Can Supremacy Clause apply to unenforced federal law?

“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, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”
   
Supremacy Clause of Article VI of U.S. Constitution

The Justice department is suing the state of Arizona — over its law attempting to actually enforce federal immigration law — using the Supremacy Clause of the Constitution as one of its grounds.

As usual when it comes to this august document, we turn to Seth Lipsky’s “The Citizen’s Constitution” for guidance and cites. Among these is the case of Printz v. United States in which Justice Antonin Scalia wrote for the court about a federal attempt to force a Montana Sheriff, Jay Printz, to enforce federal gun laws.

“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program,” Scalia writes. “It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

The Wall Street Journal in an editorial noted the use of this clause.

“The suit charges the state with pre-empting federal law in violation of the Constitution’s Supremacy Clause, and unlike the case of health care the Constitution does expressly give Congress the power to establish an uniform Rule of Naturalization.’” the WSJ editorialists write. “Justice also claims Arizona goes further than federal immigration law by making it a crime for anyone here illegally to solicit work.”

What does soliciting work have to do with naturalization?

This case might come down to the fact the Arizona law is nearly verbatim to currently unenforced federal law. Might a state have powers under the 10th Amendment and the dual sovereignty principle to enforce federal laws, especially their courts, which are required to do so in Article VI?

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