Friday, April 20, 2012

Ninth Circuit: Arizona Proof-of-Citizenship for Registration Unconstitutional

The en banc Ninth Circuit this week in Gonzalez v. Arizona overturned Arizona's requirement that prospective voters in Arizona provide proof of U.S. citizenship in order to register.  But the court also upheld the state's requirement that registered voters show ID to cast a ballot at the polls.

The case is the latest ruling on Arizona's many attempts to clamp down on illegal immigration--just a week before the Supreme Court will hear arguments on Wednesday on S.B. 1070.  It's also the latest ruling on the many attempts in the states to tighten registration and voting requirements.  The case suggests that states may face difficulties in tightening registration requirements for federal elections, even if they have flexibility in enacting voter ID laws at the polls.  (The Supreme Court rejected a Fourteenth Amendment Equal Protection challenge to Indiana's voter ID law in 2008 in Crawford v. Marion County.  Under Crawford, voter ID laws are subject merely to a balancing test--at least unless plaintiffs can show that a particular voter ID law creates a much more significant barrier to voting than the plaintiffs demonstrated in Crawford.)

The Ninth Circuit ruled that Arizona's registration provision conflicted with the National Voter Registration Act of 1993, and that the NVRA superceded Arizona's registration provision.  The NVRA prescribes three ways that states can register voters for federal elections: application with an application for a driver's license; mail application using a federal form designed by the Eelection Assistance Commission; and in-person registration.  The NVRA also requires states to create a combined driver's license and voter registration form, and it delegates to the EAC the creation of a nationally uniform Federal Form for mail and in-person registration for federal elections.  (The key language: the NVRA says that states must "accept and use" the Federal Form developed by the EAC.)  States may (but are not required to) create their own forms for federal elections, so long as those forms meet NVRA criteria.  (State forms do not replace the Federal Form; the Federal Form is still required.)

The NVRA says that the Federal Form "may require only such identifying information . . . as is necessary to enable the [state] to assess the eligibility of the applicant."  It also says that the Federal Form must include an "attestation that the applicant meets [citizenship requirements]."  Under the NVRA, the EAC created a Federal Form that asks "Are you a ctiizen of the United States of America?"  The Form says that an applicant should not complete the form if he or she answered no.

While neither the NVRA nor the EAC Federal Form requires proof of citizenship (beyond the attestation), Arizona's Proposition 200 does.  It says that "[t]he county recorder shall reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship."  (Arizona's requirement applies to both the Federal Form and to the state form.  The EAC earlier rejected Arizona's proposal to modify the Federal Form consistent with Prop 200.)  Arizona's Prop 200 thus goes beyond and adds to the requirements of the NVRA and the EAC Federal Form.

The court ruled that the additional ID requirement in Arizona's Prop 200 conflicted with the NVRA and the EAC Federal Form.  It sais that the NVRA doesn't give states room to add to the Federal Form--exactly what Prop 200 sought to do.  And because Congress enacted the NVRA under the Elections Clause, the NVRA trumps Arizona's law.  The Elections Clause says that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."  The court ruled that a valid enactment under the Elections Clause, like the NVRA, preempts conflicting state law, with no presumption against preemption (as in more traditional preemption cases, under the Supremacy Clause, because the Elections Clause does not require the same kind of balancing of federalism concerns). 

But while the court ruled the registration provision unconstitutional, it upheld the voter ID provision against challenges under Section 2 of the Voting Rights Act, the 24th Amendment, and the Fourteenth Amendment Equal Protection Clause.  As to the Section 2 challenge, the court said that the plaintiffs failed to produce evidence showing that "Latinos' ability or inability to obtain or possess identification for voting purposes . . . resulted in Latinos having less opportunity to participate in the political process and to elect representatives of their choice."  As to the constitutional challenges, the court applied a Crawford-like balancing analysis and upheld the law.

Chief Judge Kozinski wrote in concurrence that "this is a difficult and perplexing case," and that the "statutory language we must apply is readily susceptible to the interpretation of the majority, but also that of the dissent."  He concurred in full, even though he dissented in the prior three-judge panel.  (He explains why on page 4196.)

Judge Berzon, joined by Judge Murguia, concurred but suggested that the plaintiffs could make out a Section 2 case against voter ID, but that under the current record they didn't.

Judge Pregerson concurred and wrote that the plaintiffs did make out a Section 2 case against voter ID.

Judge Rawlinson, joined by Judge Smith, concurred on voter ID, but dissented on the registration requirement.

SDS

April 20, 2012 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, News, Opinion Analysis, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Thursday, March 22, 2012

Generic Drug Claims Dismissed in Wake of PLIVA

The Supreme Court ruled last year in PLIVA v. Mensing that federal prescription drug laws preempt plaintiffs' state failure-to-warn claims against generic drug manufacturers, even as it ruled three years again in Wyeth v. Levine that similar federal laws do not preempt plaintiffs' state law claims against brand-name manufacturers.

