Washington, DC — As expected, U.S. Attorney General Eric Holder and the Department of Justice (DOJ) recently filed a lawsuit seeking to prevent enforcement of Arizona’s new immigration law, S.B. 1070.  In the weeks leading up to the filing of the lawsuit, the Obama administration shared plenty of rhetoric about the Arizona law, and even apologized to the president of Mexico and to China for Arizona’s human rights record.  But if you look back at the DOJ’s lawsuit itself, it doesn’t allege that the Arizona statute violates anyone’s civil rights or that racial profiling is occurring.  Instead, the DOJ seeks to enjoin enforcing that law on the grounds that it has “crossed a constitutional line” by violating the Supremacy Clause of the U.S. Constitution, and that it is therefore “preempted” by federal law.

The notion of federal preemption originated in 1789, and is contained within Article VI of the Constitution.  It says that when the federal government has validly chosen to regulate a given subject, federal law “shall be the supreme law of the land ...  anything in the constitution or laws of any state to the contrary notwithstanding.”  Over time, Congress passed an increasing number of laws to regulate what it perceived to be national issues, and created and funded agencies to implement such regulations:  the Department of Health and Human Services, the Department of Transportation, the Food and Drug Administration, and the Department of Homeland Security, to name a few.  With an ever-widening coverage of certain areas by federal law, courts – not surprisingly – have found that the federal law on a given issue trumps any conflicting state law.  after all, one of the key components behind a federal regulation is the idea that national experts have studied a subject and set uniform standards that must be followed everywhere.  On some occasions, Congress engages in “express preemption;” that is, it comes right out and says it is trumping any conflicting state law (the labels on bottled water are an example of this).  On other occasions, courts find “implied preemption” and give a higher priority to federal laws to prevent them from being contravened or obstructed by state requirements with which there is a conflict (rules governing airbags are an example of this).

In the case of Arizona’s laws, the DOJ maintains that Arizona’s legislators and Gov. Brewer are interfering with the federal government’s authority to develop and carry out immigration policy, an area that the federal government has reserved for itself.  Allowing states like Arizona to enact their own immigration policies, Attorney General Holder says, would result in a patchwork of state and local laws that would disrupt federal immigration enforcement efforts.  But Holder’s position ignores some key facts and exposes a significant hypocrisy in the Obama administration’s attitude toward federal preemption in particular and federalism in general.  In short, for the Obama administration, federal preemption is a principle to be waved around like a battle flag when it suits its purposes, and to be hidden away like an embarrassing family secret when it might conflict with the White House’s agenda.

First of all, Arizona’s S.B. 1070 (a law that a majority of both Arizona citizens and Americans nationwide agree with, according to several polls) mirrors longstanding federal immigration law; it’s intended to complement, not contradict, immigration policy.  Second, if this controversy gets as far as the U.S. Supreme Court, the Supreme Court has long recognized a presumption against federal preemption – in other words, unless Congress demonstrated that it was its clear and manifest purpose to take over the law in a given field (like interstate commerce or drug labeling) courts shouldn’t preempt laws passed by the individual states.

Third, the Obama administration’s own policies clearly encourage state and local governments to play a pivotal role in border security and immigration enforcement efforts.  In 2009, the federal government spent roughly $60 million on Operation Stonegarden, a program that provided grants to state and local law enforcement in border states like Arizona to “enhance cooperation” between federal, state, and local agencies “in a joint mission to secure the United States border.”  The Department of Homeland Security funds Border Enforcement Security Teams, which include personnel from state and local law enforcement.  In addition, the DOJ even participates in a program that trains state and local law enforcement on immigration enforcement.

But perhaps the most disturbing and overtly political aspect of the Obama administration’s decision to challenge the Arizona law on federal preemption grounds is the fact that it clearly conflicts with the White House’s previously articulated stance on the preemption issue.  As recently as April, Solicitor General (and U.S. Supreme Court nominee) Elena Kagan submitted an anti-preemption brief to the Supreme Court in Williamson v. Mazda Motor of America, a case in which the high court will have to decide whether federal motor vehicle safety standards preempt a state tort law product liability claim.  The California appellate court had found that the plaintiffs’ claims were preempted under federal law, and Solicitor General Kagan’s brief opposes the idea of implied preemption, arguing that state tort law actions shouldn’t be derailed just because auto manufacturers have to comply with federal safety laws about seatbelts.

But even more damning is a May 20, 2009 White House Memorandum on preemption, which was directed to all executive department and agency heads.  The Memorandum cautions that the preemption of state law by federal authorities “should be undertaken only with full consideration of the legitimate prerogatives of the states and with a sufficient legal basis for preemption.”  Unless the relevant federal statute clearly contains an intention to the contrary, President Obama stated, there should be a presumption against preemption.  He notes that, as Supreme Court Justice Louis Brandeis observed over 70 years ago, “a single courageous state may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.”  In what would seem to be a pretty accurate description of the reasoning behind the Arizona law, the same Memorandum states that “state law and national law often operate concurrently to provide independent safeguards for the public.” 

Both Presidents Clinton and Bush issued executive orders directing federal agencies to say what preemptive effect they intended their rules to have.  And both administrations supported the preemptive effect that federal regulations would have against tort lawsuits brought under state law; the Clinton administration, for example, favored DOT regulations on things like airbags and railroad crossings trumping state law, while the Bush White House supported preemption by National Highway Traffic Safety Administration vehicle roof strength standards and the Food and Drug Administration’s regulation of medical devices.  Yet prior to its opposition of Arizona’s immigration statute, the Obama administration was backing away from preemption at every turn, from motor vehicle standards to FDA regulations that would shut down plaintiffs’ state law failure-to-warn claims against certain drug manufacturers.  Who could possibly benefit from such an about-face on federal preemption?  Why, the plaintiffs’ personal injury trial bar, of course – coincidentally among President Obama’s and Vice President Biden’s most vocal and generous supporters during the 2008 presidential campaign.

So we have an administration that – in the Arizona lawsuit – is suddenly championing federal preemption, a doctrine it has steadily retreated from or rejected since coming into power so as not to interfere with those pesky little state tort lawsuits brought by its most reliable contributors. 

At least as far as Arizona’s efforts to help enforce immigration regulations are concerned, gone is the White House’s deference to states’ rights and the noble Brandeis-inspired notion of states as “laboratories” for “novel social and economic experiments.” 

Instead it is replaced by a hypocritical concern about having to prevent a “patchwork” of conflicting state policies. 

Welcome to the concept of preemption – but only when it suits us.w