Abstract

http://ssrn.com/abstract=2041961
 


 



Reverse-Commandeering


Margaret Hu


Duke University - Law School

2012

UC Davis Law Review, Vol. 46, No. 2, 2012

Abstract:     
Although the anti-commandeering doctrine was developed by the Supreme Court to protect state sovereignty from federal overreach, nothing prohibits flipping the doctrine in the opposite direction to protect federal sovereignty from state overreach. Federalism preserves a balance of power between two sovereigns. Thus, the reversibility of the anti-commandeering doctrine appears inherent in the reasoning offered by the Court for the doctrine’s creation and application. In this Article, I contend that reversing the anti-commandeering doctrine is appropriate in the context of contemporary immigration federalism laws. Specifically, I explore how an unconstitutional incursion into federal sovereignty can be seen in state immigration laws such as Arizona’s controversial Senate Bill 1070 (SB 1070), the subject of the Court’s recent decision in Arizona v.United States, and also in the Legal Arizona Workers Act (LAWA), the subject of the Court’s consideration in Chamber of Commerce v. Whiting during the prior term. The Court upheld Section 2(B) of SB 1070 in Arizona, and upheld LAWA in Whiting, finding these state laws were not preempted by federal immigration law. Yet, in this Article, I conclude that these laws nonetheless interfere with the federal government’s exclusive power to control immigration policy at the national level. Thus, the constitutionality of state immigration laws such as SB 1070 and LAWA should be interpreted within an anti-commandeering framework. This doctrinal shift, from the preemption doctrine to the anti-commandeering doctrine, allows federal courts to examine the constitutionality of state immigration laws through a more explicit federalist lens.

Number of Pages in PDF File: 93

Accepted Paper Series





Download This Paper

Date posted: April 18, 2012 ; Last revised: February 15, 2013

Suggested Citation

Hu, Margaret, Reverse-Commandeering (2012). UC Davis Law Review, Vol. 46, No. 2, 2012. Available at SSRN: http://ssrn.com/abstract=2041961

Contact Information

Margaret Hu (Contact Author)
Duke University - Law School ( email )
Box 90360
Duke School of Law
Durham, NC 27708
United States
919.613.8569 (Phone)
HOME PAGE: http://www.law.duke.edu/fac/hu
Feedback to SSRN


Paper statistics
Abstract Views: 472
Downloads: 62
Download Rank: 212,721

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.297 seconds