Law at the End of the Day

Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Monday, November 17, 2014

Chapter 15 ( The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the next chapter of Part III (Institutional Architecture of Law and Governance: The United States and Law Making) -- Chapter 15 (The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution).

Chapter 15

The Federal-State Interplay, the 9th and 10th

Amendments of the Federal Constitution

I. Introduction.

We have been considering the way in which law shapes the exercise of politics within the federal government. We have also considered how this legalization not merely legalizes the organization of the state, but has begun to define the relationship between the organs of state power and the availability of protection of fundamental rights. That relationship itself evidences the great tension between the American embrace of notions of popular sovereignty and its expression only through law (starting with the constitution as its highest expression) on the one hand, and the American embrace of the notion that government is formed out of higher law which itself may not be constrained by government and its law (even its constitution).

One of the most important constraints on the power of the national government is the residual power reserved to the states. Traditionally, this vertical power relationship was politically constrained by the method used to organize government. The heart of that political constraint was meant to be built into the organization of the Senate, which was to represent the political interests of the states in the federal government. Effectively, at least before the beginning of the 20^th century, federal legislative action could not be undertaken without the consent of a majority of states represented in the Senate (Article I, § 3, Clauses 1 and 2). That relationship has been altered with the adoption of the 17^th Amendment, which provided for the direct election of senators.

That change has provided the necessity for a greater legalization of the relationship between the federal government and the states as well. It is to that legalization that this chapter turns. For that purpose we consider the legal position of the subsidiary units of government in the United States and their relationship to federal power. This relationship is drawn through a legalization of the principles of “federalism”. Those principles, themselves, suggest the elasticity of American law.

Vertical constraints on the federal government is not merely suggested by the residuary power of the states. Federalism is itself just an expression of the popular will to organize the state, one in which popular sovereignty might remain potent It is also held by the people. Those principles of vertical residuary power is suggested by the 9^th and 10^th Amendments to the federal constitution.

II. Chapter Readings

·      U. S. Constitution Amendments 9 and 10

·      Gonzalezv. Raich,[1] 545 U.S. 1 (2005)

Supreme Court of the United States

Alberto R. GONZALES, Attorney General, et al., Petitioners,
v.
Angel McClaryRAICH et al.

No. 03-1454.

Argued Nov. 29, 2004.
Decided June 6, 2005.

[Available at: http://www.law.cornell.edu/supct/html/03-1454.ZS.html]

Justice STEVENS delivered the opinion of the Court.

California is one of at least nine States that authorize the use of marijuana for medicinal purposes. The question presented in this case is whether the power vested in Congress by Article I, § 8, of the Constitution “[t]o make all Laws which shall be necessary and proper for carrying into Execution” its authority to “regulate Commerce with foreign Nations, and among the several States” includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.

I

California has been a pioneer in the regulation of marijuana. In 1913, California was one of the first States to prohibit the sale and possession of marijuana, and at the end of the century, California became the first State to authorize limited use of the drug for medicinal purposes. In 1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996. The proposition was designed to ensure that “seriously ill” residents of the State have access to marijuana for medical purposes, and to encourage Federal and State Governments to take steps toward ensuring the safe and affordable distribution of the drug to patients in need. * * * *

Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of serious medical conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents’ conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors’ recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich’s physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal.

Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as “John Does,” to provide her with locally grown marijuana at no charge. * * * *

On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson’s home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants.

Respondents thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), 84 Stat. 1242, 21 U.S.C. § 801 et seq., to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. * * * * *

The District Court denied respondents’ motion for a preliminary injunction. Raich v. Ashcroft, 248 F.Supp.2d 918 (N.D.Cal.2003). * * * * * A divided panel of the Court of Appeals for the Ninth Circuit reversed and ordered the District Court to enter a preliminary injunction. Raich v. Ashcroft, 352 F.3d 1222 (2003). * * * * *

The obvious importance of the case prompted our grant of certiorari. 542 U.S. 936, 124 S.Ct. 2909, 159 L.Ed.2d 811 (2004). The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals.

II

Shortly after taking office in 1969, President Nixon declared a national “war on drugs.” As the first campaign of that war, Congress set out to enact legislation that would consolidate various drug laws on the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit drugs. That effort culminated in the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236.

This was not, however, Congress’ first attempt to regulate the national market in drugs. Rather, as early as 1906 Congress enacted federal legislation imposing labeling regulations on medications and prohibiting the manufacture or shipment of any adulterated or misbranded drug traveling in interstate commerce. Aside from these labeling restrictions, most domestic drug regulations prior to 1970 generally came in the guise of revenue laws, with the Department of the Treasury serving as the Federal Government’s primary enforcer. For example, the primary drug control law, before being repealed by the passage of the CSA, was the Harrison Narcotics Act of 1914, 38 Stat. 785 (repealed 1970). The Harrison Act sought to exert control over the possession and sale of narcotics, specifically cocaine and opiates, by requiring producers, distributors, and purchasers to register with the Federal Government, by assessing taxes against parties so registered, and by regulating the issuance of prescriptions.

Marijuana itself was not significantly regulated by the Federal Government until 1937 when accounts of marijuana’s addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state and local levels, prompted Congress to pass the Marihuana Tax Act, 50 Stat. 551 (repealed 1970). * * * * Then in 1970, after declaration of the national “war on drugs,” federal drug policy underwent a significant transformation. A number of noteworthy events precipitated this policy shift. First, in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), this Court held certain provisions of the Marihuana Tax Act and other narcotics legislation unconstitutional. Second, at the end of his term, President Johnson fundamentally reorganized the federal drug control agencies. The Bureau of Narcotics, then housed in the Department of the Treasury, merged with the Bureau of Drug Abuse Control, then housed in the Department of Health, Education, and Welfare (HEW), to create the Bureau of Narcotics and Dangerous Drugs, currently housed in the Department of Justice. Finally, prompted by a perceived need to consolidate the growing number of piecemeal drug laws and to enhance federal drug enforcement powers, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act.

Title II of that Act, the CSA, repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs. The main objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances. Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels.

To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U.S.C. §§ 841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. § 812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. §§ 811, 812. Each schedule is associated with a distinct set of controls regarding the manufacture, distribution, and use of the substances listed therein. §§ 821-830. The CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. Ibid.; 21 CFR § 1301 et seq. (2004).

In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U.S.C. § 812(c). This preliminary classification was based, in part, on the recommendation of the Assistant Secretary of HEW “that marihuana be retained within schedule I at least until the completion of certain studies now underway.” Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1). * * * *The CSA provides for the periodic updating of schedules and delegates authority to the Attorney General, after consultation with the Secretary of Health and Human Services, to add, remove, or transfer substances to, from, or between schedules. § 811. Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug.

III

Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress’ commerce power. Brief for Respondents 22, 38. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents’ challenge is actually quite limited; they argue that the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress’ authority under the Commerce Clause.

* * * *

Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151, 91 S.Ct. 1357;Wickard v. Filburn, 317 U.S. 111, 128-129, 63 S.Ct. 82, 87 L.Ed.122 (1942). As we stated in Wickard,“even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”Id., at 125, 63 S.Ct. 82. We have never required Congress to legislate with scientific exactitude. When Congress decides that the “‘total incidence’“ of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U.S., at 154-155, 91 S.Ct. 1357 ( “‘[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so’“(quoting Westfall v. United States, 274 U.S. 256, 259, 47 S.Ct. 629, 71 L.Ed. 1036 (1927))). In this vein, we have reiterated that when “‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’“E.g., Lopez, 514 U.S., at 558, 115 S.Ct. 1624 (quoting Maryland v. Wirtz, 392 U.S. 183, 196, n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); emphasis deleted).

Our decision in Wickard, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122, is of particular relevance. * * * * * Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. * * * * Nonetheless, respondents suggest that Wickard differs from this case in three respects: (1) the Agricultural Adjustment Act, unlike the CSA, exempted small farming operations; (2) Wickard involved a “quintessential economic activity”-a commercial farm-whereas respondents do not sell marijuana; and (3) the Wickard record made it clear that the aggregate production of wheat for use on farms had a significant impact on market prices. Those differences, though factually accurate, do not diminish the precedential force of this Court’s reasoning.

* * * *

Findings in the introductory sections of the CSA explain why Congress deemed it appropriate to encompass local activities within the scope of the CSA. See n. 20, supra. The submissions of the parties and the numerous amici all seem to agree that the national, and international, market for marijuana has dimensions that are fully comparable to those defining the class of activities regulated by the Secretary pursuant to the 1938 statute. * * * *

In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding. Lopez, 514 U.S., at 557, 115 S.Ct. 1624; * * * * Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. § 801(5), and concerns about diversion into illicit channels,we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce ... among the several States.” U.S. Const., Art. I, § 8. That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme.

* * * *

IV

To support their contrary submission, respondents rely heavily on two of our more recent Commerce Clause cases. In their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases. Moreover, even in the narrow prism of respondents’ creation, they read those cases far too broadly.

* * * *

First, the fact that marijuana is used “for personal medical purposes on the advice of a physician” cannot itself serve as a distinguishing factor. Id., at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Moreover, the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner. Indeed, most of the substances classified in the CSA “have a useful and legitimate medical purpose.”21 U.S.C. § 801(1). Thus, even if respondents are correct that marijuana does have accepted medical uses and thus should be redesignated as a lesser schedule drug, the CSA would still impose controls beyond what is required by California law.

