Advance The Journal of the ACS Issue Groups Volume 6 Table of ConTenTs | fall 2012 Restrictive State and Local Immigration Laws: Solutions in Search of Problems Pratheepan Gulasekaram and S. Karthick Ramakrishnan Title IX and the New Spending Clause Emily J. Martin The New Wave of Election Regulation: Burden without Benefit Justin Levitt Promoting Opportunity through Impact Statements: A Tool for Policymakers to Assess Equity Alan Jenkins, Juhu Thukral, Kevin Hsu, Nerissa Kunakemakorn, and Megan Haberle Nevada Commission on Ethics v. Carrigan: Recusing Freedom of Speech Jeffrey M. Shaman The Converging Logic of Federalism and Equality in Same-Sex Marriage Recognition Mae Kuykendall Scapegoating Social Security Disability Claimants (and the Judges Who Evaluate Them) Jon C. Dubin and Robert E. Rains “After” the War on Drugs: The Fair Sentencing Act and the Unfinished Drug Policy Reform Agenda Kara Gotsch With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate Frederick Mark Gedicks 1333 H St., NW, 11th Floor Washington, D.C. 20005 www.ACSLaw.org 202-393-6181 Copyright © 2012 American Constitution Society for Law and Policy Advance The Journal of the ACS Issue Groups Table of ConTenTs 1 Introduction Restrictive State and Local Immigration Laws: 5 Solutions in Search of Problems Pratheepan Gulasekaram and S. Karthick Ramakrishnan Title IX and the New Spending Clause 23 Emily J. Martin The New Wave of Election Regulation: Burden without Benefit 39 Justin Levitt Promoting Opportunity through Impact Statements: 61 A Tool for Policymakers to Assess Equity Alan Jenkins, Juhu Thukral, Kevin Hsu, Nerissa Kunakemakorn, and Megan Haberle Nevada Commission on Ethics v. Carrigan: 81 Recusing Freedom of Speech Jeffrey M. Shaman The Converging Logic of Federalism and Equality 91 in Same-Sex Marriage Recognition Mae Kuykendall Scapegoating Social Security Disability Claimants 109 (and the Judges Who Evaluate Them) Jon C. Dubin and Robert E. Rains “After” the War on Drugs: The Fair Sentencing Act 125 and the Unfinished Drug Policy Reform Agenda Kara Gotsch With Religious Liberty for All: A Defense of the Affordable 135 Care Act’s Contraception Coverage Mandate Frederick Mark Gedicks ACS BoArd of direCtorS Lisa Blue Philippa Scarlett David M. Brodsky Judith Scott Elizabeth J. Cabraser Theodore M. Shaw Mariano-Florentino Cuéllar Reva Siegel Peter B. Edelman, Chair Cliff Sloan Jay W. Eisenhofer Geoffrey R. Stone Faith E. Gay Stephen D. Susman Linda Greenhouse Daniel Tokaji Dennis J. Herrera Christine A. Varney Dawn Johnsen Agatha M. Cole, Student Board Pamela S. Karlan Member, Benjamin N. Cardozo Judith L. Lichtman School of Law Abner Mikva Wade Gibson, Student Board Member, Andrew J. Pincus Yale Law School Robert Raben ACS BoArd of AdviSorS Brooksley E. Born Christopher Edley, Jr. Mario M. Cuomo Shirley M. Hufstedler Drew S. Days III Frank I. Michelman Walter E. Dellinger III William A. Norris Maria Echaveste Janet Reno Caroline Fredrickson, President The Journal of the ACS Issue Groups 1 Advance dvance, the Journal of the Issue Groups of the American Constitution Society for Law and Policy (ACS), is published annually by ACS. Our mission is to promote the vitality of the U.S. Constitution and the fun- Adamental values it expresses: individual rights and liberties, genuine equality, access to justice, democracy and the rule of law. Each issue of Advance features a collection of articles that emanate from the work of ACS’s Issue Groups. This edition of Advance features a selection of Issue Briefs written for ACS in the preceding several months, on topics spanning the breadth of the Issue Groups. ACS Issue Briefs—those included in Advance as well as others avail- able at www.acslaw.org—are intended to offer substantive analysis of legal or policy issues in a form that is easily accessible to practitioners, policymakers and the general public. Some Issue Briefs tackle the high-profile issues of the day, while others take a longer view of the law, but all are intended to enliven and enrich debate in their respec- tive areas. ACS encourages its members to make their voices heard, and we invite those interested in writing an Issue Brief to contact ACS. We hope you find this issue’s articles, which span a range of topics, engaging and edifying. The Journal of the ACS Issue Groups 3 ACS Issue Groups ACS Issue Groups are comprised of legal practitioners and scholars working together to articulate and publicize compelling progressive ideas. Access to Justice The Access to Justice Issue Group considers the barriers that deny access to our civil justice system and fo- cuses attention