Summary: Arizona v. United States raises several cutting edge questions about federal preemption of state laws. These questions derive from Arizona’s "mirror image theory" of the case. That is, Arizona argues that its statutes are a mirror image of federal statutes, and therefore that no preemption problem exists. In arguing against that theory, the federal government has voiced what has been unflatteringly called "preemption by executive whim." That is, that preemption can be created by federal executive branch enforcement (or, non-enforcement) priorities that essentially ignore enforcement of the statutes being mirrored. What do those competing claims mean in preemption analysis where, traditionally, courts have looked to the law as written or established, rather than as enforced? -- Another big question here is whether a state may have specific policies where either (1) the federal government does not, or (2) the federal government is perceived to have failed in its policies. Arizona has expressly adopted a policy of "attrition through enforcement" in regard to illegal aliens. The federal government, on the other hand, has not ever adopted such a policy. As Ilya Shapiro put it, the national immigration system "is a remnant of various half-baked ‘reforms’ going back decades, it’s a schizophrenic set of laws that don’t advance any particular goal or mission." Does a "policyless" federal system conflict with a state system that has a policy? Does it matter if that policy is "attrition through enforcement" or "sanctuary cities"? Moreover, does the federal government’s "failure" to have a workable or actual policy free a state to derive its own policy, at least where that vacuum of federal power is seen as having specific negative effects on the state? This panel was featured at the Sixth Annual Western Conference on January 28, 2012. Featuring Prof. Gabriel "Jack" Chin of UC Davis School of Law; Prof. John Eastman of Chapman University School of Law; Mr. Joe Sciarrotta, General Counsel to Governor Jan Brewer of Arizona; Prof. Margaret Stock of Lane owell LLC; and The Honorable Edwin Meese of The Heritage Foundation as the moderator. Introduction by Mr. Eugene B. Meyer, President of The Federalist Society.
