Is foreign affairs preemption concerning immigration an all or nothing approach as the different lower courts and immigration scholars contend? The purpose of this article is to answer this question by recentering foreign affairs preemption in accordance with constitutional intent, an objective reading of Supreme Court precedent, and then reassembling the whole into a workable doctrine. This article will accomplish this in three parts. First, this article provides a brief examination of the plenary power doctrine over immigration, and its constructs according to the Founders' Constitution. This inquiry provides federal courts with the historical guideposts necessary to adjudicate foreign affairs preemption claims. Second, this article provides an overview of Supreme Court foreign affairs preemption precedent, with a focus on the preemption of state immigration laws. It confirms that the Court has never acquiesced to either an all inclusive or exclusive foreign affairs preemption doctrine as advanced by recent federal court decisions and scholars. Instead, the Court's precedent reveals a more centered approach where state or local immigration laws can be foreign affairs preempted despite advancing federal policy. This primarily occurs when state or local governments make immigration adjudications without the cooperation of the federal government or are not expressly authorized to act by federal law. Lastly, in light of this history and precedent, this article provides a three-part inquiry that should be used by the Supreme Court when adjudicating foreign affairs preemption in the constraints of immigration law.
Patrick J. Charles,
Recentering Foreign Affairs Preemption in Arizona v. United States: Federal Plenary Power, the Spheres of Government, and the Constitutionality of S.B. 1070,
60 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol60/iss1/5