There’s something funky about the Justice Department’s lawsuit to invalidate Arizona’s immigration legislation. I keep thinking about Roe v. Wade and the right to abortion. Could it be that federalism is in its death throes? Arizona’s immigration law requires lawmen to inquire about the immigration status of people otherwise detained. The bill is really a thinly disguised invitation to profile. On its face, the law merely requires questions to be asked about a person’s immigration status when officers have reasonable suspicion to believe they are here illegally. The law does not authorize a stop to determine immigration status: police will have to cook up a reason for the stop. That’s never hard for a creative cop.The Justice Department filed suit arguing that Arizona is stepping on federal toes. Federal law governs immigration, and thus, the argument goes, federal law pre-empts state law. The states must refrain from acting.Except, of course, Arizona argues that the federal government is asleep at the border. Because the federal government either cannot or will not act, Arizona must act. Futility defeats preemption.Maybe it does. Federalism is the uneasy marriage of state and federal sovereigns. The marriage fails when one partner sleeps ignores its vows. Arizona knows it cannot secede from the Union, several states tried that long ago. But the state can step up and do the work Uncle Sam refuses to do. At least that is the theory.So what has this to do with abortion?I support a woman’s right to choose but am at the same time embarrassed by Roe v. Wade. The decision is a conceptual mess. Rooting the right to abort in inferences drawn from reading the Bill of Rights is a weakly brew tea. What business has the federal government, the partner of enumerated powers, telling the states how to use its police powers? Much though I love the decision as a piece of political philosophy, it is difficult to square with traditional doctrines of federalism.And there is the rub: Arizona’s immigration law is also difficult to reconcile with federalism. Both left and right have now found common ground in mistrust of federalist doctrine. Can this be a watershed moment in which the federal Constitution molts and sheds the horse and buggy era in favor of something better able to meet the needs of the twenty-first century?Why not face the fact that states are largely administrative units of the federal government, responding to federal financing incentives to regulate all that is affected by interstate commerce. (That is virtually everything.) Almost all of the amendments in the Bill of Rights have now been incorporated against, or applied to, the states. Just last month the Second Amendment right to bear arms was finally incorporated. Why not incorporate the Ninth Amendment?This forgotten amendment reserves to the states and the people powers not given to the federal government. The amendment has never been given its due; it is called a mere rule of interpretation. Can litigation advance claiming that the people, in the end, retain rights as against both state and federal governments, and that these rights can be vindicated in federal court?It’s a long shot. But it could justify Roe and an effort to enforce immigration laws in a way federalism cannot. I say face facts and put federalism to death. It would take a revolution in the law do accomplish this, and repeal of the Tenth Amendment. But what do we have to lose except a convoluted body of law?
Reprinted courtesy of the Connecticut Law Tribune.