Reverse-Commandeering

Authors

Margaret Hu, Duke Law SchoolFollow

Document Type

Article

Publication Date

2013

Keywords

federalism, anti-commandeering doctrine, immigration, sovereignty, Tenth Amendment, preemption

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.

Citation

Margaret Hu, Reverse-Commandeering, 46 University of California Davis Law Review 535-627 (2013)