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65 Stan. L. Rev. Online 1 (2012-2013)

handle is hein.journals/slro65 and id is 1 raw text is: 65 STAN. L. REv. ONuNE 1 June 18, 2012 DISCRIMINATION, PREEMPTION, AND ARIZONA' S IMMIGRATION LAW: A BROADER VIEW Lucas Guttentag* The Supreme Court is expected to decide within days whether Arizona's controversial immigration enforcement statute, S.B. 1070, is unconstitutional. Arizona's law is widely condemned because of the discrimination the law will engender. Yet the Court appears intent on releqating questions of racial and ethnic profiling to the back of the bus, as it were. That is because the Supreme Court is considering only the United States' facial preemption challenge to S.B. 1070 under the Supremacy Clause. That preemption claim asserts that Arizo- na's statute conflicts with the Immigration and Nationality Act's federal en- forcement structure and authority. But discarding the relevance of discrimination as a component of that os- tensibly limited preemption claim expresses the federal interest too narrowly. State laws targeting noncitizens should also be tested against another funda- mental federal norm, namely the prohibition against state alienage discrimina- tion that dates back to Reconstruction-era civil rights laws. In other words, the * Lucas Guttentag teaches at Yale Law School, where he is Robina Foundation Dis- tinguished Senior Fellow and Research Scholar in Residence, and at Stanford Law School. He is the former founding national director of the ACLU Immigrants' Rights Project. A short version of the thoughts expressed here appeared in The New Republic online. 1. In a revealing moment at oral argument, the Chief Justice demanded of the Solici- tor General before he could offer a single word of argument: No part of your argument has to do with racial or ethnic profiling, does it? A moment later, Chief Justice Roberts reiterat- ed, So this is not a case about ethnic profiling. Transcript of Oral Argument at 34, Arizona v. United States, No. 11-182 (U.S. argued Apr. 25, 2012), available at http://www.supremecourt.gpv/oral arguments/argument transcripts/11-182.pdf. For a recent discussion by a prominent commentator that [riace is the project of the Roberts court, see Linda Greenhouse, The Fire Next Term, N.Y. TvIEs OPIMNIONATOR BLOG (May 30, 2012, 9:00 PM), http://opinionator.blogs.nytimes.com/20 12/05/30/the-fire-next-term/ (arguing that the Chief Justice is intent on undoing the Court's affirmative action and voting rights deci- sions). 1