Today, the Supreme Court heard oral argument regarding the constitutionality of the Arizona’s immigration law. The central issue is whether preemption could prevent states from promulgating laws and regulations in the sphere traditionally considered under the federal jurisdiction. Judging from Justices Anthony Kennedy and Sonia Sotomayors’ comments, it appears that the Supreme Court is not persuaded by the Obama Administration’s argument that because immigration is under the federal jurisdiction, the states cannot enact laws to protect themselves even if the federal government had failed to enforce its own laws. Justice Sotomayor found the Solicitor General’s argument confusing and that his argument was not going well before the Court.
While the Supreme Court’s decision affects whether states could enact and enforce its own immigration law, I believe that the broader implication of the Court’s decision will be on the issue of what legal recourse could be pursued when government officials fail to fulfill their constitutional duties to enforce the laws that they disagree with. What comes to my mind is the Ninth Circuit Court of Appeal’s decision to send the Proposition 8 case back to the California Supreme Court on the issue of whether the proponents of Proposition 8 has standing to argue the constitutionality of Proposition 8 in federal courts when government officials (i.e. former Governor Arnold Schwartzenegger and Attorney General Jerry Brown) refused to defend Proposition 8 in federal courts. While the California Supreme Court’s decision to give standing to the proponents of Proposition 8 was based on the idea that if government officials could decide not to enforce voters-passed laws because the government officials disagree with the law, then the populist idea of referendums and propositions would be rendered meaningless.
Here, if the Supreme Court finds that Arizona could enact immigration laws to protect its border, the legal door is ajar to permit states to enact laws in areas where the federal government refuses to enforce, or in states where ordinary citizens could pass laws via propositions, citizens could pass laws without fearing that they have no legal recourse if their elected officials refuse to uphold the laws.