Foreign Ministries Granted ‘Heckler’s Veto’

By Chad Burchard | April 21, 2011

The Ninth Circuit Court of Appeals’ recent 2-1 decision to uphold a lower court’s injunction against enforcing portions of S.B. 1070—Arizona’s much maligned anti-illegal immigration law—has been hailed by the law’s opponents and harshly criticized by its supporters.

The Ninth Circuit upheld the lower court’s injunction on the grounds that the law likely violated the Supremacy Clause of the U.S. Constitution, which holds that federal law preempts any conflicting state law.

While the court found preemption likely for a variety of reasons, one of them was related to the law’s negative reception abroad and its consequent impact on U.S. foreign policy. Citing Supreme Court case law emphasizing federal authority over foreign affairs, Judge Richard Paez, a Clinton appointee, asserted that “the record unmistakably demonstrates that S.B. 1070 has had a deleterious effect on the United States’ foreign relations, which weighs in favor of preemption.”

Judge Paez observed that the number of foreign leaders and bodies that had criticized the law was quite extensive, and included:

“The Presidents of Mexico, Bolivia, Ecuador, El Salvador, and Guatamala; the governments of Brazil, Columbia, Honduras, and Nicaragua; the national assemblies in Ecuador and Nicaragua and the Central American Parliament; six human rights experts at the United Nations; the Secretary General and many permanent representatives of the Organization of American States; the Inter-American Commission on Human Rights; and the Union of South American Nations.”

He also noted that Mexico had not only criticized the law but also “taken affirmative steps to protest it,” pointing to the refusal of several Mexican border state governors to take part in the 28th Annual Border Governor’s Conference to have been held in Phoenix in September 2010 and chaired by Arizona Governor Jan Brewer, who had signed the controversial anti-illegal immigration Senate Bill 1070.

Judge John Noonan, who joined the majority opinion, also wrote his own concurrence to emphasize what he believed was the law’s “incompatibility with federal foreign policy.” He noted that the law’s stated intent was “attrition through enforcement”—i.e., to gradually reduce the illegal immigrant population in Arizona through consistent enforcement of the immigration laws—and interpreted this to mean that Arizona had enacted “its own immigration policy distinct from the immigration policy and the broader foreign policy of the United States.” “In matters affecting the intercourse of the federal nation with other nations,” wrote Judge Noonan, “the federal nation must speak with one voice.” Describing immigration policy as “a subset of foreign policy,” he asserted that:

“The foreign policy of the United States preempts the field entered by Arizona. Foreign policy is not and cannot be determined by the several states. Foreign policy is determined by the nation as the nation interacts with other nations.”

After briefly summarizing some of Congress’s powers to set foreign policy, Judge Noonan wrote that “[t]he foreign policy of the nation is also established by acts of executive power” and that case law demonstrated that “[p]residential power to preempt states from acting in matters of foreign policy is beyond question.”

Judge Carlos Bea wrote a partial concurrence and partial dissent. However, even where he joined the majority, he made it clear that he dissented with respect to “the majority’s foreign-relations rationale,” stating that “a foreign nation may not cause a state law to be preempted simply by complaining about the law’s effects on foreign relations generally.” He expressed his belief that to do so would be to “grant other nations’ foreign ministers a ‘heckler’s veto.’”

Noting that the power to preempt state and local laws rests with Congress, Judge Bea argued that the majority had ignored Congressional intent and improperly applied Supreme Court case law in reaching its holding. The cases cited by the majority, he explained, involved situations where state laws conflicted with foreign policy objectives that were embodied in federal laws, treaties, and executive agreements. Thus, “it is not simply any effect on foreign relations generally which leads to preemption,” he wrote, rather “a state law is preempted because it conflicts with federal law only when the state law’s effect on foreign relations conflicts with federally established foreign relations goals.”

Since no “federal foreign relation policy” exists that requires the U.S. to avoid offending other nations through the enforcement of its immigration laws, Judge Bea observed that “[t]he majority would have us believe that Congress has provided the Executive with the power to veto any state law which happens to have some effect on foreign relations.”

Judge Bea also took aim at the argument that Arizona had attempted to adopt “its own immigration policy” by passing S.B. 1070. He pointed to various federal laws that provided for state involvement in immigration enforcement. Specifically, he cited 8 U.S.C. 1357(g)(10), which states that local authorities do not need federal permission to cooperate with the Attorney General “in the identification, apprehension, detention, or removal of” unlawfully present aliens, and 8 U.S.C. 1373(c), which requires the federal government to respond to inquiries from state or local officials about a person’s immigration status.

These laws, Judge Bea argued, constituted a federal policy of encouraging “the free flow of immigration status information between federal and local governments.” Arizona’s law simply “embraces and furthers this federal policy,” and thus “any negative effect on foreign relations … is due not to Arizona’s law, but to the laws of Congress.”

Judge Bea concluded that the majority’s arguments about preemption only made sense if one accepts the premise that:

“The complaining federal authorities do not want to enforce the immigration laws regarding the presence of illegal aliens, and do not want any help from the state of Arizona that would pressure federal officers to have to enforce those immigration laws.”

While expressing no opinion as to the intent of the Executive, he did not believe that this premise could accurately reflect the intent of Congress when it passed the above mentioned laws.

In a joint statement issued shortly after the Ninth Circuit’s ruling, Arizona Governor Jan Brewer and Attorney General Tom Horne vowed to go on defending the law and praised Judge Bea’s dissent. According to Gov. Brewer:

“It is outrageous that the Ninth Circuit Court would grant foreign nations the de facto right to veto the duly-enacted laws of a sovereign state of the United States … Judge Bea was correct in his dissent when he wrote that ‘a foreign nation may not cause a state law to be pre-empted simply by complaining about the law’s effects on foreign nations.’ Today’s decision is internationalism run amok that ranks right up there with the U.S. State Department’s decision to refer S.B. 1070 to the United Nations Human Rights Council.” [Press Release, Office of the Governor of Arizona, Joint Statement by Governor Brewer and AG Tom Horne Regarding Monday’s 9th Circuit Court Decision on SB 1070, April 11, 2011]

While the law’s ultimate fate remains uncertain, there is no doubt that the fight over it will continue.