Patrick J. Charles (Government of the United States of America - Air Force) has posted Recentering Foreign Affairs Preemption in Arizona v. United States: Federal Plenary Power, the Spheres of Government, and the Constitutionality of S.B. 1070 (Cleveland State Law Review, Vol. 60, No. 1, 2012) on SSRN. Here is the abstract:
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With the Supreme Court granting certioari in Arizona v. United States, it will be the first time in thirty years that the Court will hear a foreign affairs preemption case concerning immigration. It is a fact that most commentators have overlooked as they focus on the case in the constraints of traditional preemption theories. Indeed, the federal government is claiming the laws are unconstitutional under a number of preemption approaches, but the focal point of each theory is that Arizona’s law conflicts with the comprehensive federal scheme as to impede on foreign policy.
This Article answers the question: “Is foreign affairs preemption concerning immigration an all or nothing doctrine as different lower courts and immigration scholars contend?”
This article will accomplish this in three parts. First, this article provides a brief examination of the plenary power doctrine over immigration, and its constructs according to the Founders’ Constitution. This inquiry provides federal courts with the historical guideposts necessary to adjudicate foreign affairs preemption claims. Second, this article provides an overview of Supreme Court foreign affairs preemption precedent, with a focus on the preemption of state immigration laws. It confirms that the Court has never acquiesced to either an all inclusive or exclusive foreign affairs preemption doctrine as advanced by recent federal court decisions and scholars. If anything, the Court’s precedent reveals a more centered approach where state or local immigration laws can be foreign affairs preempted despite advancing federal policy. This primarily occurs when state or local governments make immigration adjudications without the cooperation of the federal government or are not expressly authorized to act by federal law. Lastly, in light of this history and precedent, this article provides a three-part inquiry that should be used by the Supreme Court when adjudicating a foreign affairs preemption query concerning immigration.
