents of broad federal preemption, of being disingenuous because they took the anti-preemption position there?
Other examples abound, but they are not needed to make the point. At least as applied to advocates and their clients, preemption is either a tool or a barrier, depending on where you sit in a particular case. It was ever thus, and will continue to be. But can we ask for something more from the courts, which are supposedly neutral on the issue? Perhaps it is too much to ask for similar levels of federal “clarity” when striking down a state law as preempted as when rejecting a defense of preemption. It may be that clarity of preemption, like beauty, is in the eye of the beholder, and that there is no good general rule about preemption. Rather, it is a legitimate tool that is available to everyone to use, with the courts left the job of sorting out its proper and improper applications.
[image via Wikimedia Commons]