The Department of Justice didn’t get the memo.
At least so it seems, given Wednesday’s oral arguments in front of the Supreme Court regarding Arizona’s immigration enforcement law. The DOJ’s federal preemption argument — that SB 1070 runs contrary to federal law and is thus unconstitutional — is remarkable not only for its weakness, but also for its disregard of President Obama’s stated policy on federal preemption.
On May 20, 2009, the president issued a memorandum to the heads of executive departments and agencies on preemption. The purpose of the memorandum was to state his administration’s general policy “that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” The president recognized that “State law and national law often operate concurrently to provide independent safeguards for the public,” and that “[t]hroughout our history, State and local governments have frequently protected health, safety and the environment more aggressively than has the national Government.”
In case the president hasn’t noticed, this is one of those moments in history.
The 2009 memorandum was largely a rejection of Bush administration policies that favored the preemption of state tort suits in which juries’ decisions could conflict with the decisions of federal agencies. The most notable example was the Supreme Court case Wyeth v. Levine, which centered on the FDA’s assertion that its approval of a prescription drug warning label should preempt a plaintiff’s ability to sue a drug manufacturer in state court alleging that the label is nevertheless defective according to state law.
The Supreme Court disagreed with the FDA in a 6-3 decision. It found that, even though the FDA mandated the use of a specific warning label, there is an assumption that “the historic police powers of the States [are] not to be superseded … unless that was the clear and manifest purpose of Congress.” President Obama found merit in the court’s view, lamenting that in “recent years” executive departments and agencies have sometimes announced that their regulations preempt state law without explicit preemption by Congress.
But Wednesday, the administration was singing a different tune. Absent any preemption provision from Congress, the administration has decided that SB 1070 should be preempted simply because it “will conflict with and undermine the federal government’s careful balance of immigration enforcement priorities and objectives.”
President Obama’s positioning on the preemption issue reveals a couple of things. First, it shows that he doesn’t understand the concept. Preemption is not a question of policy — it is a question of fact. The inquiry should always be whether there is, in fact, a substantive conflict between state law and federal law on an issue. This arguably was the case in Wyeth v. Levine, where the FDA’s permission to market a drug under a specific warning label was effectively vetoed by a state jury.
Yet in the case of SB 1070, there is no conflict with any federal law or regulation. The Arizona law does not set immigration standards contrary to those under federal law. Nor does it contradict any determination made by a federal agency. SB 1070 is simply an enforcement provision that aims to promote compliance with federal law, not to hinder it. And while the Constitution does enumerate to Congress the power to establish a uniform rule of naturalization, the power of immigration enforcement has historically been among the police powers of the states. Hence, given that the FDA’s preemption argument failed in Wyeth v. Levine, where there actually was a discrepancy between state and federal law, the denial of preemption in the Arizona case should be a no-brainer for the court. To hold otherwise would be to hold that state and local authorities cannot cooperate in the enforcement of federal law, even while they can sometimes undermine it.
The president’s positioning on this issue also demonstrates that he is willing to use the law as a tool for achieving his own political goals. When federal preemption stands in the way of trial lawyers’ interests, he is a staunch defender of “the legitimate prerogatives of the States” as “independent safeguards for the public.” Yet when federal preemption is the most plausible way to defeat a state law to score political points among his base, his administration is not afraid to assert the dominance of federal power.
While the administration would probably like to forget that pesky memo from May 2009, it might behoove the Supreme Court justices to consider it. They might find the president’s view on the subject quite persuasive.
Joseph Petros is an associate at the law firm of Warren and Young PLL in Ashtabula, Ohio. He is a graduate of the University of Notre Dame and the University of Notre Dame Law School, where he served as executive editor of the Notre Dame Journal of Law, Ethics & Public Policy.