Arizona

Arizona in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): As discussed in World Encyclopedia of Law 2010 at 163-68, the United States sought and obtained a preliminary injunction barring enforcement of certain provisions of an Arizona law, S.B. 1070, in the U.S. District Court for the District of Arizona in 2010. On April 11, 2011, the U.S. Court of Appeals for the Ninth Circuit agreed with the district court's holding that those provisions of S.B. 1070 are preempted by federal immigration law and upheld the preliminary injunction. United States v. Arizona, 641 F.3d 339 (9th Cir. 2011). In the portion of the court's opinion excerpted below, the court considered foreign policy concerns about the Arizona law, with reference to the declaration by Deputy Secretary of State James B. Steinberg submitted by the United States in the district court. In December 2011, the United States Supreme Court granted certiorari in the case. Arizona v. United States, No. 11-182, 2011 WL 3556224 (2011).

Developments

…[T]he record unmistakably demonstrates that S.B. 1070 has had a deleterious effect on the United States' foreign relations, which weighs in favor of preemption. See generally [Am. Ins. Ass'n v.] Garamendi, 539 U.S. 396, 123 S.Ct. 274 [(2003)] (finding obstacle preemption where a State law impinged on the Executive's authority to singularly control foreign affairs); Crosby [v. National Foreign Trade Council], 530 U.S. 363, 120 S.Ct. 2288 [(2000)] (same). In Garamendi, the Court stated that “even … the likelihood that state legislation will produce something more than incidental effect in conflict with express foreign policy of the National Government would require preemption of the state law.” 539 U.S. at 420, 123 S.Ct. 2374 (emphasis added).

The record before this court demonstrates that S.B. 1070 does not threaten a “likelihood … [of] produc[ing] something more than incidental effect;” rather, Arizona's law has created actual foreign policy problems of a magnitude far greater than incidental. Garamendi, 539 U.S. at 419, 123 S.Ct. 2374 (emphasis added). Thus far, the following foreign leaders and bodies have publicly criticized Arizona's law: The Presidents of Mexico, Bolivia, Ecuador, El Salvador, and Guatemala; the governments of Brazil, Colombia, 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.

Details

In addition to criticizing S.B. 1070, Mexico has taken affirmative steps to protest it. As a direct result of the Arizona law, at least five of the six Mexican Governors invited to travel to Phoenix to participate in the September 8–10, 2010 U.S.-Mexico Border Governors' Conference declined the invitation. The Mexican Senate has postponed review of a U.S.-Mexico agreement on emergency management cooperation to deal with natural disasters.

In Crosby, the Supreme Court gave weight to the fact that the Assistant Secretary of State said that the state law at issue “has complicated its dealings with foreign sovereigns.” 530 U.S. at 383–84, 120 S.Ct. 2288. Similarly, the current Deputy Secretary of State, James B. Steinberg, has attested that S.B. 1070 “threatens at least three different serious harms to U.S. foreign relations.” In addition, the Deputy Assistant Secretary for International Policy and Acting Assistant Secretary for International Affairs at DHS has attested that Arizona's immigration law “is affecting DHS's ongoing efforts to secure international cooperation in carrying out its mission to safeguard America's people, borders, and infrastructure.” The Supreme Court's direction about the proper use of such evidence is unambiguous: “statements of foreign powers necessarily involved [,] … indications of concrete disputes with those powers, and opinions of senior National Government officials are competent and direct evidence of the frustration of congressional objectives by the state Act.” Crosby, 530 U.S. at 385, 120 S.Ct. 2288. Here, we are presented with statements attributable to foreign governments necessarily involved and opinions of senior United States' officials: together, these factors persuade us that Section 2(B) thwarts the Executive's ability to singularly manage the spillover effects of the nation's immigration laws on foreign affairs.

Resources

See Also

• Foreign Relations
• Constitutionality
• Immigration