Federalism, Immigration, and Interjurisdictional Competition

Temple law professor Peter Spiro has an interesting New York Times column arguing that supporters of immigration should not fear a Supreme Court decision upholding Arizona’s draconian anti-illegal immigrant law, because interjurisdictional competition is likely to take care of the problem. By contrast, he fears that if the Court strikes down the law, the result could be the enactment of much more dangerous federal legislation:

Arizona is one of several states, including Alabama, Georgia, South Carolina and Indiana, that, frustrated by Congress’s idling on immigration reform, have challenged federal authority by taking it upon themselves to devise draconian policies for undocumented immigrants….

Such laws are misguided at best, mean-spirited and racially tainted at worst. The conventional wisdom among immigration advocates is that immigrant interests will be best served if the Supreme Court makes an example of Arizona’s law by striking it down.

But in the long run, immigrant interests will be better helped if the Supreme Court upholds S.B. 1070….

Undocumented immigrants may themselves be politically powerless, but they have powerful allies. In Alabama and Georgia, dismayed farmers have watched crops rot in the fields for want of immigrant labor. Arizona is estimated to have lost more than $140 million from convention cancellations made in protest.

Even more important is the prospect of lost foreign investment. Caught in the net of Alabama’s law in November was a German Mercedes-Benz executive, who left his passport at home while out for a drive and as a result found himself in a county jail. Mercedes has a plant in Tuscaloosa that employs thousands of Alabamians and adds many hundreds of millions of dollars to the state economy. That embarrassment will make the next foreign company think twice as it scouts out a location for a manufacturing facility in the United States….

In those states that have enacted laws, there are moves to roll them back. The Alabama House of Representatives has approved a Republican-sponsored bill to soften its current law….

Even if some of these state immigration laws survive political, corporate and consumer opposition on the ground, it’s better to have the scattered imposition of state laws than the blanket coverage of a federal measure. Other states and localities are welcoming immigrants, legal or not. That fact gets lost in the common indictment of state and local immigration measures as a “patchwork.” One of federalism’s core virtues is the possibility of competition among states. Competition in this context is likely to vindicate pro-immigrant policies.

I am much less certain than Spiro that a decision striking down the Arizona law is likely to be followed by punitive federal legislation. Congress is deeply divided on the subject, and the Obama administration is likely to oppose any such law. Even if Mitt Romney becomes president and has a narrow Republican congressional majority, passage of draconian federal legislation is far from certain, especially given the large number of competing political priorities that a new GOP administration would face.

That said, Spiro is right to suggest that interjurisdictional competition is likely to constrain the spread of Arizona-style illegal immigration laws, and possibly lead to the repeal or reform of some of the laws already enacted in various states. Even if a few states do retain these sorts of laws, businesses and individuals can effectively “vote with their feet” against them by moving to other states. As Spiro points out, this makes ill-advised state laws in this field much less dangerous than comparable federal ones.

UPDATE: I have revised some parts of this post for clarity.

UPDATE #2: I should note that there is one way in which the Arizona immigration law may be worse than a comparable federal law would be. I explained in detail in this 2010 post.