Equal Rights vs. The Supremacy Clause – Understanding what the Supreme Court DID NOT decide in Arizona v. US

Many people awaited the Supreme Court decision in Arizona v. United States with great anticipation. Now it is here, and after reading comments on various social media sites, it occurs to me, the average person doesn’t know that at no point was either Arizona or the United States arguing about whether the law is fair or if it violates the equal protection clause of the Constitution. In short no one was arguing about individual rights. Everyone was arguing about the rights of Federal v. State governments.

This confusion isn’t particularly surprising. I think most people pay attention to Supreme Court decisions mostly when those decisions deal with civil rights or privacy. Those decisions often are in the news the most, and can be quite controversial. Think of decisions such as Roe v. Wade (abortion,) Lawrence v. Texas (making it illegal to outlaw sex acts based on orientation,) Brown v. Board of Education (separate education is not equal education,) and Snyder v. Phelps (right to protest at military funerals.)

Before I get into the meat of this issue, I am going to say out front that I am avoiding offering an opinion on the decision or immigration itself. That isn’t my goal here. My goal is simply to provide an explanation of the Supremacy clause and explain how and when the equal protection clause might be addressed in relation to the Arizona law in the future.

The Supremacy Clause

The Constitution is not just a document that secures individual rights, it is also a document that accords certain rights and responsibilities to the federal government. And that is why the United States government sued Arizona. Essentially, the US argued that by creating its law on immigration, Arizona was interfering with the rights of the federal government to control immigration as it sees fit. This right of the federal government comes from the supremacy clause of the constitution. Article VI, paragraph 2 reads:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Note the part that reads “shall be the supreme law of the land.” The word “supreme” is why the clause is called the supremacy clause. Also note the word shall. Words matter in law, and lawsuits are won and lost based on the words “shall,” versus “may.”  Shall is a command, i.e. not optional. Meaning that control in certain areas is reserved to the United States. And that’s that.

Why a Supremacy Clause?

The supremacy clause is important because it is what makes the laws of our land predictable. If each state could pass its own laws about issues that have a direct impact on the entirety of the country and its relationships with the international community, there would be no predictability or certainty for our citizens and other nations. It is bad enough we don’t know whether we can hold a cell phone when we drive from state to state. Imagine if every law, every act, was regulated in a different way. Also, the Federal government used the supremacy clause to aid in the civil rights movement by combining it with the commerce clause to reach into areas such as equal rights in hiring and firing.

There are arguments about whether the federal government uses the Constitution in ways in which it was not intended through various clauses, but that would be a treatise that goes well beyond this post.

The supremacy clause is a part of the legal system that causes even law professors’ eyes to glaze over. I on the other hand very much enjoyed my Federalism class; a seminar taught by one of the most feared professors at my law school. When I started the class the room was filled to the brim. By the end of the add-drop period, we had only 11 students. That tells you something about the supremacy clause.

Enter Arizona v. US

Understand, there is room for debate as to what is reserved to the Federal government versus what states are allowed to do. And that debate is what lead to the case we are discussing today. In addition, Arizona argued that the United States has done nothing about Immigration, leaving it no choice but to act.  It is clear that the Supreme Court is sympathetic to this problem, but does not believe that the failure of the United States to act allows a state to step into that vacuum to create legislation that takes over the rights of the Federal government to act, or not act, as it chooses.

The Supreme Court found several portions of the Arizona law unconstitutional because of the supremacy clause. In essence, the Court said that Arizona tried to interfere with the rights of the federal government to handle immigration. And no state may interfere with those rights. As a result, the Court threw out the portions of the law it felt, on its face, interfered with the federal government’s rights.  What the Supreme Court did not do is address the rights of individuals under Arizona’s legislation.

 Individual Rights Not Argued

The Supreme Court did not decide whether the rights of individuals are being harmed by Arizona’s legislation. In fact, the Supreme Court specifically chose not to decide this issue, and both Arizona and the US specifically chose not to argue it. Therefore the Supreme Court’s opinion does not address whether stopping a person and asking to see his ID is appropriate or inappropriate. The reason for this is because the Supreme Court found that this act is within the purview of a state government, on its face. When I say on its face I mean the law as written was not interpreted to violate the supremacy clause. The Court did not then analyze the law to see how it impacted an individual person. That was not an issue before the Court. And the Court generally only looks at the issues brought before it by the litigants.

Arizona v. Individual Coming Up

A failure to argue equal protection in the current case does not mean that the remainder of the Arizona law cannot end up before the Supreme Court again. In its decision, the Supreme Court specifically noted, “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

Why didn’t the federal government challenge the law under equal rights grounds? There could be many reasons. The most obvious reason is a political one. Perhaps the government didn’t want to open that particular can of worms and would rather let other people do so. Another reason is a legal one. The law is not in effect yet, so there are no individuals who have been directly impacted by the law’s application. An argument prior to enforcement of the law requires proof that the law was enacted specifically for a discriminatory reason. This is a very high standard and one that is hard to reach. Once the law is actually applied to individual people, those people, if they feel they have been discriminated against, may sue at that point for violation of their rights. And that is exactly what I predict will happen in this case. The federal government itself could choose to sue at that point as well. It could also sue if the remaining law is enacted in such a way as to violate its preemption rights under the supremacy clause.


Please don’t be fooled by people arguing that the Arizona law won or lost as far as individual rights. That case was not decided and was not even argued before the Court. Today’s decision is simply about the supremacy clause of the Constitution. No more, no less.

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