I recently discussed the Supreme Court’s latest decision not to preempt an Arizona law imposing tough sanctions on firms that employ illegal aliens. I concluded it was a close case but that there was a policy argument for the Court’s result based on Erin O’Connor and my theory of regulatory coordination. Employment laws like Arizona’s do not impose the “spillover” effects on national markets that are associated with, say, state design standards for nationally marketed products. In general, although businesses often favor bringing federal order to messy state law, it is also important to recognize the benefits of the state “laboratory” for regulation — what Erin and I call The Law Market.
Ross Douthat, writing in today’s NYT reminds us of the value of state experimentation in this context. He notes that the law
reduced Arizona’s population of working-age illegal immigrants by about 17 percent, or roughly 92,000 people, in just a single year. * * * And the swift attrition was mainly achieved through voluntary compliance: the number of employers prosecuted under the law can be counted on one hand. These results suggest that maybe — just maybe — America’s immigration rate isn’t determined by forces beyond any lawmaker’s control. Maybe public policy can make a difference after all. Maybe we could have an immigration system that looked as if it were designed on purpose, not embraced in a fit of absence of mind.
There is a vigorous debate about immigration policy. As the grandchild of immigrants and as a believer in the significant benefits this country reaps from immigration, I lean toward open doors. But these general views don’t answer specific questions about where to draw the lines in immigration policy. Opening the door to state experimentation provides data about the effects of specific approaches and thereby informs policymaking. This is a lesson the courts need to keep in mind when considering the scope of preemption.
