Remember when we used to talk about “the imperial presidency?” Oh, but we only talk that way when irksome cowboys or B-movie stars occupy the White House. James Taranto suggests it might be time to revive discussion of the imperial presidency.

Taranto raises the question of the powerful prez in connection with the administration’s suit against the state of Arizona.   

 If you are following U.S. v. Arizona, you know that the key issue is something called preemption-does the Arizona law preempt federal law (which, of course, is preeminent)?

 Acknowledging that the U.S. has the right to pre-empt Arizona’s law, James Taranto of the Wall Street Journal nevertheless turns the preemption issue on its head:

The real issue in this case is not whether the federal government has the power to pre-empt Arizona’s immigration law, as it asserts in the lawsuit. It unquestionably does. The question is whether Washington has properly exercised that power.

In De Canas v. Bica (1976), the U.S. Supreme Court considered a challenge to a California law barring employers from “knowingly employing” illegal aliens “if such employment would have an adverse effect on lawful resident workers.” Migrant farmworkers sued, claiming that the law was an unconstitutional intrusion into an area of federal jurisdiction. In an 8-0 decision written by Justice William Brennan, the court upheld the California law.

Some of Brennan’s opinion flies in the face of the Arizona law.

But he also makes clear that the power to pre-empt or sanction state laws in an area of federal interest rests with Congress, not the president. This would seem to suggest that if the Arizona law is consistent with federal law and Congress has not expressly barred action by states, the Arizona law should stand.

A large part of the administration’s argument, by contrast, is that the Arizona law is inconsistent with federal immigration policy–i.e., with the executive branch’s decisions about how to enforce laws passed by Congress. An important question for the court, then, will be whether Congress has delegated its authority to pre-empt state laws by granting discretion over law enforcement to the president.

In other words, this is a case about the balance of power within the federal government, with the Obama administration on the side of expanding the authority of the executive branch.