* ** *

Second, limiting the activity to marijuana possession and cultivation “in accordance with state law” cannot serve to place respondents’ activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is “‘superior to that of the States to provide for the welfare or necessities of their inhabitants,’“ however legitimate or dire those necessities may be. * * * *

Respondents acknowledge this proposition, but nonetheless contend that their activities were not “an essential part of a larger regulatory scheme” because they had been “isolated by the State of California, and [are] policed by the State of California,” and thus remain “entirely separated from the market.”Tr. of Oral Arg. 27. The dissenters fall prey to similar reasoning. See n. 38, supra this page. The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected.

* * * * Thus the case for the exemption comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the findings in the CSA and the undisputed magnitude of the commercial market for marijuana, our decisions in Wickard v. Filburn and the later cases endorsing its reasoning foreclose that claim.

V

* * * * We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress. Under the present state of the law, however, the judgment of the Court of Appeals must be vacated. The case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice SCALIA, concurring in the judgment.

* * * * *

Justice O’CONNOR, with whom THE CHIEF JUSTICE and Justice THOMAS join as to all but Part III, dissenting.

We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. United States v. Lopez, 514 U.S. 549, 557, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed.893 (1937). One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting).

This case exemplifies the role of States as laboratories. The States’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Whalen v. Roe, 429 U.S. 589, 603, n. 30, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause-nestling questionable assertions of its authority into comprehensive regulatory schemes-rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez, supra, and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Accordingly I dissent.

I

In Lopez, we considered the constitutionality of the Gun-Free School Zones Act of 1990, which made it a federal offense “for any individual knowingly to possess a firearm ... at a place that the individual knows, or has reasonable cause to believe, is a school zone,”18 U.S.C. § 922(q)(2)(A). We explained that “Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”514 U.S., at 558-559, 115 S.Ct. 1624 (citation omitted). This power derives from the conjunction of the Commerce Clause and the Necessary and Proper Clause. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 585-586, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (O’CONNOR, J., dissenting) (explaining that United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941), United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942), and Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), based their expansion of the commerce power on the Necessary and Proper Clause, and that “the reasoning of these cases underlies every recent decision concerning the reach of Congress to activities affecting interstate commerce”); ante, at 2215-2216 (SCALIA, J., concurring in judgment). We held in Lopez that the Gun-Free School Zones Act could not be sustained as an exercise of that power.

Our decision about whether gun possession in school zones substantially affected interstate commerce turned on four considerations. Lopez, supra, at 559-567, 115 S.Ct. 1624;see also Morrison, supra, at 609-613, 120 S.Ct. 1740. First, we observed that our “substantial effects” cases generally have upheld federal regulation of economic activity that affected interstate commerce, but that § 922(q) was a criminal statute having “nothing to do with ‘commerce’ or any sort of economic enterprise.”Lopez, 514 U.S., at 561, 115 S.Ct. 1624. In this regard, we also noted that “[s]ection 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.”Ibid. Second, we noted that the statute contained no express jurisdictional requirement establishing its connection to interstate commerce. Ibid.

Third, we found telling the absence of legislative findings about the regulated conduct’s impact on interstate commerce. We explained that while express legislative findings are neither required nor, when provided, dispositive, findings “enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye.”Id., at 563, 115 S.Ct. 1624. Finally, we rejected as too attenuated the Government’s argument that firearm possession in school zones could result in violent crime which in turn could *45 adversely affect the national economy. Id., at 563-567, 115 S.Ct. 1624. The Constitution, we said, does not tolerate reasoning that would “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”Id., at 567, 115 S.Ct. 1624. Later in Morrison, supra, we relied on the same four considerations to hold that § 40302 of the Violence Against Women Act of 1994, 108 Stat. 1941, 42 U.S.C. § 13981, exceeded Congress’ authority under the Commerce Clause.

In my view, the case before us is materially indistinguishable from Lopez and Morrison when the same considerations are taken into account.

* * * *

Justice THOMAS, dissenting.

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything-and the Federal Government is no longer one of limited and enumerated powers.

I

* * * *

III. The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution

With this reading we end our short review of the architecture of the American law-state. We have come to understand that law occupies a space both within and outside the government (and to some extent outside the state as well). We have seen how American “higher law” has been used to structure the government, constrain the scope of its substantive powers and manage the application of politics to the operation of the state apparatus through law. We have seen how the power of government has been fractured horizontally in three functionally distinct categories, and vertically between a general government of specified powers and a residual power of government exercised by states whose own residual power is made subordinate to and exercised under the leadership of the general government. We have examined the application of notions of rule of law not just to understand the limits of government’s power (under law) to deprive individuals of their life, liberty or property interests, but also how law has been used as structural constraints on politics. That “higher law” of the constitution is grounded in fundamental principles—separation of powers, checks and balances and federalism—that are in turn principled manifestation of fundamental political premises of the American union, a premise that government must be efficient, but also that governmental power must not be aggregated sufficiently to make tyranny (arbitrary government not grounded on law) possible. To that end we have begun to understand the political us of law by courts to ensure fidelity to the legal basis of government. And we have been introduced to two important interpretive approaches used by courts—formalism and functionalism. These we have explored in the application of law to resolve disputes about the boundaries of legislative and presidential power, of the place of administrative agencies within the divided power system of the federal government, and the tension between the extent of the power of direct or popular democracy and federal constraints on law making (even when a majority of people desire it).

Today we end our exploration of the construction of the American law state with an introductory consideration of federalism—the principle of vertical separation of powers. Federalism describes the legal framework within which the political interplay between the specific power of the general government and the residual power of states play out. Two constitutional provisions might, at first glance, appear to provide a text for the specification of the arrangement of federalism as a principle of separation of powers between a general government and those of the constituent states of the Union. The 9th Amendment[2] provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The 10th Amendment[3] provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Both suggest both principle and limitation. One has confined the 9th Amendment to a means for reading the constitution, rather than an autonomous source of rights. Another has confined the 10th Amendment, to truism and principle:

while the Tenth Amendment[4] makes explicit that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; the task of ascertaining the constitutional line between federal and state power has given rise to many of the Court’s most difficult and celebrated cases. . . . If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress. . . . It is in this sense that the Tenth Amendment “states but a truism that all is retained which has not been surrendered.”United States v. Darby,[5] 312 U.S. 100, 124 (1941). . . . The Tenth Amendment likewise restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself, which, as we have discussed, is essentially a tautology. Instead, the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power. (New York v. U.S.,[6] 488 U.S. 1041 (1992)).

The 9^th Amendment has been subject to a similar construction by courts confounded with the problem (described in Chapter 8) of a national legal order that is grounded both (1) in the ideal of popular sovereignty expressed only through the organs of government and (2) in the ideal of a constitutional state established under law to protect the natural rights and fundamental liberties of the people (and not to define or constrain them even in a constitutional document). In United Public Workers Of America (C.I.O.) v. Mitchell, 330 U.S. 75 (1947), the Supreme Court, in affirming the power of the federal government to limit the political activity of federal workers under the Hatch Act,[7] substantially reduced the reach of the 9^th Amendment as a source of positive rights.

Fourth. This brings us to consider the narrow but important point involved in Poole's situation. 28 Poole's stated offense is taking an 'active part in political management or in political campaigns.' He was a ward executive committeeman of a political party and was politically active on election day as a worker at the polls and a paymaster for the services of other party workers. The issue for decision and the only one we decide is whether such a breach of the Hatch Act and Rule 1 of the Commission can, without violating the Constitution, be made the basis for disciplinary action.

When the issue is thus narrowed, the interference with free expression is seen in better proportion as compared with the requirements of orderly management of administrative personnel. Only while the employee is politically active, in the sense of Rule 1, must he withhold expression of opinion on public subjects. See note 6. We assume that Mr. Poole would be expected to comment publicly as committeeman on political matters, so that indirectly there is an attenuated interference. We accept appellant's contention that the nature of political rights reserved to the people by the Ninth and Tenth Amendments are involved. The right claimed as inviolate may be stated as the right of a citizen to act as a party official or worker to further his own political views. Thus we have a measure of interference by the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant under the First, Ninth and Tenth Amendments. And, if we look upon due process as a guarantee of freedom in those fields, there is a corresponding impairment of that right under the Fifth Amendment. Appellants' objections under the Amendments are basically the same.

* * *

Of course, it is accepted constitutional doctrine that these fundamental human rights are not absolutes. The requirements of residence and age must be met. The essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery. The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. Again this Court must balance the extent of the guarantees of freedom against a congressional enactment to protect a democratic society against the supposed evil of political partisanship by classified employees of government.

Thus the 9^th Amendment serves only as a reflection of the realities built around it in the federal constitution. It serves only to protect against power not otherwise granted to the federal government, power, which of course is otherwise invalid. The last great effort to read a grant of positive substantive rights into the 9^th Amendment came in Griswold v. Connecticut, 381 U.S. 479 (1965) in a concurrence by Justice Goldberg. The case was famous for the determination of a protected right of couples to manage their procreative activities without interference by the state. The basis for that decision remains controversial and thus unstable.

