Can U.S. state laws be overturned because foreign governments don’t like them? According to the Supreme Court, the answer is yes.
In Arizona v. U.S., the case over Arizona’s S.B. 1070 immigration law, the Supreme Court gave one of the most comprehensive arguments yet justifying foreign influence over U.S. jurisprudence. In arguing for complete federal authority over immigration policy, the court decided on Monday that state statutes had to bow to the convenience of the executive in managing foreign policy. “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,” Justice Anthony M. Kennedy wrote for the majority.
The court claimed 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.” States like Arizona should not be permitted to intrude on “*ne of the most important and delicate of all international relationships,” namely “the protection of the just rights of a country’s own nationals when those nationals are in another country.”
This is twisted logic. It asserts that because foreign leaders might browbeat an American president over a state mandate, that law must be invalidated. Because foreign governments may be concerned about the rights - real or imagined - of their citizens who entered the United States illegally, the “delicate relationship” between the countries overrides any other concerns.
The court also fretted that, “perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.” This argument was put forward in an amicus brief by former Secretary of State Madeleine K. Albright, among others. It cited an example in 2004 when Brazil singled out American nationals for “fingerprinting and photographing upon entry into Brazil to respond in equal measure to the U.S. fingerprinting of foreign nationals under the Enhanced Border Security and Visa Entry Reform Act of 2002.” This anecdote, however, was about a federal - not a state - practice and as such doesn’t support the court’s conclusion.
Trying to read international customs into U.S. constitutional law is the latest leftist fad. In September 2010, Justice Stephen G. Breyer raised eyebrows when he speculated on “Good Morning America” that the freedoms enshrined in the Bill of Rights may have to be limited because of their potential impact in foreign countries. In this case, he was concerned that Americans engaged in protected symbolic political speech by burning Korans would cause foreign extremists to riot. “[Turn-of-the-century Justice Oliver Wendell] Holmes said [free speech] doesn’t mean you can shout ‘fire’ in a crowded theater,” Justice Breyer waxed. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?” The answer is: American freedom.
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