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Following up on Professor Epstein’s excellent post about Judge Bolton’s opinion in the Arizona case, I’d like to pose a related, but different, question.
Professor Epstein concludes that the Administration is likely to win its case on federal pre-emption grounds. Would the pre-emption argument also work against states and cities with “sanctuary” policies? The State of Maine, for example, has a policy (imposed by the governor via executive order) that prohibits state employees from disclosing or even inquiring about a person’s immigration status. Isn’t there a credible argument that such a policy frustrates federal enforcement of immigration laws?
As a tactical matter, maybe this is a fight the Republicans don’t want, for fear of alienating hispanic voters. But as a legal matter, the argument seems sound to me.