The New York Times this week examined the impact of Mensing and, unsurprisingly, found that courts are routinely dismissing state law claims against generic manufacturers, and that many generic prescription drug users have no idea that they are waiving their claims against manufacturers simply by opting for a generic equivalent over a brand-name drug:

The Supreme Court ruling affects potentially millions of people: nearly 80 percent of prescriptions in the United States are filled by a generic, and most states permit pharmacists to dispense a generic in place of a brand name.  More than 40 judges have dismissed cases against generic manufacturers since the Supreme Court ruled last June, including some who dismissed dozens of cases consolidated under one judge.

The article reminds readers that Congress could easily change the landscape and allow suits against generics to go forward.  But it doesn't look like that'll happen anytime soon.

SDS

March 22, 2012 in Cases and Case Materials, News, Preemption | Permalink | Comments (0) | TrackBack (0)

Fifth Circuit Holds Immigration Housing Ordinance Unconstitutional

In its opinion 762px-Polyphony2in Villas at Parkside Partners v. City of Farmers Branch Texas, the Fifth Circuit affirmed the district judge's conclusion finding an ordinance unconstitutional pursuant to the Supremacy Clause, as preempted by federal law.

The ordinance, reproduced as a 15 page appendix to the majority opinion, is rather detailed, but essentially requires tenants to have licenses that demonstrated their citizenship or legal status.  The Fifth Circuit placed emphasis on the ordinance's legislative history, including previous attempts to regulate immigrants and statements by city officials such as the ordinance was an effort to “help reduce the illegal immigrant population in Farmers Branch.”  The majority also noted that the ordinance itself provided it was intended to regulate immigration, not housing.  The Fifth Circuit therefore stated:

The conclusion that the Ordinance is not a local housing regulation, and instead determines which aliens may reside in Farmers Branch, necessarily compels our conclusion about preemption of the Ordinance as a regulation of immigration contrary to federal authority. Because we conclude that the sole purpose of the Ordinance is to target illegal aliens and effect their removal from the City, we also conclude that the Ordinance is an impermissible regulation of immigration posing an obstacle to federal control of immigration policy.

In its analysis, the panel majority extensively cited the Third Circuit's decision in Lozano v. City of Hazelton: although acknowledging that the entirety of the Third Circuit’s judgment has been vacated by the United States Supreme Court, "we nevertheless find Lozano’s reasoning instructive in this case because the Third Circuit was faced with a housing regulation squarely analogous to the one in the instant case, and the Supreme Court’s decision in [Chamber of Commerce v.] Whiting does not affect that reasoning."

Dissenting in part, Judge Jennifer Walker Elrod disagreed with this assessment, arguing that the ordinance is more nuanced than that and does regulate housing.  Yet Judge Elrod's opinion concurs regarding the unconstitutionality of the "judicial review" portion of the ordinance "because it allows a state court to review whether the occupant is lawfully present, while giving the federal determination “a rebuttable presumption as to the individual’s immigration status” and making conclusive only those federal determinations that “would be given preclusive effect on the question."  In other words, this allowed state courts to "revisit federal determinations of immigration status" and "opens the door for conflicting state-federal rulings on an immigrant’s lawful status," which certainly raises the possibility of conflict and therefore serves as an obstacle to federal law.

Next month, the United States Supreme Court will be hearing oral arguments on portions of Arizona's controversial SB1070, passed nearly two years ago.  While SB1070 does not seek to regulate local housing, its holding of preemption could certainly effect the constitutionality of the ordinance of Farmers Branch, Texas.

RR
[image via]

UPDATE HERE

March 22, 2012 in Opinion Analysis, Preemption, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, March 9, 2012

Alabama Immigration Law HB 56: Additional Subsections Enjoined by the Eleventh Circuit

Os_emigrantesIn a brief order, the Eleventh Circuit has enjoined two additional subsections of Alabama's controversial HB56 regulating immigration, portions of which it had previously enjoined.

The order now enjoins:

H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.

H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.

Thus, the only two subsections that seem to remain in effect are:

H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.

H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.

Judge Rosemary Barkett had dissented from the opinion concluding that these subsections should remain in effect.

RR
[image via]

March 9, 2012 in Current Affairs, Equal Protection, Preemption | Permalink | Comments (0) | TrackBack (0)

Saturday, March 3, 2012

Federal Locomotive Act Preempts State Law Claims Related to Asbestos Exposure

The Supreme Court ruled this week in Kurns v. Railroad Friction Products Corp. that the federal Locomotive Inspection Act preempted the petitioner's state-law design-defect and failure-to-warn claims arising out of harms from exposure to asbestos.  The ruling reaffirms an 85-year-old case holding that the LIA's delegation to the ICC was a "general one" and that the LIA therefore occupied the field.

George Corson was a welder and machinist for a railroad carrier.  After his retirement, he was diagnosed with mesothelioma.  He and his wife sued the Railroad Friction Products Corporation and Viad Corp in state court for design defect and failure to warn of the dangers posed by asbestos.

But the state law claims ran up against the LIA, which reads, in relevant part,

A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtences--

(1) are in proper condition and safe to operate without unnecessary danger of personal injury;

(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and

(3) can withstand every test prescribed by the Secretary under this chapter.