on ways to ensure that our justice system is truly available to all. Constitutional Interpretation and Change The Constitutional Interpretation and Change Issue Group promotes persuasive and accessible methods of interpretation that give full meaning to the guarantees contained in the Constitution, and debunks the pur- portedly neutral theories of originalism and strict construction. Criminal Justice The Criminal Justice Issue Group examines the administration of our criminal laws and the challenges that such administration poses to our nation’s fundamental belief in liberty and equality. Democracy and Voting The Democracy and Voting Issue Group focuses on developing a comprehensive vision of the right to vote and to participate in our political process. Economic, Workplace, and Environmental Regulation The Economic, Workplace, and Environmental Regulation Issue Group addresses a broad array of issues in labor law, environmental protection, economic opportunity, and administrative law. Equality and Liberty The Equality and Liberty Group addresses means of combating inequality resulting from race, color, ethnic- ity, gender, sexual orientation, disability, age and other factors. First Amendment The First Amendment Issue Group explores the appropriate relationship between church and state in contem- porary society, as well as the rights of free speech, free press, and free association. Judicial Nominations The Judicial Nominations Issue Group focuses attention on the growing vacancy crisis in the federal judiciary and encourages Congress and the Administration to prioritize judicial confirmations. Separation of Powers and Federalism The Separation of Powers and Federalism Issue Group addresses the proper balance of power between the three branches of government, as between the federal government and the states. Restrictive State and Local Immigration Laws: Solutions in Search of Problems Pratheepan Gulasekaram* and S. Karthick Ramakrishnan† n its 2012 Arizona v. United States decision, the Supreme Court mostly struck down Arizona’s unilateral attempt to create and enforce its own immigration enforcement scheme, intended to diminish the undocumented immigrant popu- Ilation within the state, and presumably the nation as well. Nevertheless, one impor- tant provision of the state law—directing state and local law enforcement officers to check the immigration status of those whom they stop, arrest, or detain—survived the Court’s review and is now in effect. This outcome, both in what was enjoined and what was not, is significant for the field of immigration federalism. Similar cases from Alabama and Georgia will likely be appealed to the Supreme Court, and the laws of several local jurisdictions will be affected by Arizona and pending federal court cases. While a majority of the Court reaffirmed federal supremacy in the field of immigra- tion, it also continued the process of carving out areas of appropriate subfederal, i.e. state and local, participation. The Arizona dissents viewed state power even more expansively, including one opinion suggesting that states had the inherent authority to expel unwanted persons from within their borders. An important, yet overlooked, aspect of the case is the factual assumptions about unlawful migration, and the public policy challenges caused by such migration, prof- fered by both the majority and dissenting opinions. Justice Kennedy, writing for the Court, noted “the pervasiveness of federal regulation does not diminish the impor- tance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration.” While he did not specify what those consequences are, Justice Scalia’s dissent was much more explicit: Arizona bears the brunt of the country’s illegal immigration prob- lem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so.1 * Assistant Professor of Law, Santa Clara University (J.D., Stanford Law School). † Associate Professor, University of California, Riverside (PhD, Political Science, Princeton University). The ideas presented in this Issue Brief are developed in detail in Gulasekaram and Ramakrishnan, The New Immigration Federalism (awaiting submission, draft on file with authors) (forthcoming 2013), from which we have excerpted selected portions here. In addition, the politicized account of sub-federal immigration lawmaking is developed in detail in Ramakrishnan and Gulasekaram, The Importance of the Political in Immigration Federalism, ARIZ. ST. L. J. (forthcoming 2012). This Issue Brief was first released by ACS in November 2012. 1 132 S. Ct. 2492, 2522 (Scalia, J. dissenting). 6 Advance Notably, despite relying