Who Gets to Regulate?

The oral argument in Arizona v. US has been held and by all accounts, things look grim for the government.  At one point, Justice Sotomayor told Solicitor General Verilli that his argument “was not selling very well,” and that Verilli would be well-advised to “come up with something else.”

The focus of the case rests on the question of preemption.  The Constitution states that it and federal laws are supreme.  Thus, the question arises as to when federal law preempts state laws that regulate the same subject.  When Congress expressly indicates that it intends to preempt state law, the matter is simple.  However, in the case of Arizona, there is no express preemption, and that means that the Court is left to determine whether federal immigration law implicitly preempts state law.  The determination of implied preemption in this case will have ramifications for laws similar to Arizona’s that have been passed in other states.

Far from being a “slam dunk” for federal government supremacy,  the issue of state regulation of immigration goes back at least to the Taney Court.  One of the important cases decided by Chief Justice Taney is the case of New York v. Miln.[1] In that case, the city of New York required incoming passenger ships to prepare a list that provided information on the health and background of each passenger.  Shipping companies that failed to comply were fined; moreover, if it could be shown that passengers later became destitute, the shipping company would have to pay some of the cost of supporting those individuals.  Miln refused to comply with the law, arguing that it was preempted by Congress’ power to regulate foreign commerce.

The Taney Court upheld the New York law, arguing that the law was not a regulation of “commerce, but of police.”  In his opinion, Justice Barbour determined that the purpose of the law was “to prevent New York from being burdened by an influx of persons brought thither in ships; either from foreign countries, or from any other of the States….”  This purpose, argued Justice Barbour, was within “the powers reserved to the several States which extend to all the objects which,…concern the lives, liberties, and properties of the people….”  He noted later  “That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not… surrendered [by the states] or restrained [by the Constitution]; and that, consequently, in relation to these the authority of a State is complete, unqualified, and exclusive.”

Although Miln involves a challenge to federal power to regulate commerce as related to passengers in ships, it is interesting for several parallels to the current controversy in Arizona v. US.  The first is that it recognizes, for the first time, a police power for the states.[2]  Barbour averred that the New York law was “obviously passed with a view to prevent her citizens from being oppressed by the support of multitudes of poor persons who come from foreign countries without the means of supporting themselves.”  This concern for the burden posed by immigrants on states and localities is echoed today by those who support SB 1070, the law at issue in Arizona.  The second is that the ideological sympathies of the Court at the time of Miln had transitioned from the strong Federalist support of national power of Chief Justice John Marshall to the states’ rights sympathies of Jacksonian Democrat Chief Justice Roger Taney; in much the same way the current Court has moved from the strong national government ideology of the New Deal and Warren Courts and come to reflect the stronger states’ rights stance of the Rehnquist and Roberts Courts and the current Republican Party.  Finally, the decision in Miln played out against the backdrop of slavery, and the attendant fears of Southern states that a failure to recognize state power to control immigrants once they arrived would lead to problems with regulating slaves that traveled between slave and free states.[3]  The current Arizona case involves legislation that has been highly controversial because of the perception of the anti-immigration legislation as involving issues of race as well as state control of immigrants within state borders.

Thus, the importance of Miln is to show that the issues faced by the Supreme Court can be cyclical.  It will be interesting to see whether the Court’s decision in the current case will also echo the Court’s earlier decision.


[1] 36 US 102 (1837)

[2] See Paul Finkelman, “Teaching Slavery in American Constitutional Law,” Akron Law Review, vol. 34:1;  p. 266.

[3] See Finkelman, op. cit.

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