While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.

But such a view has never garnered a majority of justices’ support. The opposite, has been true. Justice Douglas in 1973 dismissed the relevance of the 9^th amendment in determining the rights of women to terminate pregnancy. “The Ninth Amendment obviously does not create federally enforceable rights.” (Doe v. Bolton, 410 U.S. 179 (1973) released with Roe v. Wade, (410 U.S. 113 (1973)).

The structural role reserved by the Courts to the 9^th and 10^th Amendments, then, becomes clear. Even though the principles identified in the 9th and 10th Amendments have not been used by the Supreme Court as a muscular foundation for creating structural constraints on the assertion of power by either states or the general government, their principles tend to be felt in the way in which the federal Courts develop legal standards by which to specific congressional powers are applied. To illustrate that pattern, we focus on one of the most important powers conferred on the general government, the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (U.S. Const. Art.[8] I Sec. 8).). “The Constitution does not explicitly define the word [commerce]. Some argue that it refers simply to trade or exchange, while others claim that the founders intended to describe more broadly commercial and social intercourse between citizens of different states. Thus, the interpretation of “commerce” affects the appropriate dividing line between federal and state power.” Legal Information Institute, Commerce Clause.[9]

Important Commerce Clause cases include Gibbons v. Ogden,[10] 22 U.S. 1 (1824) (general government has the power to regulate interstate navigation even when that regulation also touches on activity within a state); Champion v. Ames, 188 U.S. 321[11] (1903) (Commerce power extended to prohibiting commerce in certain goods, in this case shipping Paraguayan lottery tickets across state lines); Swift and Company v. United States,[12] 196 U.S. 375 (1905) (general government can regulate local commercial activity through the Sherman Anti-Trust Act[13] as long as the local activity was part of the current or stream of commerce between states); Houston E. & W. T. Ry. Co. v. United States,[14] 234 U.S. 342 (1914) (Commerce Power may be used to regulate purely intra state commerce if it is an inseparable part of interstate commerce or a “close and substantial relationship” to interstate commerce); NLRB v. Jones & Laughlin Steel Corp.,[15] 301 U.S. 1 (1937) (federal regulatory power extended to intra state activities that could cumulatively have a substantial effect on commerce); Heart of Atlanta Motel v. United States.[16] 379 U.S. 241 (1964) (commerce power could be used to apply an anti-discrimination statute to an establishment that served people in interstate travel and that could affect national policy); Katzenbach v. McClung,[17] 379 U.S. 274 (1964) (Commerce power extended to application of anti-discrimination statute to a local restaurant that served almost purely local customers where its food was ordered in interstate commerce); Perez v. U.S.,[18] 402 U.S. 146 (1971) (upholding conviction for loansharking, finding that a purely local activity might be subject to federal regulation when it belonged to an economic class of activities that have a substantial effect on commerce).

By the early 1970s, the doctrine appeared settled that Congress was free to regulate under the Commerce Power virtually any activity, whatever its character, as long as it might plausibly have some direct or indirect economic effect on interstate commerce or touch on the national interest in some way that might plausibly be connected eventually to economic activity. Indeed, after Heart of Atlanta and Katzenbach, there appeared to be little that the Congress could not regulate as “commerce.” As long as national policy was invoked and the plausibility of national effects of legislation could be asserted, it appeared unlikely that the Supreme Court would strike down a statute as beyond Congress’ Commerce Power. Yet there remained a persistent view that if this were the case then the residuary power of the states over the regulation of their own internal economies had been reduced to nothing, and that the general government, with the complicity of the federal courts, would have seized for itself the whole of the power to regulate any activity with an arguable eventual effect on commerce. The result would appear to breach the core anti-tyranny premise of the constitutional structure of the Republic.

However, in two recent cases, the Supreme Court has appeared to carve out a small constraint on the power of the general government to regulate activities. In the first, Lopez v. United States.[19] 514 U.S. 549 (1995), the Supreme Court appeared, for the first time since the early 1930s, to point to a limit on Congressional legislative authority under the Commerce Power. In that case the Court declared beyond Congress’ legislative power a provision of the Gun Free School Zones Act of 1990[20] that prohibited any individual from knowingly possessing a firearm at a place that the individual knows, or has reasonable cause to believe, is a “school zone” as defined by 18 U.S.C.[21] § 921(a)(25). The second, Morrison v. United States,[22] 529 U.S. 598 (2000), declared invalid the Violence Against Women Act[23] provisions that made domestic violence against women a federal crime.

The Commerce Clause has also been read to limit states in the exercise of their residual power to regulate purely intra-state economic activity. These limitations are grounded in the notion that while states are free to arrange their internal economies as they see fit, these arrangements may not be used to inhibit or discriminate against, in form or fact (that so formally or functionally) good, services or activities originating or flowing through other states. The cases through which this doctrine emerged out of over a century of interpreting the Commerce Clause are sometimes not easy to harmonize and reflect changes in the political realities of the nation as well as the customary expectations of its political economy. The arguments, however, are rarely framed in those terms. Rather, again because this interpretive exercise by the Courts involves the construction of a legal edifice to manage political choices in a context of vertically fractured or divided power, the decisions tend to develop and apply a number of schools of legal interpretation which we consider in the next section of the materials. These include variations on textualism (e.g., the language of the provision of principles derived from the text as a whole), originalism (e.g., original understanding of the text by its framers or common understanding at the time of enactment), and variations of living constitution interpretations (dynamic meaning; variations on functionalism grounded in current understanding or objectives of national policy). For a summary of cases see, e.g.[24]. This Dormant Commerce Clause power remains controversial.

The reading for today, Gonzalez v. Raich,[25] 545 U.S. 1 (2005) illustrates the current complexion of analysis undertaken by the federal courts in determining contests between states and the general government over federalism—usually brought up by states contesting what they believe may be federal government encroachment of the residuary power of states. The issue remains a lively one and provides a good example of the interpretive techniques that courts use to frame in legal terms the political settlement represented by federalism as a premise of constitutional government in the United States.

The case involved a fairly contentious social and political issue of the early decades of the 21st century—the unraveling of the 20th century consensus on the control and prohibition of the use of certain substances deemed dangerous by the state. In this case, the issue centered ion the efforts by the state of California to permit the medical use of marijuana in contravention of a general federal prohibition against the use of the substance.

California has been a pioneer in the regulation of marijuana. In 1913, California was one of the first States to prohibit the sale and possession of marijuana and at the end of the century, California became the first State to authorize limited use of the drug for medicinal purposes. In 1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996.The proposition was designed to ensure that “seriously ill” residents of the State have access to marijuana for medical purposes, and to encourage Federal and State Governments to take steps toward ensuring the safe and affordable distribution of the drug to patients in need. * * * *

Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of serious medical conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents’ conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors’ recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich’s physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal.

Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as “John Does,” to provide her with locally grown marijuana at no charge. * * * *

On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson’s home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants. (Gozalez,supra).

Raich and Monson then brought an action against the U.S. Attorney General as the head of the Drug Enforcement Administration[26] in a federal district court seeking to enjoin enforcement of the federal Controlled Substances Act[27] (CSA), 84 Stat. 1242, 21 U.S.C. § 801 et seq., under which their marijuana had been seized. The district court denied the motion for a preliminary injunction[28] but was reversed by a divided 9th Circuit, which ordered the entry of the injunction. In an opinion that clearly indicated the view that the application of the law in this case was ill advised (“The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes” Gonzalez, supra), a majority of justices, over a strong dissent, held that Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally, that the CSA was a valid exercise of federal power. (Gonzalez, supra). The question of where the courts draw the border between federalism’s power fracture principles and the general government’s power to regulate interstate commerce under its specified powers where the activities regulated are purely local suggests both the tensions in the legal construction of the American political system, the limits of law as a mechanism for regulating those tensions and the malleability of constitutional text, even when applied formally.

The majority opinion is an excellent example of common law constitutionalism. It is formalist in the sense that it applies the law strictly even where it is clear that this application may be at odds with either intention or objective. It is distinguished from the textual formalism of Justice Black’s opinion in the Steel Seizure Case[29] studied earlier because in this case the opinion relied less on text and far more on a long line of case law interpreting that text.

The majority opinion starts with a brief history of federal policy leading over the course of nearly a century to the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970,[30] 84 Stat. 1236, P.L. 91-513, and specifically Title II of that Act, the Controlled Substances Act[31] (CSA), 84 Stat. 1242, 21 U.S.C. § 801 et seq. (Gonzalez, supra, Part II). The purpose of this exposition was both to suggest the length of federal interest in regulating ,and controlling traffic in particular drugs, and the way that interest had manifested itself differently form the star to the end of the 20th century and in current incarnation that sprang up in the last third of the 20th century. Before then, the issue of controlling or prohibiting trade in particular substances had been left to the states. From the start of the 20th century, federal regulation has at first focused on labeling and purity restrictions for substances crossing state borders. Beyond that most federal measures seeking to regulate trade in drugs were sources in the taxing and spending powers of Congress.

