Winning the Case, Losing the Principle
Arizona won, but the sovereignty of states suffered a setback.


Andrew C. McCarthy

And it may not just be a Congress in the grip of ideology that we need concern ourselves about. Yes, much of the Whiting majority opinion appears to dismantle the Obama administration’s theory that state power can be preempted by presidential diktat. Chief Justice Roberts repeatedly emphasizes that Arizona’s alien-employment statute “trace[s]” the analogous federal statutes.” He reasons that the question of whether states are preempted from regulating is controlled by the language Congress enacts into federal law. And he pointedly rejects the argument frequently urged by centralizers that immigration must have a one-size-fits-all enforcement scheme imposed by Washington. “The prospect of some departure from homogeneity,” Roberts explains, is a feature of “our federal system.”

Were the federal courts to hew to this Supreme Court guidance, the Obama administration would have to lose its lawsuit against Arizona. Furthermore, as an ethical matter, the Justice Department should abandon any case in which the law dictates that it should lose, even a case that excites the political base the president badly needs to excite if he is to win reelection. A Justice Department that abandoned a sure winner like the Black Panthers voter-intimidation case should, after Whiting, drop its Arizona case forthwith.

Don’t hold your breath. Obama’s loyalists and the open-borders crowd will observe that Whiting did not present a preemption claim rooted in presidential policy rather than statutory law. That this actually makes Obama’s case against Arizona’s Senate Bill 1070 weaker won’t matter; it is a distinction Holder’s Justice Department can point to as a reason for pressing ahead.

Moreover, in one brief section of the Whiting opinion, the chief justice takes pains to distinguish Arizona’s alien-employment law from state laws the Court has occasionally invalidated because they contravened presidential policy in the field of foreign affairs. For a non-political Justice Department in an era more faithful to the federalist underpinnings of our Constitution, those cases would not save the Arizona lawsuit. After all, the conduct of foreign relations is a core power of the presidency — states should not interfere with it, because it is the principal “external object” the federal government was created to manage.

By contrast, immigration enforcement is a traditional responsibility of the states, an “internal object” and an incident of sovereignty. Or at least it used to be.

 Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.