Foreign Affairs Federalism: A Revisionist Approach
Abebe, Daniel, Huq, Aziz Z., Vanderbilt Law Review
In April 2010, the Arizona legislature enacted the Support Our Law Enforcement and Safe Neighborhoods Act.1 Commonly known as SB 1070, the law created a slate of new criminal offenses and arrest powers covering aliens within Arizona's borders.2 SB 1070 proved divisive. It inspired copycat legislation in several states,3 provoked sharp criticism from the legal academy,4 and-most relevant here-catalyzed a lawsuit by the U.S. Department of Justice seeking a preliminary injunction against the state law on the ground that it was preempted by federal law.5 Initially, the federal government's litigation prospects seemed dim. One term before SB 1070 reached the Supreme Court, the Justices had upheld an earlier Arizona effort to tamp down on undocumented aliens in the workplace. Doing so, the Court had limned a narrow reach for the preemptive penumbra of federal immigration law.6 In the SB 1070 oral argument, the Solicitor General seemed to fare poorly, with Justice Sotomayor even suggesting that his central preemption argument was not "selling very well" and that he try "to come up with something else."7
Yet in June 2012, the Court handed down an opinion giving the federal government "close" to everything it had sought.8 By a vote of five Justices to three, the Court invalidated three of the four challenged provisions and upheld the fourth subject only on condition that the state satisfied demanding limiting qualifications.9 What many expected to be a rout in favor of Arizona's position10 ended instead in a robust affirmation of national authority. What is more interesting, at least for our purposes, is how the majority and dissenting Justices reached their results. Both Justice Kennedy's majority opinion and Justice Scalia's dissent in Arizona v. United States began not with statutory or constitutional text, but rather with a judicial presumption about the appropriate distribution of authority between the federal government and the states on matters of intersecting state and federal foreign affairs-related concerns. In both opinions, that threshold presumption powerfully motivated the ensuing analysis.
For Justice Kennedy, "[t]he federal power to determine immigration policy is well settled" because of its entanglement in foreign affairs.11 Immigration "affect[s] trade, investment, tourism, and diplomatic relations for the entire Nation,"12 and so touches " 'the most important and delicate of all international relationships.' "13 By contrast, Justice Scalia opened with the opposite presumption: "As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress."14 That principle quickly yielded the result that "the federal alien registration system is certainly not of uniquely federal interest."15
This Article takes up the core of the debate between Justices Kennedy and Scalia. More precisely, it analyzes how courts should resolve cases that arise at the intersection of foreign affairs and federalism concerns when there is no dispositive constitutional, statutory, or treaty-derived rule. Cognizant of the competing approaches in Arizona, it considers the appropriate judicial presumption across the board in foreign affairs federalism cases. But the choice of presumption matters well beyond immigration-related cases. Indeed, the Court repeatedly confronts cases in which federalism and foreign affairs claims conflict and no text supplies clear direction.16 Previous cases involve not only immigration authority,17 but also state efforts to sanction repressive foreign regimes,18 encourage restitution for Holocaust survivors,19 settle money claims against foreign nations and their citizens,20 tax the global activities of corporations operating within a state's borders,21 and impose capital punishment notwithstanding objections from international organizations and courts.22 Nor does the Supreme Court resolve all such conflicts. …