Barack Obama delivers a statement after the Supreme Court blocked his illegal immigrant work permit plan, June 23, 2016. (Carlos Barria/Reuters)

By successfully asserting the primacy of federal law over state law before the Supreme Court, Obama’s DOJ may have thwarted California’s attempt to ‘resist’ Trump administration immigration policy.

American political parties have an enduring and deeply cynical love/hate relationship with federalism. When the opposing party occupies the White House, the Founders’ vision of sovereign states and a limited federal government suddenly has an alluring appeal. Retake the White House, and it becomes time for the states to fall into line.


California progressives have been loving federalism lately. While they’ve pushed through a number of policies specifically designed to fight the Trump administration, few have garnered more headlines than the state’s comprehensive statutory scheme to limit cooperation with federal immigration authorities. The statutes don’t block the federal government from enforcing federal law. They do, however, limit the extent to which federal authorities can depend on California citizens and state officials to affirmatively assist in executing the federal mission.

So that’s federalism, right? While it’s clear that states can’t nullify federal laws, in the absence of conflicting federal statutes, can’t California enact immigration policies that advance its own, unique state interests?

It appears not. Ironically enough, thanks to a determined litigation effort by Obama’s Department of Justice, progressives handed the Trump administration a legal club that will likely beat down California’s attempt to go its own way: A Supreme Court precedent. And yesterday, the Trump DOJ picked up that club, suing California to block its new statutes.



You see, way back in 2012 the two parties had very different views of federalism. The GOP wanted to dissent from Obama’s immigration policies, and the Obama administration very much wanted to impose its own version of uniform, national rule. The state of Arizona, facing multiple challenges from a swelling illegal-immigrant population, enacted a statute that essentially created enhanced penalties for illegal immigration and granted state officials new powers to enforce existing federal law.

In other words, it was the mirror image of the California effort. Arizona’s statute didn’t conflict with federal law; it was just different from federal law, reflecting the state’s sovereign priorities. The Obama administration sued, taking the case all the way to the Supreme Court. On June 25, 2012, the Court struck down the key provisions of the Arizona law. Justice Kennedy wrote the opinion, and it was sweeping in its language and scope.

Essentially, Kennedy ruled that Congress — through its comprehensive statutory scheme — had “occupied the field” of alien registration and thus “even complementary state regulation is impermissible.” (Emphasis added.) This so-called “field preemption” reflects “a congressional decision to foreclose any state regulation in the area [preempted], even if it is parallel to federal standards.” After waxing eloquent about the importance of immigration in the American national story, Kennedy’s opinion goes on to conclude that “Arizona may have understandable frustrations with the problems caused by illegal immigration . . . but the State may not pursue policies that undermine federal law.”

Justice Antonin Scalia wrote an opinion concurring in part and dissenting in part, and it was classic Scalia. It surveyed relevant American constitutional history, discussed the nature of state sovereignty, and reached a conclusion that California would almost certainly like to cling to today:

In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration — and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation — when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.

Under the Kennedy framework, California law likely goes down in flames. If Arizona’s efforts at creating complementary policy were impermissible, then California faces an immense challenge justifying a policy that is quite explicitly designed to undermine federal enforcement. According to Kennedy’s reasoning (adopted by Roberts, Breyer, Ginsburg, and Sotomayor), federal statutes are precisely designed to accomplish national goals — goals that no state can undermine.

True federalism could temper polarization by empowering self-governance. Cynical, fake federalism divides us with its dishonesty.

Scalia’s reasoning, firmly rooted in American constitutional tradition, represents federalism as the Founders intended. The Founders recognized that America wasn’t a single sovereign entity but rather a unified nation comprising multiple distinct and different states with their own sovereign interests. The federal government is supreme, but in the absence of conflict with federal law, the states have considerable discretion to fashion their own policies. They are, after all, different in history, politics, geography, and culture.


But the Founders’ vision is largely lost. Federalism has become just another constitutional means to an ideological end, a way of accomplishing locally what you can’t accomplish nationally. It’s a defense mechanism when you’re out of power and an annoyance when you’re in power. That’s why the Obama administration sued Arizona, and the Trump administration is suing California. That’s why the same progressives who cheered the Obama administration’s SCOTUS victory in 2012 will complain bitterly if the Trump administration wins its suit in 2018. And that’s why all too many conservatives who supported Arizona now want to bring down the hammer on California.

It will take more time and more pain before Americans on both sides (hopefully) remember the wisdom of the Founders and understand that centralized control of an ideologically diverse and polarized nation is not only elusive but destructive. True federalism could temper polarization by empowering self-governance. Cynical, fake federalism divides us with its dishonesty. I’m with Scalia. California should be able go its own way. But will Californians support Arizona’s right to go its own way when and if the roles are once again reversed? I’m not holding my breath.