Federal Pre-emption

Enforcing Federal Law As It Ought to Be

I understand federal pre-emption. I support federal pre-emption in the areas where it applies. I even agree that it applies with particular force and reason in areas like immigration. It's just that I think the federal law that enjoys pre-emptive power should be the actual federal law that's been passed by Congress and stuff.

Here's the money quote from the DOJ's July 6 brief in the Alternative Universe that is the Arizona immigration enforcement lawsuit:

Although a state may adopt regulations that have an indirect or incidental effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration law.

That actually sounds pretty good to me. The part I don't get is why the feds who happen to be in office this year get to establish their own version of "federal immigration law" without complying with all those tiresome procedures for amending the laws on the books.

Here's how it seems to work: You're a Sanctuary City? No problem of any kind. You're doing the Lord's work. You're in accord with the Immigration Law As It Would Exist in a Just Universe. We, the feds, have the exclusive right to ordain what that is using only the power of our own minds. But over there, you're a Non-Sanctuary State? Knock it off. You're acknowledging the force of the law as written, which is an intolerable intrusion into the majesty of our federal powers.

The fact is, though, I'm pretty encouraged today by the tone of the federal district judge's questions, which show a healthy skepticism about the DOJ's case.