Response to S.B. 1070 symposium posts

The entire symposium is here.

Richard Samp may well be correct to argue that, in light of its
recent decision in Chamber of Commerce v. Whiting, the Supreme Court
may regard the employer sanctions in S.B. 1070 as authorized, not
preempted, by pertinent federal statutes–even though S.B. 1070’s
provisions go well beyond those enacted in the earlier,
little-enforced Arizona law that the Court upheld.  (That’s why
Arizona passed them). Peter Spiro may also be correct to suggest
that, having recently handed down Chamber of Commerce v. Whiting,
the Court will wait until more litigation arises from similar laws
in other states before it rules again.  But the more such laws
proliferate, the more such cases multiply, the more it should be
evident that the states are indeed seeking to pursue “attrition
through enforcement” measures that do not “mirror” federal
immigration policies–they seek to correct them.  The proponents of
these measures acknowledge, indeed trumpet, this reality in their
political and legislative statements, though not in their judicial
briefs. If the Court broadly upholds these state measures, the real
message will not be that they are not preempted by federal law.  It
will be that the Court’s majority agrees that federal immigration
policies do not merit protection against these alternative state
approaches.