For example, the primary drug control law, before being repealed by the passage of the CSA, was the Harrison Narcotics Act of 1914, 38 Stat. 785 (repealed 1970). The Harrison Act sought to exert control over the possession and sale of narcotics, specifically cocaine and opiates, by requiring producers, distributors, and purchasers to register with the Federal Government, by assessing taxes against parties so registered, and by regulating the issuance of prescriptions. (Gonzalez, supra, Part II).

Marijuana came to federal regulator’s attention only in the late 1930s, after the dissemination of writings suggesting marijuana’s addictive properties and detrimental physiological effects. The first measures were also grounded in the revenue powers under the Marijuana Tax act that was found, in part, unconstitutional in Leary v. United States,[32] 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). In that year and the next, the federal government substantially increased its involvement in control of drug markets, essentially regulating some classes of drugs and prohibiting trade in others. They also established or reorganized large portions of the federal government to tend to this effort.

To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U.S.C. §§ 841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. § 812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. §§ 811, 812. Each schedule is associated with a distinct set of controls regarding the manufacture, distribution, and use of the substances listed therein. §§ 821-830. The CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. Ibid.; 21 CFR § 1301 et seq. (2004). (Ibid).

Marijuana was classified as a Schedule I drug because the government declared this to have a high potential for abuse, to lack accepted medical use and to lack accepted safety for use in medically supervised treatment. (Ibid). This last point, of course was meant to suggest that the factual basis of the law might well be in doubt because at least one state had authoritatively declared that marijuana had medically acceptable uses in a safely controlled environment. But that suggestion which might well be true as a factual matter could not be accepted as a legal matter precisely because the law enacted expressed a different factual (if un-reviewed) view.

The majority then took up the issue of the statute as a valid exercise of Congressional power, It first described the narrowness of the issue presented.

Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress’ commerce power. . . . Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents’ challenge is actually quite limited; they argue that the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress’ authority under the Commerce Clause.

To make that narrow determination, whether Congress has the power under the Commerce Clause to regulate discrete activity that is purely intra-state in character required the Court to apply the text of the Commerce Clause as refined through nearly a century’s worth of cases. It is to the cases, rather than the text itself, where the “law” of the Constitution would be found.

Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151, 91 S.Ct. 1357; Wickard v. Filburn, 317 U.S. 111, 128-129, 63 S.Ct. 82, 87 L.Ed. 122 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125, 63 S.Ct. 82. We have never required Congress to legislate with scientific exactitude. When Congress decides that the “‘total incidence’“ of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U.S., at 154-155, 91 S.Ct. 1357 ( “‘[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so’“(quoting Westfall v. United States, 274 U.S. 256, 259, 47 S.Ct. 629, 71 L.Ed. 1036 (1927))). In this vein, we have reiterated that when “‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’“ E.g., Lopez, 514 U.S., at 558, 115 S.Ct. 1624 (quoting Maryland v. Wirtz, 392 U.S. 183, 196, n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); emphasis deleted). (Ibid., Part III).

Critical to that determination was the case of Wickard v. Filburn,[33] 317 U.S. 111 (1942).

Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. * * * * Nonetheless, respondents suggest that Wickard differs from this case in three respects: (1) the Agricultural Adjustment Act, unlike the CSA, exempted small farming operations; (2) Wickard involved a “quintessential economic activity”-a commercial farm-whereas respondents do not sell marijuana; and (3) the Wickard record made it clear that the aggregate production of wheat for use on farms had a significant impact on market prices. Those differences, though factually accurate, do not diminish the precedential force of this Court’s reasoning. (Ibid).

If a small farmer growing food for the sole use of his livestock could be bound up ion the agricultural products markets control regulations of the federal government, then so could the growing for personal use of marijuana for medicinal purposes even if sanctioned by the state of California. The reason was simple though the result severe for fashioning the line between federal and state power to regulate commercial activities. The Court considered that the power of market regulation could not be disaggregated to the particular circumstances of any of the participants. “That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme.” (Ibid). It is the market rather than the individual affected that counted for purposes of constitutional analysis. “The submissions of the parties and the numerous amici all seem to agree that the national, and international, market for marijuana has dimensions that are fully comparable to those defining the class of activities regulated by the Secretary pursuant to the 1938 statute.” (Ibid).

It is important to note, however, that though there is nothing in the constitution that suggests that one or the other perspective is valid. Thus, central to the dissenting opinion of Justice Thomas, is the choice of factual perspective form which to start the constitutional analysis. For Justice Thomas, “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything-and the Federal Government is no longer one of limited and enumerated powers.” (Gonzalez, supra, Thomas, J., dissenting).

The choice of perspective, the court reminds us, is in the first instance the prerogative of Congress. That is, it was for Congress to determine that the regulation of markets had to be privileged in the construction of a regulatory scheme. That the collateral interests of individuals, to the extent that in isolation they might not conform to the central objectives of the regulations, would have to be bent to the necessity articulated by Congress. The Court’s role was a modest one in these circumstances. It must uphold the Congressional determination (choosing to regulate markets even at the expense of individuals) if it found that the choice had a rational basis.[34]“We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.” (Gonzalez, supra, majority opinion). Yet implicit in this test is the validity of the opposite conclusion—that Congress could have rationally concluded that it ought not to include these individuals within its regulatory scheme. But the power of choice was in Congress, and the mere fact that individuals collaterally might not be engaged in interstate commerce does not make the aggregate of the activities controlled any less a matter for interstate commerce regulation.

But rationality also and necessarily bumps up against a legally constructed set of structural limits in the prior case law, those of Lopez v. United States,[35] 514 U.S. 549 (1995), and Morrison v. United States,[36] 529 U.S. 598 (2000). But the majority opinion rejected the extension of the holdings and rationales of those cases to the realities of national comprehensive control and interdiction of controlled substances.

First, the fact that marijuana is used “for personal medical purposes on the advice of a physician” cannot itself serve as a distinguishing factor. . . . Second, limiting the activity to marijuana possession and cultivation “in accordance with state law” cannot serve to place respondents’ activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. . . . (Ibid).

But the majority remains troubled by the logic of its decision and its reading of prior cases. The Court then suggests a pragmatic solution, but one that accepts the idea that the residuary power of states in the area of commerce has indeed shrunk to virtually nothing. That solution centers on begging for federal largesse for waivers and exemptions of national policies to meet regional aims. But this is not the assertion of power by the states as much as it is a delegation of power from the center. “As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.” (Ibid).

In dissent, Justice O’Connor emphasized the critical principles of federalism as a constraint on the broad reading of specific grants of federal authority, especially those in the Commerce Clause. “We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government.” (Ibid., O’Connor, J., dissenting). Justice O’Connor insisted that Lopez and Morrison applied both as case law and as the articulation of structural legal principles of constitutionalism.

First, we observed that our “substantial effects” cases generally have upheld federal regulation of economic activity that affected interstate commerce, but that § 922(q) was a criminal statute having “nothing to do with ‘commerce’ or any sort of economic enterprise.” Lopez, 514 U.S., at 561, 115 S.Ct. 1624 . . . . Second, we noted that the statute contained no express jurisdictional requirement establishing its connection to interstate commerce. . . . Third, we found telling the absence of legislative findings about the regulated conduct’s impact on interstate commerce. . . . Finally, we rejected as too attenuated the Government’s argument that firearm possession in school zones could result in violent crime which in turn could adversely affect the national economy. (Ibid., 44-45, O’Connor, J.).

The dissent could not distinguish the case of the criminalization of private marijuana growing for medicinal purposes from the gun possession criminalization provisions at issue in Lopez. The distinction in emphasis of facts makes all the difference in the application of the cases. The majority focused on the national market for drugs and the century old cases that validated congressional power to prohibit markets (the Lottery Case)[37] as well as to regulate commerce between states, and it could not detach the activities of the California plaintiffs. Justice O’Connor’s dissent, on the other hand, emphasized the quite distinct growing of marijuana for personal consumption at the heart of the case, a set of facts that she, like the litigants, argued was central to and quite detachable from the regulation of drug markets central to the majority’s opinion. Here, where both sides agree on both facts and law, the only distinction, and one that is outcome determinative, is the perspective that courts choose to adopt. If one considers this a case of personal home grown marijuana for personal consumption, then emphasizing the markets based arguments seem remote and inapplicable. If one considers this a case of markets regulation with incidental effects at the marginals of the market, then emphasizing the peculiar positions of some marginal market participants seems artificial and irrelevant. A political choice is wrapped within legal standards that are meant to constrain a political system that produces an efficient state from out of a set of fractured parts.

IV. Problem

The State of “Columbia” is currently considering a bill that would prohibit the use of state and local law enforcement officials to enforce the federal immigration laws or to cooperate with federal law enforcement officers enforcing such laws, unless required to do so under a specific court order to that effect. It would also criminalize the reporting the migrant status of individuals to federal officials by school employees absent a specific court order. You work for the attorney general of the state of Columbia. He wants you to write a memo considering whether such a law may withstand legal challenge. She especially wants you to consider whether principles of federalism, the 9^th or 10^th Amendments provide a basis for validating this bill. She has provided you the following materials to help guide your thinking.

__________

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 requires, among other things, that the organs of state and local government cooperate with the Department of Homeland Security's Immigration and Customs Enforcement (ICE). This cooperation includes reporting on the status of migrants that might access state or local government services or who may be arrested.

