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Wednesday, December 22, 2010

Arizona's Immigration Bill

Sent: 4/24/2010 5:15:42 P.M. Pacific Daylight Time
Subj: Arizona's immigration Bill

I agree with those who say that Arizona's new Immigration bill it’s likely trumped by the Supremacy Clause — Congress has plenary authority over immigration, and though it’s not entirely settled — is there a “dormant immigration clause?” — that’s the way to bet.

But it occurs to me that there’s another clause in the Constitution that may be relevant: Article IV Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Were I representing Arizona, I’d argue that the federal government is in default on its “protection against invasion” responsibility, and that this empowers the state to resort to self-help.

Not sure how that would play out, but it would make an interesting law review article. And a fun oral argument.


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