A more in depth analysis will be coming this evening, but the 9th Circuit Court of Appeals just made absolutely clear why Georgia’s HB 87 and SB 40 are going to be found unconstitutional if passed by the State Legislature.
In light of this guidance, Section 2(B)’s interference with Congressionally-granted Executive discretion weighs in favor of preemption. Section 2(B)’s ‘unyielding” mandatory directives to Arizona law enforcement officers “underminethe President’s intended statutory authority” to establish immigration enforcement priorities and strategies. Crosby, 530 U.S. at 377. Furthermore, “flexibility is a critical component of the statutory and regulatory framework under which the” Executive “pursues [the] difficult (and often competing) objectives,” Buckman, 531 U.S. at 349, of—according to ICE—”advanc[ing] the goals of protecting national security, protecting public safety, and securing the border.” Through Section 2(B), Arizona has attempted to hijack a discretionary role that Congress delegated to the Executive.
The record before this court demonstrates that S.B. 1070 does not threaten a “likelihood . . . [of] produc[ing] something more than incidental effect;” rather, Arizona’s law has created actual foreign policy problems of a magnitude far greater than incidental.