49 U.S.C. Sec. 20701.

200px-Train_wreck_at_Montparnasse_1895Justice Thomas wrote for the Court that the LIA preempted the state law claims.  Justice Thomas relied on the Court's ruling in 1926 in Napier v. Atlantic Coast Line R. Co. that the LIA occupies the field and thus, under field preemption, preempts state law claims like the petitioner's.  The Court rejected the petitioner's attempt to work around Napier.  (According to the Court, the petitioners didn't argue that Napier should be overruled.  Instead, they tried to show that their claims didn't fall within Napier's field.  The Court rejected this.)

Justice Kagan concurred, writing that she "doubt[s] this Court would decide [Napier] in the same way today." 

Justice Sotomayor concurred and dissented, jointed by Justices Ginsburg and Breyer, aruing that under Napier the LIA preempts the petitioner's design-defect claim, it does not preempt petitioner's failure-to-warn claims: "In my view, the latter escape pre-emption because they impose no state-law requirements in the field reserved for federal regulation: 'the equipment of locomotives.'"  (Quoting Napier, 272 U.S. 605, 612.)

SDS

[Image: Train Wreck at Montparnasse, 1895, Wikimedia Commons]

March 3, 2012 in Cases and Case Materials, Congressional Authority, Federalism, Preemption | Permalink | Comments (0) | TrackBack (0)

Thursday, January 26, 2012

Third Circuit: Federal Buy America Act Does Not Preempt State Law

A three-judge panel of the Third Circuit ruled this week in Mabey v. Schoch that the federal Buy America Act and implementing regulations do not preempt Pennsylvania's Steel Act.  Both acts require the use of steel made in the United States for public works projects funded by the federal and state governments, respectively.  But the Buy America Act has broader exceptions, including, importantly, a provision that says that the Act is satisfied when a project "[i]ncludes no permanently incorporated steel or iron materials."

The case arose after the state, citing the state Steel Act, declined to use Mabey's temporary bridge on a project, because Mabey gets its steel from the United Kingdom.  Pennsylvania previously contracted with Mabey, notwithstanding the state Steel Act.  But it apparently changed its policy, decided to enforce the Steel Act against Mabey, and, according to Mabey, forced Mabey to cancel four of its state contracts.

Mabey sued, alleging that exception in the federal Buy America Act preempted the state Steel Act, and that its temporary bridge met the federal Act's provision relating to "no permanently incorporated steel or iron materials."  The Third Circuit rejected this claim.  It ruled that another section of the federal Buy America Act and its regulations, read as a whole, did not clearly reflect congressional intent to preempt; instead, they left room for states to issue more stringent regulations--exactly what Pennsylvania did here.  Thus, the state's Steel Act restrictions applied with their full force to Mabey.

The court also rejected Mabey's Dormant Commerce Clause, Contract Clause, and equal protection claims.  As to the dormant Commerce Clause, the court ruled that the Steel Act fell under the market participant exception (because Pennsylvania was a market participant when it contracted for public works) and, moreover, that Congress authorized Pennsylvania to discriminate against interstate commerce through the federal Buy America Act.  The court said that the state's late-coming enforcement of the Steel Act against Mabey didn't violate the Contract Clause, because the Act was on the books since Mabey started contracting with the state, and the state agency's decision to enforce it didn't amount to "legislative authority subject to scrutiny under the Contract Clause."  And finally the court ruled that the state didn't violate the Equal Protection Clause, because the state's action--first not enforcing, then enforcing, the Steel Act--was rational: "A state agency could rationally determine that application of domestic steel requirements to items used at the discretion of the contractor is too onerous and difficult to enforce."

SDS

January 26, 2012 in Cases and Case Materials, Contract Clause, Dormant Commerce Clause, Equal Protection, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, December 12, 2011

Supreme Court to Hear Arizona SB1070 on Preemption Issue

UPDATE: COURT'S OPINION JUNE 25, 2012 here]

The United States Supreme Court has just granted Arizona's petition for writ of certiorari in Arizona v. United States involving Arizona's controversial immigration statute SB 1070.  Justice Elana Kagan did not participate in the grant, and will presumably not participate in the decision on the merits. 

The petition for writ of certiorari filed by Arizona seeks review of the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of as SB 1070.   Arizona, represented by Paul Clement, contends it bears the brunt of illegal immigration and that the federal government is not sufficiently addressing the problem, setting the factual and political context for its claim that its statute is not preempted under the Supremacy Clause.  The petition argues that "The Ninth Circuit’s rule—that States may not take any investigative or enforcement action against aliens based on their civil violations of the immigration laws without an express permission slip from Congress—directly conflicts with the approach" taken in other circuits.  The petition also argues that the Ninth Circuit opinions contradicts "Our Federalism" by failing to recognize co-operative enforcement and implicitly assuming that immigration is a matter of nearly exclusive federal concern.  The Ninth Circuit completely misconstrued preemption doctrine according to the petition, perhaps most egregiously when it allowed "complaints by foreign government officials and the disagreement of the Executive Branch to trump congressional intent."