But a number of states and local governments have sought to protest their view of the 1996 Act and federal immigration policy in general by establishing so-called sanctuaries for undocumented immigrants living within their jurisdictions. Within these sanctuaries, relevant governments have refused to notify ICE of the presence of undocumented immigrants encountered within those communities. Sanctuary areas also seek to equalize the treatment and benefits accorded to documented and undocumented immigrants. In 2004, for example, the governor of Maine issued an executive order that is fairly representative of this movement:

An Order Concerning Access to State Services By All Entitled Maine Residents

April 9, 2004[38]

13 FY 04/05

WHEREAS, it is the policy of the State of Maine to promote utilization of its services by all of its residents who are eligible to receive them; and

WHEREAS, individuals should know that they may seek the assistance of State agencies regardless of personal or private attributes, without negative consequences to their personal lives; and

WHEREAS, the race, color, gender, ethnicity, religion, sexual orientation, age or socio-economic status of a person in need of services should never negatively influence the work performed by State employees; and

WHEREAS, all who are eligible to receive a state government service must not be inhibited from seeking that service because of fear, or anxiety; and

WHEREAS, all of Maine can be proud of the work that State employees perform on a daily basis; and

WHEREAS, obtaining pertinent information essential to the performance of a wide variety of governmental functions may in some cases be difficult or impossible if some expectation of confidentiality is not preserved, and preserving confidentiality in turn requires that governments regulate the use of such information by their employees; and

WHEREAS, in furtherance of this policy, confidential information in the possession of State agencies should be disclosed only as provided herein, or as otherwise required by law.

NOW, THEREFORE, I, John E. Baldacci, under the power vested in me as Governor of the State of Maine, mindful that there can be no room for prejudice, bias, racial or ethnic profiling in public service, do hereby issue an order concerning access to State services by all qualifying Maine residents as follows:

    As used herein, “confidential information” means any information obtained and maintained by a State agency relating to an individual’s sexual orientation, status as a victim of domestic violence, status as a victim of sexual assault, status as a crime witness, status as a person with a disability, receipt of public assistance, or immigration status, and shall include all information contained in any individual’s income tax records.

    Disclosure of Confidential Information

a. In the case of confidential information other than information relating to immigration status, no State employee shall disclose confidential information, unless:

i. such disclosure has been authorized in writing by the individual to whom such information pertains, or if such individual is a minor or is otherwise not legally competent, by such individual’s parent or legal representative; or ii. such disclosure is required by law; or iii. such disclosure is to another State employee, or other authorized agent of the State, and is otherwise authorized by law; or iv. such disclosure is necessary to fulfill the purpose or achieve the mission of any State agency and is otherwise authorized by law.

b. In the case of confidential information relating to immigration status, no State employee shall disclose confidential information unless:

i. the individual to whom such information pertains is suspected by such employee or such employee’s agency of engaging in illegal activity, other than mere status as an undocumented alien; or ii. the dissemination of such information is necessary to apprehend a person suspected of engaging in illegal activity, other than mere status as an undocumented alien; or iii. such disclosure is necessary in furtherance of an investigation of potential terrorist activity; or iv. such disclosure is required by law.

c. Any State employee with a question relating to the disclosure of confidential information under this section shall consult with the counsel of such employee’s agency.

    State Employees

a. A State employee, other than law enforcement officers, shall not inquire about a person’s immigration status unless:

i. such person’s immigration status is necessary for the determination of program, service or benefit eligibility or the provision of State services; or ii. such employee is required by federal or state law or by court order or court rule to inquire about such person’s immigration status; or iii. if otherwise necessary for the purposes of safeguarding public health.

    State Agencies with Law Enforcement, Investigative or Prosecutorial Authority

a. All State law enforcement officers shall continue to cooperate with federal authorities in investigating and apprehending aliens suspected of criminal activity.

b. All State agencies with law enforcement, investigative or prosecutorial authority shall not inquire about a person’s immigration status unless investigating or prosecuting illegal activity other than mere status as an undocumented alien.

c. It shall be the policy of all State agencies with law enforcement, investigative or prosecutorial authority not to inquire about the immigration status of crime victims, witnesses, or others who call or approach these agencies seeking assistance.

    Prevailing Legal Authority

    Nothing in this Executive Order is intended to supercede any lawful requirements, State or Federal, regarding the conduct of State employees.

    Guiding Principle

    Respect for the rights and dignity of all Maine residents, regardless of background or status, must govern all aspects of the work undertaken by the employees of the State of Maine.

    No Liability

Nothing in this Executive Order is intended, nor shall it be deemed to create or form the basis for liability on the part of the State, or its employees or agents. The exclusive remedy for violation of this Executive Order shall be through the State’s disciplinary procedures for employees.

    Effective Date

    The effective date of this Executive Order is April 9, 2004.

A number of cities have declared themselves sanctuary cities, some with formal policies of protection, including Baltimore, Maryland.[39] Among them is the city of San Francisco, California. The city explains its policy this way:

What is the Sanctuary Ordinance?

In 1989, San Francisco passed the "City and County of Refuge" Ordinance (also known as the Sanctuary Ordinance) which prohibits City employees from helping Immigration and Customs Enforcement (ICE) with immigration investigations or arrests unless such help is required by federal or state law or a warrant. The Ordinance is rooted in the Sanctuary Movement of the 1980's, when churches across the country provided refuge to Central Americans fleeing civil wars in their countries. In providing such assistance, faith communities were responding to the difficulties immigrants faced in obtaining refugee status from the U.S. government. Municipalities across the country followed suit by adopting sanctuary ordinances.

In recent years, the Sanctuary Movement has experienced a rebirth, as grassroots organizations, faith communities, and local government have stood firmly against repressive immigration proposals in Congress and immigration raids that separate families. In February 2007, Mayor Gavin Newsom reaffirmed San Francisco's commitment to immigrant communities by issuing an Executive Order that called on City departments to develop protocol and training on the Sanctuary Ordinance.[40]

The San Francisco ordinance provides as follows:

San Francisco Administrative Code Chapter 12H: Immigration Status

Sec. 12H.1. City and County of Refuge.

Sec. 12H.2. Use of City Funds Prohibited.

Sec. 12H.2-1. Chapter Provisions Inapplicable to Persons Convicted of Certain Crimes.

Sec. 12H.3. Clerk of Board to Transmit Copies of This Chapter; Informing City Employees.

Sec. 12H.4. Enforcement.

Sec. 12H.5. City Undertaking Limited to Promotion of General Welfare.

Sec. 12H.6. Severability.

SEC. 12H.1. CITY AND COUNTY OF REFUGE.

It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.

(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.

No department, agency, commission, officer or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or State statute, regulation or court decision. The prohibition set forth in this Chapter shall include, but shall not be limited to:

(a) Assisting or cooperating, in one's official capacity, with any Immigration and Naturalization Service (INS) investigation, detention, or arrest procedures, public or clandestine, relating to alleged violations of the civil provisions of the federal immigration law.

(b) Assisting or cooperating, in one's official capacity, with any investigation, surveillance or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State or federal criminal laws.

(c) Requesting information about, or disseminating information regarding, the immigration status of any individual, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration status, except as required by federal or State statute or regulation, City and County public assistance criteria, or court decision.

(d) Including on any application, questionnaire or interview form used in relation to benefits, services or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by federal or State statute, regulation or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.

(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.2-1. CHAPTER PROVISIONS INAPPLICABLE TO PERSONS CONVICTED OF CERTAIN CRIMES.

Nothing in this Chapter shall prohibit, or be construed as prohibiting, a law enforcement officer from identifying and reporting any person pursuant to State or federal law or regulation who is in custody after being booked for the alleged commission of a felony and is suspected of violating the civil provisions of the immigration laws. In addition, nothing in this Chapter shall preclude any City and County department, agency, commission, officer or employee from (a) reporting information to the INS regarding an individual who has been booked at any county jail facility, and who has previously been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under State law; (b) cooperating with an INS request for information regarding an individual who has been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under state law; or (c) reporting information as required by federal or state statute, regulation or court decision, regarding an individual who has been convicted of a felony committed in violation of the laws of the State of California, which is still considered a felony under state law. For purposes of this Section, an individual has been "convicted" of a felony when: (a) there has been a conviction by a court of competent jurisdiction; and (b) all direct appeal rights have been exhausted or waived; or (c) the appeal period has lapsed.

However, no officer, employee or law enforcement agency of the City and County of San Francisco shall stop, question, arrest or detain any individual solely because of the individual's national origin or immigration status. In addition, in deciding whether to report an individual to the INS under the circumstances described in this Section, an officer, employee or law enforcement agency of the City and County of San Francisco shall not discriminate among individuals on the basis of their ability to speak English or perceived or actual national origin.

This Section shall not apply in cases where an individual is arrested and/or convicted for failing to obey a lawful order of a police officer during a public assembly or for failing to disperse after a police officer has declared an assembly to be unlawful and has ordered dispersal.

Nothing herein shall be construed or implemented so as to discourage any person, regardless of immigration status, from reporting criminal activity to law enforcement agencies.

(Added by Ord. 282-92, App. 9/4/92; amended by Ord. 238-93, App. 8/4/93)

SEC. 12H.3. CLERK OF BOARD TO TRANSMIT COPIES OF THIS CHAPTER; INFORMING CITY EMPLOYEES.

