Preemption and SB1070

Jack Balkin writes his take on the federal lawsuit against SB1070 and makes a good point that while Arizona claims to simply enforce existing federal law, Arizona has also strongly argued that SB1070 is also and attempt to provoke the federal government into action. The resulting relationship is anything but cooperative, and contrary to the language of the law.

The Arizona legislature appears to be saying, in effect: “since you won’t police the borders, we will, and if you don’t like it, pass some new legislation.” If this is the point of the new Arizona law, then the law isn’t really an attempt at cooperation but an attempt at provocation and one-upmanship, and the chances that it is preempted increase.


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