800px-Flag_of_Arizona.svg
Arizona's SB1070 has spawned other state laws and other litigation: Alabama HB56 is especially notorious and complex, with two decisions from the district judge, a brief Eleventh Circuit opinion,  and a recent complaint regarding denial of marriage licenses. There are also district court cases from Georgia and Indiana, and more complex litigation involving the Hazelton, PA ordinance (Third Circuit opinion, on remand back to Third Circuit), and South Carolina is a recent and important addition.  

The Court most recently considered preemption in the context of immigration in another case from Arizona, Chamber of Commerce v. Whiting, affirming the Ninth Circuit but in a fractured opinion involving express preemption. 

RR

December 12, 2011 in Current Affairs, Federalism, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, November 28, 2011

Alabama's HB56: Immigrants' Rights to Housing and to Marry

Portions of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, Act 2011-535 - - - more popularly known as HB56 - - - have been enjoined by the district judge in two very lengthy separate opinions in the companion cases of United States v. Alabama and Hispanic Interest Coalition of Alabama v. Bentley, and additional sections enjoined by the Eleventh Circuit.   However, new litigation continues to challenge aspects of Alabama's immigration scheme.

In the Complaint in Central Alabama Fair Housing Center v. Magee, housing advocacy groups challenge section 30 of HB56 that makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.   This "business transaction" apparently includes complying with other Alabama statutes that require "submitting a payment for the annual manufactured home registration fee and obtaining a current identification decal," as well as a permit to move a manufactured or mobile home.  

Thus, as United States District Judge Myron Thompson observed in his opinion granting a TRO, the challenge is an "as-applied" one that "raises a host of issues not considered" by the previous courts.  Judge Thompson focused on the preemption claim, finding a likelihood of prevailing on its merits.  He found that "the evidence reflects that the Alabama Revenue Department and the Elmore County Probate Office initially proposed to use their own, state-created alternative for determining whether, under § 30, an individual has adequately demonstrated his or her lawful citizenship status, but are now in the process of developing a new system that will comply with HB 56."   The process is thus very different from those in which employers utilize E-verify.  As the Judge stated,

What is clear is, first, that the defendants do not now have in place a definite process that will be in sync with federal immigration law and, second, that they will not have a process in place any time soon. The conclusion that the defendants’ current process (or, perhaps to be more accurate, lack of a definite process) conflicts with federal law is inescapable.

The TRO expires December 7, 2011.  A NYT editorial yesterday argued that HB56 is causing Alabama economic damage.

460px-Alabama_Slide_RagWhile the definition of "business transaction" in §30 of HB56 is broad, subsection(a) specifically exempts marriage licenses: "Business transaction" "does not include applying for a marriage license."  Yet another complaint filed in federal court, Loder v. McKinney, contends that probate offices charged with issuing such licenses are requiring proof of immigration status, despite previous opinions by the Alabama Attorney General.  As the complaint alleges, the probate court of Montgomery county lists the requirement of proof of "legal presence" on its website:

Requirements For Persons 18 years or older

Non-citizens of the United States must provide proof of legal presence in the United States in the form of valid immigration documents or passport.

Each applicant must provide one of the following:

                1. An official Picture ID (passport, military ID, State issued ID, Driver's License).
                2. An original certified copy of the state issued birth certificate (hospital copy not acceptable) and original social security card.
                3. U. S. Government issued Immigration Services Picture ID Card (green card, visa, alien resident card, etc.).

The complaint alleges a fundamental right to marry and a violation of the Fourteenth Amendment's due process and equal protection clauses.  More about the litigation is available on the Southern POverty Law Center's website here.

RR
[image via]

November 28, 2011 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Preemption | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 8, 2011

Nebraska and the Keystone XL Pipeline: State Bills May Have Preemption and Dormant Commerce Clause Issues

Nebraska's location in the "heartland" of the continent makes it an attractive - - - and some would say necessary - - - crossing of the controversial Keystone XL Pipeline transporting crude oil from the Athabasca Oil Sands of Canada's Alberta Province to the refineries of Oklahoma and the Gulf of Mexico states in the US. 

Pipeline-map1Nebraskans, however, may not be so keen to have the pipeline crossing their state.  At the moment, there are no less than 5 bills in the Nebraska legislature that seek to regulate some aspects of the pipeline.  The first, LB1, introduced on Nov 1, was the subject of hearings on November 7. It would create the Major Oil Pipeline Siting Act, defining a major oil pipeline as one greater than six inches in inside diameter and establishing an application process for the routing of a major oil pipeline including public hearings regarding siting proposals and evaluating and approving applications before a company was granted eminent domain rights to build the pipeline.   LB 3 and LB4 as well as LB5 and LB6  also regulate aspects of the pipeline, although somewhat less expansively.  For example, LB6 would require the carrier to file proof of an indemnity bond of $500 million with the Nebraska secretary of state.