The Clerk of the Board of Supervisors shall send copies of this Chapter, including any future amendments thereto that may be made, to every department, agency and commission of the City and County of San Francisco, to California's United States Senators, and to the California Congressional delegation, the Commissioner of the INS, the United States Attorney General, and the Secretary of State and the President of the United States. Each appointing officer of the City and County of San Francisco shall inform all employees under her or his jurisdiction of the prohibitions in this ordinance, the duty of all of her or his employees to comply with the prohibitions in this ordinance, and that employees who fail to comply with the prohibitions of the ordinance shall be subject to appropriate disciplinary action. Each city and county employee shall be given a written directive with instructions for implementing the provisions of this Chapter.

(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.4. ENFORCEMENT.

The Human Rights Commission shall review the compliance of the City and County departments, agencies, commissions and employees with the mandates of this ordinance in particular instances in which there is question of noncompliance or when a complaint alleging noncompliance has been lodged.

(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.5. CITY UNDERTAKING LIMITED TO PROMOTION OF GENERAL WELFARE.

In undertaking the adoption and enforcement of this Chapter, the City is assuming an undertaking only to promote the general welfare. This Chapter is not intended to create any new rights for breach of which the City is liable in money damages to any person who claims that such breach proximately caused injury. This section shall not be construed to limit or proscribe any other existing rights or remedies possessed by such person.

(Added by Ord. 375-89, App. 10/24/89)

SEC. 12H.6. SEVERABILITY.

If any part of this ordinance, or the application thereof, is held to be invalid, the remainder of this ordinance shall not be affected thereby, and this ordinance shall otherwise continue in full force and effect. To this end, the provisions of this ordinance, and each of them, are severable.

Some states have sought to further enforce the federal immigration laws locally. Among them has been the state of Arizona,[41] which sought to restrict the ability of local governments to limit cooperation with federal authorities. It also sought to enhance enforcement. Arizona’s efforts to enact law to that effect was challenged and the Supreme Court declared some but not all of the provisions of the act constitutional. The opinion follows.

ARIZONA, et al., PETITIONERS v. UNITED STATES

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 25, 2012]

Justice Kennedy delivered the opinion of the Court.

To address pressing issues related to the large number of aliens within its borders who do not have a lawful right to be in this country, the State of Arizona in 2010 enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as S. B. 1070, the version introduced in the state senate. See also H. 2162 (2010) (amending S. 1070). Its stated purpose is to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Note following Ariz. Rev. Stat. Ann. §11–1051 (West 2012). The law’s provisions establish an official state policy of “attrition through enforcement.” Ibid. The question before the Court is whether federal law preempts and renders invalid four separate provisions of the state law.

I

The United States filed this suit against Arizona, seeking to enjoin S. B. 1070 as preempted. Four provisions of the law are at issue here. Two create new state offenses. Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor. Ariz. Rev. Stat. Ann. §13–1509 (West Supp. 2011). Section 5, in relevant part, makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; this provision is referred to as §5(C). See §13–2928(C). Two other provisions give specific arrest authority and investigative duties with respect to certain aliens to state and local law enforcement officers. Section 6 authorizes officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.” §13–3883(A)(5). Section 2(B) provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the Federal Government. See §11–1051(B) (West 2012).

The United States District Court for the District of Arizona issued a preliminary injunction preventing the four provisions at issue from taking effect. 703 F. Supp. 2d 980, 1008 (2010). The Court of Appeals for the Ninth Circuit affirmed. 641 F. 3d 339, 366 (2011). It agreed that the United States had established a likelihood of success on its preemption claims. The Court of Appeals was unanimous in its conclusion that §§3 and 5(C) were likely preempted. Judge Bea dissented from the decision to uphold the preliminary injunction against §§2(B) and 6. This Court granted certiorari to resolve important questions concerning the interaction of state and federal power with respect to the law of immigration and alien status. 565 U. S. ___ (2011).

II A

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U. S. 1, 10 (1982) ; see generally S. Legomsky & C. Rodríguez, Immigration and Refugee Law and Policy 115–132 (5th ed. 2009). This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936) ).

The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici Curiae; see also Harisiades v. Shaughnessy, 342 U. S. 580 –589 (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae 24–30.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States. See Chy Lung v. Freeman, 92 U. S. 275 –280 (1876); see also The Federalist No. 3, p. 39 (C. Rossiter ed. 2003) (J. Jay) (observing that federal power would be necessary in part because “bordering States . . . under the impulse of sudden irritation, and a quick sense of apparent interest or injury” might take action that would undermine foreign relations). This Court has reaffirmed that “[o]ne of the most important and delicate of all international relationships . . . has to do with the protection of the just rights of a country’s own nationals when those nationals are in another country.” Hines v. Davidowitz, 312 U. S. 52, 64 (1941) .

Federal governance of immigration and alien status is extensive and complex. Congress has specified categories of aliens who may not be admitted to the United States. See 8 U. S. C. §1182. Unlawful entry and unlawful reentry into the country are federal offenses. §§1325, 1326. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. See §§1301–1306. Failure to do so is a federal misdemeanor. §§1304(e), 1306(a). Federal law also authorizes States to deny noncitizens a range of public benefits, §1622; and it imposes sanctions on employers who hire unauthorized workers, §1324a.

Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See §1227. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. See Brief for Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae 8–13 (hereinafter Brief for Former INS Commissioners). Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. See §1229a(c)(4); see also, e.g., §§1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary departure).

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Agencies in the Department of Homeland Security play a major role in enforcing the country’s immigration laws. United States Customs and Border Protection (CBP) is responsible for determining the admissibility of aliens and securing the country’s borders. See Dept. of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions: 2010, p. 1 (2011). In 2010, CBP’s Border Patrol apprehended almost half a million people. Id., at 3. Immigration and Customs Enforcement (ICE), a second agency, “conducts criminal investigations involving the enforcement of immigration-related statutes.” Id., at 2. ICE also operates the Law Enforcement Support Center. LESC, as the Center is known, provides immigration status information to federal, state, and local officials around the clock. See App. 91. ICE officers are responsible “for the identification, apprehension, and removal of illegal aliens from the United States.” Immigration Enforcement Actions, supra, at 2. Hundreds of thousands of aliens are removed by the Federal Government every year. See id., at 4 (reporting there were 387,242 removals, and 476,405 returns without a removal order, in 2010).

B

The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. * * *

These concerns are the background for the formal legal analysis that follows. The issue is whether, under preemption principles, federal law permits Arizona to implement the state-law provisions in dispute.

III

Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. See Gregory v. Ashcroft, 501 U. S. 452, 457 (1991) ; U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring). From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade Council, 530 U. S. 363, 372 (2000) ; Gibbons v. Ogden, 9 Wheat. 1, 210–211 (1824). There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision. See, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___ (2011) (slip op., at 4).

State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 115 (1992) . The intent to displace state law altogether can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where there is a “federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) ; see English v. General Elec. Co., 496 U. S. 72, 79 (1990) .

Second, state laws are preempted when they conflict with federal law. Crosby, supra, at 372. This includes cases where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 –143 (1963), and those instances where the challenged state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines, 312 U. S., at 67; see also Crosby, supra, at 373 (“What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects”). In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Congress.” Rice, supra, at 230; see Wyeth v. Levine, 555 U. S. 555, 565 (2009) .

The four challenged provisions of the state law each must be examined under these preemption principles.

IV A Section 3

Section 3 of S. B. 1070 creates a new state misdemeanor. It forbids the “willful failure to complete or carry an alien registration document . . . in violation of 8 United States Code section 1304(e) or 1306(a).” Ariz. Rev. Stat. Ann. §11–1509(A) (West Supp. 2011). In effect, §3 adds a state-law penalty for conduct proscribed by federal law. The United States contends that this state enforcement mechanism intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate. See Brief for United States 27, 31.

The Court discussed federal alien-registration requirements in Hines v. Davidowitz, 312 U. S. 52 . In 1940, as international conflict spread, Congress added to federal immigration law a “complete system for alien registration.” Id., at 70. The new federal law struck a careful balance. It punished an alien’s willful failure to register but did not require aliens to carry identification cards. There were also limits on the sharing of registration records and fingerprints. The Court found that Congress intended the federal plan for registration to be a “single integrated and all-embracing system.” Id., at 74. Because this “complete scheme . . . for the registration of aliens” touched on foreign relations, it did not allow the States to “curtail or complement” federal law or to “enforce additional or auxiliary regulations.” Id., at 66–67. As a consequence, the Court ruled that Pennsylvania could not enforce its own alien-registration program. See id., at 59, 74.

The present regime of federal regulation is not identical to the statutory framework considered in Hines, but it remains comprehensive. Federal law now includes a requirement that aliens carry proof of registration. 8 U. S. C. §1304(e). Other aspects, however, have stayed the same. Aliens who remain in the country for more than 30 days must apply for registration and be fingerprinted. Compare §1302(a) with id., §452(a) (1940 ed.). Detailed information is required, and any change of address has to be reported to the Federal Government. Compare §§1304(a), 1305(a) (2006 ed.), with id., §§455(a), 456 (1940 ed.). The statute continues to provide penalties for the willful failure to register. Compare §1306(a) (2006 ed.), with id., §457 (1940 ed.).

