Monday, April 1, 2013
The United States District Court for the Southern District of Indiana last week ruled in Buquer v. City of Indianapolis that two provisions of Indiana's immigration law, SEA 590, were preempted by federal law. The ruling on one of the provisions, Section 20, followed the Supreme Court's ruling last summer in Arizona v. United States. (H/t Indianalawblog.com)
The ruling permanently enjoins Sections 18 and 20 of SEA 590.
Section 20 says that an Indiana officer "may arrest a person when the officer has . . . a removal order issued for the person by an immigration court; a detainer or notice of action for the person issued by the United States Department of Homeland Security; or probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. Sec. 1101(a)(43)). The court ruled that Section 20 was preempted for the same reason that a similar provision in SB 1070 was preempted in Arizona v. United States:
Similarly, in the case before us there is no indication that state or local law enforcement officers would be required to consult federal immigration officers before effecting an arrest . . . . [W]here the federal government has exercised it discretion to release an individual who has had a removal order issued, the subsequent arrest of that person by Indiana law enforcement officers would directly conflict with the federal decision, obviously and seriously interfering with the federal government's authority in the field of immigration enforcement.
Op. at 19-20. The court said that "it is even more apparent with [the section's] authorization of the arrest of individuals who have been issued a notice of action." That's because such notices are inherently non-criminal. The court also ruled that Section 20 violates the Fourth Amendment, because it allows a warrantless arrest for a non-criminal action.
Section 18 outlaws the use of a consular identification document, or CID--an identification issued by the government of a foreign state for the purpose of providing consular services in the United States to a national of the foreign state. The court said that Section 18 "directly interferes wtih the rights bestowed on foreign nations by treaty by virtually nullifying the issuance of one of the tools used by foreign nations to exercise those rights." Op. at 29. "It is also clear that such a sweeping prohibition has the potential to directly interfere with executive discretion in the field of foreign affairs." Id.
The same court earlier rejected three state senators' effort to intervene in the case. The senators argued that because they voted for SEA 590, they had a sufficient interest in the case. But the court held that they did not satisfy standing requirements under Coleman v. Miller, because the law actually passed. "We find that the three legislators here have not alleged a vote nullifcation injury sufficient to bestow standing in this case." Op. at 7.