Is it “Justice Brennan v. President Obama” in Arizona?


The fate of the Justice Department’s lawsuit filed last week challenging Arizona’s new law targeting illegal immigrants may well hinge on a 1976 opinion written by Justice Brennan.

The Arizona law, which is scheduled to go into effect on July 29, makes failing to carry documentation of one’s immigration status a crime and gives police in the state broad power to detain those in the country illegally.

A central argument in the constitutional challenge filed by the Justice Department in a federal court in Phoenix is the doctrine of preemption, which governs whether federal law trumps ones enacted by states.

As Yale Law School’s Jack Balkin noted in an April post on his Balkinization blog, “the leading Supreme Court case on preemption of state immigration law” is De Canas v. Bica. Brennan wrote the unanimous (8-0) decision upholding a California law that made it a crime to knowingly hire illegal aliens.

Balkin concluded that “it’s anybody’s guess about what the current Supreme Court would think about the issue” since the decision in De Canas “is now thirty five years old and predates recent federal immigration reforms.”

But conservative writers such as Ann Coulter are citing the case as definitive proof the Justice Department is on the wrong side of Supreme Court precedent. And they’re taking a certain amount of glee in pointing out that Brennan is the one who wrote the opinion.

In a July 14 article titled “Justice Brennan v. President Obama,” on the Daily Caller website, Kendrick MacDowell cites De Canas as “the case that is the chief rebuke of DOJ’s current legal theory.”

MacDowell quotes a lengthy excerpt from Brennan’s opinion before concluding, “It will be interesting to watch Obama’s Justice Department jousting with Justice Brennan.”

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