Lucas Guttentag on Preemption, Discrimination and Arizona v. U.S.

"The Supreme Court is expected to decide within days whether Arizona’s controversial immigration enforcement statute, S.B. 1070, is unconstitutional.  Arizona’s law is widely condemned because of the discrimination the law will engender.  Yet the Court appears intent on relegating questions of racial and ethnic profiling to the back of the bus, as it were.  That is because the Supreme Court is considering only the United States’ facial preemption challenge to S.B. 1070 under the Supremacy Clause.  That preemption claim asserts that Arizona’s statute conflicts with the Immigration and Nationality Act’s federal enforcement structure and authority.   But discarding the relevance of discrimination as a component of that ostensibly limited preemption claim expresses the federal interest too narrowly.  State laws targeting noncitizens should also be tested against another fundamental federal norm, namely the prohibition against state alienage discrimination that dates back to Reconstruction-era civil rights laws.  In other words, the federal principles that states may not transgress under the Supremacy Clause should be defined both by the benefits and penalties in the immigration statute and by the protections embodied in historic anti-discrimination laws." - Lucas Guttentag, June 18, 2012.