Recentering Foreign Affairs Preemption in Arizona v. United States: Federal Plenary Power, the Spheres of Government, and the Constitutionality of S.B. 1070

Abstract

With the Supreme Court granting certioari in Arizona v. United States, it will be the first time in thirty years that the Court will hear a foreign affairs preemption case concerning immigration. It is a fact that most commentators have overlooked as they focus on the case in the constraints of traditional preemption theories. Indeed, the federal government is claiming the laws are unconstitutional under a number of preemption approaches, but the focal point of each theory is that Arizona’s law conflicts with the comprehensive federal scheme as to impede on foreign policy.

This Article answers the question: 'Is foreign affairs preemption concerning immigration an all or nothing doctrine as different lower courts and immigration scholars contend?

This article answers this by reconstructing the Founders' Constitution concerning the division of federal-state power over immigration, and compares this historical data with Supreme Court foreign affairs preemption precedent .The article concludes both the Founders' Constitution and Supreme Court precedent stipulates a three-part test for any state immigration law to be saved from foreign affairs preemption. If one applies this contstruct to Arizona S.B. 1070 and other "attrition through enforcement" laws, many of the provisions are foreign affairs preempted.

Keywords: foreign affairs preemption, implied preemption, immigration, Arizona v. United States, S.B. 1070, unlawful aliens