The framework enacted by Congress leads to the conclusion here, as it did in Hines, that the Federal Government has occupied the field of alien registration. . . . Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 249 (1984) .

Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders. If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement” and “detract[ing] from the ‘integrated scheme of regulation’ created by Congress.” Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282 –289 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. See California v. Zook, 336 U. S. 725 –731, 733 (1949); see also In re Loney, 134 U. S. 372 –376 (1890) (States may not impose their own punishment for perjury in federal courts).

Arizona contends that §3 can survive preemption because the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption—that States may not enter, in any respect, an area the Federal Government has reserved for itself—but also is unpersuasive on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted. . . .

There is a further intrusion upon the federal scheme. Even where federal authorities believe prosecution is appropriate, there is an inconsistency between §3 and federal law with respect to penalties. Under federal law, the failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation. See 8 U. S. C. §1304(e) (2006 ed.); 18 U. S. C. §3561. State law, by contrast, rules out probation as a possible sentence (and also eliminates the possibility of a pardon). See Ariz. Rev. Stat. Ann. §13–1509(D) (West Supp. 2011). This state framework of sanctions creates a conflict with the plan Congress put in place. See Wisconsin Dept., supra, at 286 (“[C]onflict is imminent whenever two separate remedies are brought to bear on the same activity” (internal quotation marks omitted)).

These specific conflicts between state and federal law simply underscore the reason for field preemption. As it did in Hines, the Court now concludes that, with respect to the subject of alien registration, Congress intended to preclude States from “complement[ing] the federal law, or enforc[ing] additional or auxiliary regulations.” 312 U. S., at 66–67. Section 3 is preempted by federal law.

B Section 5(C)

Unlike §3, which replicates federal statutory requirements, §5(C) enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in Arizona. Ariz. Rev. Stat. Ann. §13–2928(C) (West Supp. 2011). Violations can be punished by a $2,500 fine and incarceration for up to six months. See §13–2928(F); see also §§13–707(A)(1) (West 2010); 13–802(A); 13–902(A)(5). The United States contends that the provision upsets the balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control.

When there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own laws on the subject. In 1971, for example, California passed a law imposing civil penalties on the employment of aliens who were “not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” 1971 Cal. Stats. ch. 1442, §1(a). The law was upheld against a preemption challenge in De Canas v. Bica, 424 U. S. 351 (1976) . De Canas recognized that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” Id., at 356. At that point, however, the Federal Government had expressed no more than “a peripheral concern with [the] employment of illegal entrants.” Id., at 360; see Whiting, 563 U. S., at ___ (slip op., at 3).

Current federal law is substantially different from the regime that prevailed when De Canas was decided. Congress enacted IRCA as a comprehensive framework for “combating the employment of illegal aliens.” Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 147 (2002) . The law makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers. See 8 U. S. C. §§1324a(a)(1)(A), (a)(2). It also requires every employer to verify the employment authorization status of prospective employees. See §§1324a(a) (1)(B), (b); 8 CFR §274a.2(b) (2012). These requirements are enforced through criminal penalties and an escalating series of civil penalties tied to the number of times an employer has violated the provisions. See 8 U. S. C. §§1324a(e)(4), (f); 8 CFR §274a.10.

This comprehensive framework does not impose federal criminal sanctions on the employee side (i.e., penalties on aliens who seek or engage in unauthorized work). Under federal law some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employment are not eligible to have their status adjusted to that of a lawful permanent resident. See 8 U. S. C. §§1255(c)(2), (c)(8). Aliens also may be removed from the country for having engaged in unauthorized work. See §1227(a)(1)(C)(i); 8 CFR §214.1(e). In addition to specifying these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means. See 18 U. S. C. §1546(b). Congress has made clear, however, that any information employees submit to indicate their work status “may not be used” for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct. See 8 U. S. C. §§1324a(b)(5), (d)(2)(F)–(G).

The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. A commission established by Congress to study immigration policy and to make recommendations concluded these penalties would be “unnecessary and unworkable.” U. S. Immigration Policy and the National Interest: The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy with Supplemental Views by Commissioners 65–66 (1981); see Pub. L. 95–412, §4, 92Stat. 907. Proposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting IRCA. See Brief for Service Employees International Union et al. as Amici Curiae 9–12. But Congress rejected them. See, e.g., 119 Cong. Rec. 14184 (1973) (statement of Rep. Dennis). In the end, IRCA’s framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work—aliens who already face the possibility of employer exploitation because of their removable status—would be inconsistent with federal policy and objectives. See, e.g., Hearings before the Subcommittee No. 1 of the House Committee on the Judiciary, 92d Cong., 1st Sess., pt. 3, pp. 919–920 (1971) (statement of Rep. Rodino, the eventual sponsor of IRCA in the House of Representatives).

IRCA’s express preemption provision, which in most instances bars States from imposing penalties on employers of unauthorized aliens, is silent about whether additional penalties may be imposed against the employees themselves. See 8 U. S. C. §1324a(h)(2); Whiting, supra, at ___–___ (slip op., at 1–2). But the existence of an “express pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles” or impose a “special burden” that would make it more difficult to establish the preemption of laws falling outside the clause. Geier v. American Honda Motor Co., 529 U. S. 861 –872 (2000); see Sprietsma v. Mercury Marine, 537 U. S. 51, 65 (2002) .

The ordinary principles of preemption include the well-settled proposition that a state law is preempted where it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U. S., at 67. Under §5(C) of S. B. 1070, Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens. Although §5(C) attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of enforcement. The Court has recognized that a “[c]onflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy.” Motor Coach Employees v. Lockridge, 403 U. S. 274, 287 (1971) . The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose. See Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp., 485 U. S. 495, 503 (1988) (“Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn—not from federal inaction alone, but from inaction joined with action”). Section 5(C) is preempted by federal law.

C Section 6

Section 6 of S. B. 1070 provides that a state officer, “without a warrant, may arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.” Ariz. Rev. Stat. Ann. §13–3883(A)(5) (West Supp. 2011). The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created.

As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza, 468 U. S. 1032, 1038 (1984) . If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Appear. See 8 U. S. C. §1229(a); 8 CFR §239.1(a) (2012). The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U. S. C. §1229(a)(1). If an alien fails to appear, an in absentia order may direct removal. §1229a(5)(A).

The federal statutory structure instructs when it is appropriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States.” 8 U. S. C. §1226(a); see Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter 2011 ICE Memorandum) (describing factors informing this and related decisions). And if an alien is ordered removed after a hearing, the Attorney General will issue a warrant. See 8 CFR §241.2(a)(1). In both instances, the warrants are executed by federal officers who have received training in the enforcement of immigration law. See §§241.2(b), 287.5(e)(3). If no federal warrant has been issued, those officers have more limited authority. See 8 U. S. C. §1357(a). They may arrest an alien for being “in the United States in violation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” §1357(a)(2).

Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.

This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A principal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See §1357(g)(1); see also §1103(a)(10) (authority may be extended in the event of an “imminent mass influx of aliens off the coast of the United States”); §1252c (authority to arrest in specific circumstance after consultation with the Federal Government); §1324(c) (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements are subject to the Attorney General’s direction and supervision. §1357(g)(3). There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable. See Padilla v. Kentucky, 559 U. S. ___, ___–___ (2010) (Alito, J., concurring in judgment) (slip op., at 4–7). As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigration officer. See §1357(g)(2); cf. 8 CFR §§287.5(c) (arrest power contingent on training), 287.1(g) (defining the training).

By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. See, e.g., Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471 –484 (1999); see also Brief for Former INS Commissioners 8–13. A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 348 (2005) (“Removal decisions, including the selection of a removed alien’s destination, may implicate [the Nation’s] relations with foreign powers and require consideration of changing political and economic circumstances” (internal quotation marks omitted)); see also Galvan v. Press, 347 U. S. 522, 531 (1954) (“Policies pertaining to the entry of aliens and their right to remain here are . . . entrusted exclusively to Congress . . .”); Truax v. Raich, 239 U. S. 33, 42 (1915) (“The authority to control immigration—to admit or exclude aliens—is vested solely in the Federal Government”).

In defense of §6, Arizona notes a federal statute permitting state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(B). There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government. . . . State officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody. See §1357(d). But the unilateral state action to detain authorized by §6 goes far beyond these measures, defeating any need for real cooperation.

Congress has put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances. By nonetheless authorizing state and local officers to engage in these enforcement activities as a general matter, §6 creates an obstacle to the full purposes and objectives of Congress. See Hines, 312 U. S., at 67. Section 6 is preempted by federal law.

D Section 2(B)

Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” Ibid. The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records.

Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers “may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Arizona Constitution[s].” Ibid. Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” §11–1051(L) (West 2012).

The United States and its amici contend that, even with these limits, the State’s verification requirements pose an obstacle to the framework Congress put in place. The first concern is the mandatory nature of the status checks. The second is the possibility of prolonged detention while the checks are being performed.

