As expected, the Obama Administration is suing in federal court to block implementation of Arizona's immigration law. I'm not a fan of the new Arizona immigration law. But I'm also not an expert on constitutional law.
Walter Dellinger is. He is presently on leave from the faculty at Duke Law School, serving as head of the appellate practice at the firm O'Melveny and Meyers. He held several positions in the Clinton Administration, including acting Solicitor General, and argued nine cases before the Supreme Court during that time.
Via email, I asked Dellinger whether he thought he thought the Arizona statute was constitutional. His answer was unequivocal: No.
Giving the national government control over immigration into the United States was a major decision made by the framers of the Constitution. That is neither a liberal nor a conservative position. Allowing states to set their own immigration policy could lead in the future to more rather than less unlawful immigration. Given the freedom of movement within the United States and the implications of immigration for domestic national issues and foreign policy, it is unthinkable to leave immigration policy to thirteen or fifty different states. Calibrating the right combination of enforcement tools to utilize is at the core of the national power over immigration, and state laws are preempted whether they purport to add to or subtract from the system put in place by Congress. Whether current federal enforcement is adequate or not, whether Arizona's law is wise or not, whether suing is good politics or not are all beside the point: it is essential that the federal government's control over immigration into the United States be protected from state interference. In my view the Justice Department had no choice but to bring this suit.
I also asked Dellinger whether other federal judges, including those on the Supreme Court, might disagree. His response:
The state will argue that it is only helping the federal government do the job it is supposed to do and not interfering. I don't think that's is right for the reasons stated. Arizona may have some success in the lower courts, but I don't believe that the Supreme Court Justices, whether conservative or liberal, will be at all sympathetic with the notion the federal control over immigration ought to delegated to 50 different states.