Any state law could be preempted by the Pipeline Safety Act, 49 U.S.C. § 60101 et seq., concerning safety of interstate pipeline construction.  However, as the LA Times reports, amid mounting criticism of the federal government's approval of the pipeline, the State "Department’s inspector general's office announced Monday that it was opening an investigation to determine whether the department had complied with federal laws in evaluating the $7-billion project," and that this is "in response to charges by pipeline opponents that builder TransCanada Corp. has improperly influenced what is supposed to be an independent assessment of whether the pipeline is in the national interest and meets U.S. environmental standards."  SEE UPDATE BELOW.

Additionally, any state law could run afoul of the dormant commerce clause.  Nebraska's bills do not seem protectionist per se and seem to be for the legitimate and non-economic purpose of protecting the local environment.  The most applicable case is most likely Kassel v. Consol. Freightways Corp., 450 U.S. 662 (1981), a case populating many constitutional law casebooks and involving Iowa's regulation of the length of tractor trailers.  In Kassel, any discussion of the Iowa regulation's burden on interstate commerce is inextricably tied to Iowa's location and the choices of other surrounding states; recall that Iowa's safety choice appeared less "renegade" when compared to similar regulations in New England as Rehnquist argued in dissent.

Any effort by Nebraska to regulate the XL Pipeline is sure to engender litigation.  The TransCanada Corporation has already made available legal memoranda arguing against the constitutionality of Nebraska regulation.  And arguing for the constitutionality of possible acts by Nebraska, legal memoranda are posted on the site of Bold Nebraska.

UPDATE: 10 November 2011: The State Department has put the XL Pipeline on hold with approval from the White House.

RR

November 8, 2011 in Current Affairs, Dormant Commerce Clause, Federalism, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 1, 2011

DOJ Files Complaint Against South Carolina Immigration Law

The Federal Government's complaint in United States v. South Carolina seeks an injunction against various portions of South Carolina's immigration statute, Act 69, scheduled to become effective January 1, 2012. 

As expected, the complaint alleges that the state act is pre-empted by federal law and is therefore void under the Supremacy Clause, Article VI.  Just as the South Carolina statute imitates other state laws, the federal complaint makes similar arguments.

Of special interest, however, is paragraph 33 of the DOJ complaint:

33. On June 27, 2011, Governor Nikki R. Haley signed into law Act No. 69, which
contains several provisions designed to work together to discourage and deter the entry into and presence of unlawful aliens in South Carolina through a statute that regulates numerous aspects of these aliens’ lives. Indeed, Governor Haley, in signing Act No. 69, said that one purpose of the law is to “make sure” that unlawfully present aliens find “another State to go to.” See Governor Nikki Haley Signs Illegal Immigration Reform Bill (video recording), available at http://www.youtube.com/watch?v=BMZikpA3_8U (uploaded by “nikkihaley”).

Indeed, the governor's remark appears at the segment starting at 2:35 in the video below:

 

This comment lends credence to the federal government's argument that individual state laws frustrate the implementation of a national immigration policy.

The complaint's most concise articulation of the government's implied pre-emption occurs in paragraph 35:

    . . . Act No. 69 conflicts with and otherwise stands as an obstacle to Congress’s demand for
sufficient flexibility in the enforcement of federal immigration law to accommodate the
competing interests of immigration control, national security and public safety, humanitarian
concerns, and foreign relations – a balance implemented through the supervision and policies of the President and other executive officers with the discretion to enforce federal immigration laws. See 8 U.S.C. §§ 1101 et seq. South Carolina’s punitive scheme would further undermine federal foreign policy, in that the federal government has – as a matter of reciprocal, bilateral understandings – established that unlawfully present foreign nationals (who have not committed some other violation of law) should be removed without criminal sanction or other punitive measures and that the same treatment should be afforded to American nationals who are unlawfully present in other countries. Act No. 69 would thus interfere with federal policy and prerogatives in the enforcement of the U.S. immigration laws and the conduct of foreign affairs. All of these provisions are backed by a private right of action that ensures a policy of full enforcement by every political subdivision in the State (Section 1).

Act 69 (also known as SB20) is also the subject of a complaint filed in federal court in October, Lowcountry Immigration Coalition v. Haley, alleging the unconstitutionality of the law. 

RR

 

November 1, 2011 in Current Affairs, Federalism, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Monday, October 31, 2011

Ninth Circuit on Federal Aviation Administration Authorization Act Preemption

A divided three-judge panel of the Ninth Circuit on Monday ruled on the preemptive effects of the Federal Aviation Administration Authorization Act in American Trucking Associations, Inc. v. City of Los Angeles.  The case involves five provisions of concession agreements that the Port of Los Angeles required of all drayage truck operators as part of the Port's Clean Truck Program.  (Drayage trucks tranport cargo from the Port to customers, railroads, or other trucks.)  Those provisions are:

  • The "employee-driver provision," which requires drayage truck operators to transition over five years to using 100% employee drivers rather than independent owner-operators.
  • The "off-street parking provision," which requires drayage truck operators to submit an off-street parking plan for its trucks to maintain compliance with parking restrictions of local municipalities.
  • The "maintenance provision," which makes drayage truck operators responsible for vehicle maintenance and safety.
  • The "placard provision," which requires drayage truck operators to post a placard on all its trucks covered by a concession agreement; the placard must display a phone number to report concerns about truck emissions, safety, and compliance.
  • The "financial capability provision," which requires a drayage truck operator to demonstrate that it possesses the financial capability to perform these and other obligations under the concession agreement.