1

Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(A). And Congress has obligated ICE to respond to any request made by state officials for verification of a person’s citizenship or immigration status. See §1373(c); see also §1226(d)(1)(A) (requiring a system for determining whether individuals arrested for aggravated felonies are aliens). ICE’s Law Enforcement Support Center operates “24 hours a day, seven days a week, 365 days a year” and provides, among other things, “immigration status, identity information and real-time assistance to local, state and federal law enforcement agencies.” ICE, Fact Sheet: Law Enforcement Support Center (May 29, 2012), online at http:// www.ice.gov/news/library/factsheets/lesc.htm. LESC responded to more than one million requests for information in 2009 alone. App. 93.

The United States argues that making status verification mandatory interferes with the federal immigration scheme. It is true that §2(B) does not allow state officers to consider federal enforcement priorities in deciding whether to contact ICE about someone they have detained. See Brief for United States 47–50. In other words, the officers must make an inquiry even in cases where it seems unlikely that the Attorney General would have the alien removed. This might be the case, for example, when an alien is an elderly veteran with significant and longstanding ties to the community. See 2011 ICE Memorandum 4–5 (mentioning these factors as relevant).

Congress has done nothing to suggest it is inappropriate to communicate with ICE in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U. S. C. §1357(g) (10)(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [ICE] information regarding the immigration status, lawful or unlawful, of an alien in the United States.” §1644. The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. Cf. Whiting, 563 U. S., at ___–___ (slip op., at 23–24) (rejecting argument that federal law preempted Arizona’s requirement that employers determine whether employees were eligible to work through the federal E-Verify system where the Federal Government had encouraged its use).

2

Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immigration status would raise constitutional concerns. See, e.g., Arizona v. Johnson, 555 U. S. 323, 333 (2009) ; Illinois v. Caballes, 543 U. S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV–C, supra (concluding that Arizona may not authorize warrantless arrests on the basis of removability). The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism.

But §2(B) could be read to avoid these concerns.

* * *

The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277 (1915) (“So far as statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts” (citation omitted)). As a result, the United States cannot prevail in its current challenge. See Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 446 (1960) (“To hold otherwise would be to ignore the teaching of this Court’s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists”). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.

V

Immigration policy shapes the destiny of the Nation. On May 24, 2012, at one of this Nation’s most distinguished museums of history, a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem. There they took the oath to become American citizens. The Smithsonian, News Release, Smithsonian Citizenship Ceremony Welcomes a Dozen New Americans (May 24, 2012), online at http://newsdesk.si.edu/releases. These naturalization ceremonies bring together men and women of different origins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the Constitution, and to bear arms on behalf of the country when required by law. 8 CFR §337.1(a) (2012). The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

* * *

The United States has established that §§3, 5(C), and 6 of S. B. 1070 are preempted. It was improper, however, to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives.

The judgment of the Court of Appeals for the Ninth Circuit is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Scalia, concurring in part and dissenting in part.

The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938) . Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.

I

As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. * * *

There is no doubt that “before the adoption of the constitution of the United States” each State had the authority to “prevent [itself] from being burdened by an influx of persons.” Mayor of New York v. Miln, 11 Pet. 102, 132–133 (1837). And the Constitution did not strip the States of that authority. To the contrary, two of the Constitution’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. 42, pp. 269–271 (C. Rossiter ed. 1961) (J. Madison). The Articles of Confederation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.” Articles of Confederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and Immunities Clause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, §2, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” The Federalist No. 42, supra, at 271; see Art. I, §8, cl. 4. In other words, the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it.

Two other provisions of the Constitution are an acknowledgment of the States’ sovereign interest in protecting their borders. Article I provides that “[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws.” Art. I, §10, cl. 2 (emphasis added). This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods. A later portion of the same section provides that “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §10, cl. 3 (emphasis added). This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory.

Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost Century of American Immigration (1776–1875), 93 Colum. L. Rev. 1833, 1835, 1841–1880 (1993). State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration. 2 Id., at 1883.

* * *

II

One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for immigration policy has shifted from the States to the Federal Government. Congress exercised its power “[t]o establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1Stat. 103. But with the fleeting exception of the Alien Act, Congress did not enact any legislation regulating immigration for the better part of a century. In 1862, Congress passed “An Act to prohibit the ‘Coolie Trade’ by American Citizens in American Vessels,” which prohibited “procuring [Chinese nationals] . . . to be disposed of, or sold, or transferred, for any term of years or for any time whatever, as servants or apprentices, or to be held to service or labor.” 12Stat. 340. Then, in 1875, Congress amended that act to bar admission to Chinese, Japanese, and other Asian immigrants who had “entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes.” An act supplementary to the acts in relation to immigration, ch. 141, 18Stat. 477. And in 1882, Congress enacted the first general immigration statute. See An act to regulate Immigration, 22Stat. 214. Of course, it hardly bears mention that Federal immigration law is now extensive.

I accept that as a valid exercise of federal power—not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States. As this Court has said, it is an “ ‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’ ” Fong Yue Ting v. United States, 149 U. S. 698, 705 (1893) (quoting Ekiu v. United States, 142 U. S. 651, 659 (1892) ). That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . .”

In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.

* * *

What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law—whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority.

* * *

. . . . The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona.

* * *

Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding?

But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. 4 If an individual unlawfully present in the United States

“• came to the United States under the age of sixteen;

“• has continuously resided in the United States for at least five years . . . ,

“• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran . . . ,

“• has not been convicted of a [serious crime]; and

“• is not above the age of thirty,” 5

then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” 6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. 7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

The Court opinion’s looming specter of inutterable horror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

* * *

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.

[1]http://www.law.cornell.edu/supct/html/03-1454.ZS.html

[2] http://www.law.cornell.edu/constitution/ninth_amendment

[3] http://www.law.cornell.edu/constitution/tenth_amendment

[4] http://www.law.cornell.edu/constitution/billofrights#amendmentx

[5] http://www.law.cornell.edu/supremecourt/text/312/100

[6] http://www.law.cornell.edu/supct/html/91-543.ZO.html

[7] August 2, 1939, 53 Stat. 1147, July 19, 1940, 54 Stat. 767, 56 Stat. 181, 986, 58 Stat. 136, 727, 59 Stat. 108, 658, 60 Stat., ch. 904, Pub.Law 684, 18 U.S.C.A. § 61 et seq.

[8] http://www.archives.gov/exhibits/charters/constitution_transcript.html

[9] http://www.law.cornell.edu/wex/commerce_clause

[10] http://www.streetlaw.org/en/landmark/home

[11] http://en.wikipedia.org/wiki/United_States_Reports

[12] http://www.law.cornell.edu/supremecourt/text/196/375

[13] http://en.wikipedia.org/wiki/Sherman_Antitrust_Act

[14] http://www.law.cornell.edu/supremecourt/text/234/342

[15] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=301&invol=1

[16] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=379&invol=241

[17] http://www.law.cornell.edu/supremecourt/text/379/294

[18] http://www.law.cornell.edu/supremecourt/text/402/146

[19] http://www.law.cornell.edu/supct/html/93-1260.ZO.html

[20] http://en.wikipedia.org/wiki/Gun-Free_School_Zones_Act

[21] http://en.wikipedia.org/wiki/Title_18_of_the_United_States_Code

[22] http://www.law.cornell.edu/supct/html/99-5.ZS.html

[23] http://en.wikipedia.org/wiki/Violence_Against_Women_Act

[24] http://law2.umkc.edu/faculty/projects/ftrials/conlaw/statecommerce.htm

[25] http://www.law.cornell.edu/supct/html/03-1454.ZS.html

[26] http://www.justice.gov/dea/index.shtml

[27] http://www.fda.gov/regulatoryinformation/legislation/ucm148726.htm

[28] http://www.law.cornell.edu/rules/frcp/rule_65

[29]http://www.law.cornell.edu/supremecourt/text/343/579

[30] http://www.gpo.gov/fdsys/pkg/STATUTE-84/pdf/STATUTE-84-Pg1236.pdf

[31] http://www.fda.gov/regulatoryinformation/legislation/ucm148726.htm

[32] http://supreme.justia.com/cases/federal/us/395/6/

[33] http://www.law.cornell.edu/supremecourt/text/317/111

[34] http://www.law.cornell.edu/wex/rational_basis_test

[35] http://www.law.cornell.edu/supct/html/93-1260.ZO.html

[36] http://www.law.cornell.edu/supct/html/99-5.ZS.html

[37] http://supreme.justia.com/cases/federal/us/188/321/

[38] http://maine.gov/tools/whatsnew/index.php?topic=Gov_Executive_Orders&id=21351&v=Article.

[39] “Gov. Martin O'Malley announced Friday that the Baltimore City Detention Center will no longer automatically honor requests from the federal government to hold immigrants for deportation — making the state-run jail one of a relative handful in the country to take a more discerning approach on such requests. . . . Under the new policy, which begins immediately, Baltimore will honor the requests only in cases in which an immigrant has been charged with or convicted of a felony, three or more misdemeanors or a "serious" misdemeanor.” John Fritze, O'Malley takes aim at deportations The Baltimore Sun, April 18, 2014. Available http://www.baltimoresun.com/news/maryland/politics/bs-md-omalley-immigration-20140418-story.html#page=1.

[40] City of San Francisco, Sanctuary Ordinance, Frequently Asked Questions, Question 1, available http://sfgsa.org/index.aspx?page=1072.

[41] Arizong, S.B. 1070 (2010) available http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf.

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