Opinio Juris’ Peter Spiro on the Arizona Lawsuit

Temple University law professor Peter Spiro, friend and Opinio Juris co-blogger, was interviewed by one of the Wall Street Journal blogs on the likely holdings in the Arizona lawsuit by the federal government.  Parts of his WSJ response can be found here at Opinio Juris. Peter expands in a later Opinio Juris post.  (I do not have a view on the likely outcome in the courts at this stage, so am interested in reading expert views on this, here at Volokh and elsewhere.)  Writes Peter:

The bottom line: I think there’s a pretty good chance the S.B. 1070 will be enjoined before it goes into force.

Here is DOJ’s press release and supporting documents, including the complaint and brief, both of which are nicely crafted and which persuade me that in one crucial respect the AZ law is too clever by half.

The state law closely tracks federal law (the drafters were advised by UMKC lawprof Kris Kobach, and it shows).  It doesn’t criminalize illegal presence per se, but rather a failure to possess alien registration documents (which undocumented aliens will never have).  Under federal law, presence in the US in violation of immigration law is itself not a criminal offense; failure to carry registration documents is.  But the latter is almost never enforced.  The AZ law is thus technically consistent with federal law, but only technically.  In the filings, DOJ notes that there will be many folks (mostly coming under the umbrella of humanitarian cases — think undocumented Haitians after the earthquake) whom the federal government would let be but might still end up in the clink in Maricopa County.

That said, the argument that S.B. unconstitutionally interferes with foreign relations strikes me as a stretch, for all the reasons that Crosby and Garamendi are weak decisions and the “one voice” mantra (see the brief at 24) is obsolete.  Where the brief cites the 1941 decision in Hines v. Davidowitz to the effect that “Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government,” you can see how we’re in another world.  S.B. 1070 may be an agenda item in US-Mexico relations, but it’s unlikely to open up a third front.  If it’s such a big problem, the political branches are free expressly to preempt the state measure.