In my previous posts I examined the reasons given in the DOJ brief why SB1070 violates federal supremacy in immigration both generally, under field preemption, and specifically, under conflict preemption, and the general import of the suit.
This final post on the brief concerns the final argument of the brief: SB1070 violates the Dormant Commerce Clause. One could reasonably refer to this as a kitchen sink argument: the courts will likely never get to it, but there is a case to be made, so the drafters made it – why not?
The Commerce Clause of Article I of the Constitution grants Congress the exclusive power to regulate commerce among the states. The negative corollary of the Clause is thus to restrict the ability of states to legislate restrictions upon that same trade: that restriction is the basis of the Negative or Dormant Commerce Clause jurisprudence.
Any time a state legislates regarding the movement of people or goods between states, there is a good chance that the Dormant Commerce Clause may be implicated. The harboring, transporting and concealing provisions of SB1070's §5 criminalizes the movement of undocumented aliens across the U.S. international border, within Arizona, and across Arizona's interstate borders. Those restrictions on international movement are likely violations of federal preemption of international immigration policy, but those restrictions of movement across Arizona's interstate boundaries with California, New Mexico, Nevada, and Utah implicate the Dormant Commerce Clause.
In support of its position the Feds cite, among others, a Supreme Court precedent that struck down a Great Depression-era California statute which prohibited the transport of "indigent" persons into the state. Think of it as the legislative expression of the bigotry and hatred described in The Grapes of Wrath. The Court held that the Dormant Commerce Clause "prohibits attempts on the part of any single state to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders." Edwards v. California, 314 U.S. 160 (1941).
The choice of precedents is elegantly done. Not only does it admonish Arizona for trying to solve immigration alone rather as a member of a union, it hearkens back to a previous hard time when the least among us were scapegoated for the failures of the mighty.
This may be the least of the Feds' powerful arguments that SB1070 is unconstitutional, but it may be the most illustrative of why SB1070 is a bad idea. If Arizona wants to address immigration in a fashion consistent with our form of government, they would do better to demand their federal representatives actually work toward realistic national solutions, not pander to the worst instincts of the electorate or block any progress unless its on their own terms.
SB1070 ultimately is the perfect embodiment of a juvenile political culture that has taken root in the GOP generally, and the Arizona GOP especially. To those supporters of SB1070 who see this as a test of their political will, I say, "Grow the hell up. You've got a whole nation's attention with your tantrum. Now do something useful and really work toward comprehensive immigration reform."