The FAAA Act says as a "general rule" that "a State [or] political subdivision of a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property."  49 U.S.C. Sec. 14501(c)(1).  The relevant saving clause says that the FAAA Act does not "restrict the safety regulatory authority of a State with respect to motor vehicles."  49 U.S.C. Sec. 14501(c)(2)(A).

Thus the court wrote that it must first determine whether each concession agreement provision "relate[s] to a price, route, or service of a motor carrier."  If so, then the court must next determine "whether the provision 'has the force and effect of law'--that is, whether the provision was enacted pursuant to the State's regulation of the market, rather than the State's participation in the market in a proprietary capacity."  If the provision meets the market participant exception, it is not preempted.  But if the provision has the force of law, then the court must determine whether it fits within the saving clause.

Here's what the court said about whether the FAAA Act preempted each provision:

  • The employee driver provision isn't saved from preemption by the market participant exception: it has the force of law (it doesn't meet the market participant exception) because it seeks to impact third-party (driver) wages--a subject of negotiation between the drayage operators and the drivers alone, and not the Port.
  • The off-street parking provision is not preempted, because it meets the market participant exception.
  • The maintenace provision is not preempted, because it is a safety regulation and fits within the saving clause.
  • The placard provision is not preempted, because it is a safety regulation and fits within the saving clause.
  • The financial capability provision is not preempted, because it does not relate to prices, routes, or services.

Judge Smith dissented, arguing that the market participant exception didn't apply (because "drayage services (not port services) form the relevant market, and the [Port] acts a as a regulator of drayage services; even if the Port qualifies under the exception, the off-street parking provision is preempted, because it affects "parties unrelated to contractual obligations to the Port"; and the placard provision is preempted under another provision of the FAAA Act.

The ruling affirms the lower court ruling that the provisions on off-street parking, maintenance, placard, and financial capability are not preempted.  But it reverses the lower court ruling that the employee driver provision was saved by the market participant exception.

SDS

October 31, 2011 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Saturday, October 22, 2011

Counterclaims of Governor Brewer and Arizona in SB1070 Litigation Dismissed

United States District Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, dismissed the counterclaims filed by Arizona and Governor Jan Brewer in a 22 page Order late Friday.

Sb1070The Arizona/Brewer counterclaim asserted five claims and Judge Bolton rejected each one, although she found that Arizona had standing to raise the claims.

 Arizona's Count One, failure and refusal to achieve and maintain “operational control” of the Arizona-Mexico borde, Count Three, abdication of statutory responsibilities (enforcement of the federal immigration laws), and Count Four, declaratory relief regarding State Criminal Alien Assistance Program (“SCAAP”) reimbursement obligations were each denominated as "statutory claims." 

The constitutional counterclaims - - - Count One, the failure and refusal to protect Arizona from invasion and domestic violence under Article IV, Section 4 and Count Five, declaratory relief under the Tenth Amendment - - - were analyzed as subject to issue preclusion given Bolton's previous order, but the Judge also further considered the claims.  As to the "invasion and domestic violence" counterclaim, Judge Bolton found that the claim was nonjusticiable because it was a political question and cited the "six factors" from Baker v. Carr (1962):


[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department;
[2] a lack of judicially discoverable and manageable standards for resolving it;
[3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
[4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
[5] an unusual need for unquestioning adherence to a political decision already made;
[6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Bolton emphasized the lack of "judicially discoverable and manageable standards" for determining what constituted an invasion and domestic violence. 

Regarding the Tenth Amendment counterclaim, Judge Bolton found that Arizona was not being "comandeered" :

Arizona does not point to any federal immigration policy that mandates or compels
Arizona to take any action. The complained of expenditures arise entirely from Arizona’s
own policy choices and independent constitutional obligations and are not incurred as a result
of any federal mandate. These state costs do not give rise to a claim under the Tenth
Amendment.

While the ruling was not unexpected, it further focuses attention on the petition for writ of certiorari filed by Arizona and Jan Brewer, seeking review of the Ninth Circuit opinion which upheld Judge Bolton's preliminary injunction against SB1070.

RR

October 22, 2011 in Current Affairs, Federalism, Opinion Analysis, Political Question Doctrine, Preemption, Standing, Supremacy Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Friday, October 14, 2011

Alabama Immigration HB56: Additional Provisions Stayed by the Eleventh Circuit

With little substantive discussion in its 16 page Order today, a panel of the Eleventh Circuit Court of Appeals issued an injunction pending appeal on two sections of Alabama's highly controversial immigration law, HB 56.

Recall that on September 28, the district judge enjoined various sections of the statute in very lengthy separate opinions in the companion cases of United States v. Alabama and Hispanic Interest Coalition of Alabama v. Bentley

Ruling on motions for injunction pending appeal, the Eleventh Circuit enjoined section 10 and section 28 of HB56:

Section 10(a) creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States. 

Section 28 requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.

  11thCircuitflagWhile granting injunctions on sections 10 and 28, the Eleventh Circuit panel denied the request to enjoin sections 12(a), 18, 27, and 30. Thus, the following provisions of HB56 remain in effect:

UPDATE HERE

H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.

H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.

H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.

H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.

Judge Barkett dissented as to sections 12 and 18. 

RR

October 14, 2011 in Current Affairs, Federalism, Fundamental Rights, Opinion Analysis, Preemption | Permalink | Comments (2) | TrackBack (0)

Thursday, September 29, 2011

Argument Preview: Standing to Challenge Medicaid Cuts in Douglas

The second case the Court will hear this Term involves a critical question about access to the courts and constitutional enforcement: May a private party sue under the Supremacy Clause to force California to comply with federal Medicaid program requirements?

The case, Douglas v. Independent Living Center, arose out of California’s cuts to its Medicaid program, dubbed Medi-Cal.  In 2008 and 2009, the California legislature slashed Medi-Cal funding in order to help deal with the state’s fiscal crisis.  The legislature cut reimbursement rates for participating Medi-Cal providers by ten percent; it reduced future reimbursement rates by one percent from their pre-2008 levels; and it reduced the maximum contribution paid by Medi-Cal for wages and benefits for in-home supportive services.  The state did not study the impact of these cuts or submit them to federal Medicaid regulators at the Centers for Medicare and Medicaid Services, or CMS, as required by federal law.

Medi-Cal providers and beneficiaries sued in five separate cases in state and federal courts under the Supremacy Clause, arguing that California’s cuts were preempted by federal Medicaid requirements.  In particular, the plaintiffs argued that California’s cuts failed to satisfy the requirements of Section 30(A) of the Medicaid Act, which says that participating states must ensure that state Medicaid payments to health care providers “are consistent with efficiency, economy, and quality of care” and “sufficient to enlist enough providers so that care and services are available . . . to the general population in the geographic area.”  Under Section 30(A), states also have to study the impact of any proposed rate reductions on health care services and submit them to the CMS for review.

In a series of appeals, the Ninth Circuit ruled that the plaintiffs qualified for a preliminary injunction against the state, thus halting the cuts.  The state then appealed to the Supreme Court, arguing that the plaintiffs, as private parties, could not sue under the Supremacy Clause—that private parties could not enforce this structural provision of the Constitution in court without an explicit private right of action or an interference with a fundamental right.

The state argues that the plaintiffs have no private cause of action under either federal law or the Constitution.  As to federal law, the state says that neither Section 30(A), nor any other federal law, explicitly gives plaintiffs a private right of action to enforce Medicaid requirements against a state.  The legislative history of the Medicaid Act only underscores this.  In 1997, Congress revoked the “Boren Amendment,” a portion of the Medicaid Act.  That provision, according to an earlier Supreme Court ruling, gave private parties a right private of action and spawned an explosion of lawsuits challenging state Medicaid rates.  The state argues that Congress’s revocation of the provision suggests that it intended to remove any right of action, not to create one.  Moreover, the state contends, Section 30(A) gives plaintiffs no individual right that they might enforce by way of a civil rights action under Section 1983.

The state says that the plaintiffs also have no right of action under the Supremacy Clause.  The state claims that the Supremacy Clause is not a source of rights but rather a rule of decision for parties already properly before the courts.  The state contends that cases challenging Spending Clause legislation, like the Medicaid Act, which authorizes federal funds only for states that agree to and comply with federal Medicaid requirements, are particularly inappropriate.  This is because state law cannot conflict with federal law under the Spending Clause: any “conflict” only means that the state is not complying with federal requirements and is therefore ineligible for continued federal program funds.  Thus a “conflict” is really no conflict at all; it’s only a state choice to not participate in the program.

Finally, the state notes that the plaintiffs are already participating as amici in an administrative process that tests the Medi-Cal cuts.  The state says that it appealed CMS’s initial rejection of its cuts through an established administrative process; that process is pending.  The state argues that this process is the only appropriate venue for the plaintiffs’ participation in this essentially state-federal dispute.

The plaintiffs counter that the original understanding of the Supremacy Clause and the Court’s subsequent jurisprudence both suggest that they may properly bring their claim.  They say that courts have consistently concluded that a plaintiff could lodge a case against a state for declaratory and equitable relief under the Supremacy Clause—that these claims do not require explicit statutory authorization.  And they say that they need not point to an interference with their rights (to bring a Section 1983 case): their claim under the Supremacy Clause is a constitutional claim that must exist on its own as an incident of the Constitution’s structure and operation.  The plaintiffs claim that they seek to enforce federal preemption under the Supremacy Clause, not (just) the requirements of Section 30(A).

The United States weighed-in on the side of the state.  It argued that the Court could dodge the precise and knotty question by recognizing that this case is special.  This is a Spending Clause case, it says, and, as described above, there simply can be no conflict between state and federal law.  With no conflict, there is no preemption; and with no preemption, there is no Supremacy Clause issue.

The case comes at the complicated intersection of state politics and finance, health care, federalism, and standing—considerations and interests that pull in different directions, at a time when states face increasing fiscal challenges, when health care costs are rising, affecting coverage, and when the other health care issues are on everyone’s mind.  (I need not remind readers that parties on both sides of the Eleventh Circuit ruling overturning the so-called individual mandate filed petitions for review with the Court on Wednesday.) 

For example, a ruling for the state would allow states to continue to balance their budgets on the backs of Medicaid providers and recipients, often their most vulnerable populations, checked only by the administrative process at the CMS, which California has well demonstrated that a state can manipulate (through delay and foot-dragging).  On the other hand, a ruling for the plaintiffs would mean that plaintiffs could tie up states in litigation any time a state wanted to cut Medicaid rates, or to make any other significant changes to their Medicaid programs.  In short, the case is hard.

On a different level, the Court will also have to grapple with private party standing to bring structural claims under the Constitution.  The Court ruled last Term in Bond v. U.S. that a private individual, a criminal defendant, had prudential standing to challenge a federal criminal statute as violating the Tenth Amendment, another structural provision.  If Bond opened the door a little wider for structural claims by private litigants, Reynolds could break it wide open.  That’s because the plaintiffs in Reynolds aren’t already properly before the courts (as Bond was); they are bringing their claim under a structural provision alone.  And they are doing it in the context of a Spending Clause program. 

The Court can easily dodge this bullet, though.  As the U.S. government argues, there really is no conflict in this case between state and federal law that the Supremacy Clause can resolve.  This truth provides the clearest path for a ruling here.  Look for the Court to fall back on it, even if it frustrates private Medicaid providers’ and recipients’ quests to hold their states to federal Medicaid requirements.

SDS

September 29, 2011 in Cases and Case Materials, Federalism, News, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 28, 2011

Alabama Immigration Law HB56 Enjoined in Part by Federal Judge- PART II

UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.

Accompanying her opinion in United States v. Alabama issued today [discussed in part I], Judge Blackburn a while later issued a 100 plus page Memorandum opinion in Hispanic Interest Coalition of Alabama v. Bentley enjoining other portions of the controversial HB56.

401px-Alabama_Theatre Some of the Hispanic Interest Coalition of Alabama's (HICA) challenges were moot by the Judge's opinion in United States v. Alabama issued earlier today.  However, Judge Blackburn found that none of the HICA plaintiffs had standing to challenge HB56 in its entirety, and that HICA did not have standing as an association.   Thus for each challenge, the judge considered standing.  The judge found that HICA plaintiffs did not have standing to challenge one of the more controversial sections, section 28, regarding enrollemnt of students in public schools.

The Judge did grant a preliminary injunction of three separate provisions.

First, Judge Blackburn issued a preliminary injunction of Section 8 of HB56, as preempted by federal immigration law.  HB56 §8 provides:

An alien who is not lawfully present in the United States shall not be permitted to enroll in or attend any public postsecondary education institution in this state. An alien attending any public postsecondary institution in this state must either possess lawful permanent residence or an appropriate nonimmigrant visa under 8 U.S.C. § 1101, et seq. For the purposes of this section, a public postsecondary education institution officer may seek federal verification of an alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c). A public postsecondary education institution officer or official shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States. Except as otherwise provided by law, an alien who is not lawfully present in the United States shall not be eligible for any postsecondary education benefit, including, but not limited to, scholarships, grants, or financial aid.

The judge found that Congressional intent was contrary and clear, and thus the state law was preempted.  Only Congress, the judge stated, may "classify aliens" including for postsecondary education.

Second, the judge issued a preliminary injunction of the last sentences of Sections 10(e), 11(e), and 13(h) based on the Compulsory Process Clause of the Sixth Amendment.  These sentences provide that "A court of this state shall consider only the federal government’s verification in determining whether an alien is lawfully present in the United States."   The judge found that to the extent Sections 10(e), 11(e), and 13(h) of H.B. 56 are interpreted as allowing a defendant to be convicted based on a certificate of nonexistent record (CNR) without testimony from the clerk or officer preparing the report, these sections violate the Confrontation Clause, but because there is no evidence this has occurred, the Confrontation Clause argument does not merit a preliminary injunction.  As to the Compulsory Process Clause challenge, however,  Judge Blackburn ruled that by "limiting evidence admissible in a state-court proceeding to “only” the federal government verification of lawful presence, Sections 10(e), 11(e), and 13(h) deny every person accused of violating Sections 10, 11 or 13 of H.B. 56 the constitutionally-protected right to present a defense. By denying accused individuals the opportunity to prove lawful presence, Alabama has denied all individuals charged under these sections with their right to compulsory process."

Third,  the judge issued a preliminary injunction of Sections 11 (f) and (g) based on the First Amendment.  These provision provide:

(f) It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
(g) It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

The judge found that these provision were not content nuetral because they applied to a particular subject matter of expression - - - solitication of employment - - - rather than to partcular conduct, such as blocking traffic.  Yet the judge also analyzed the provisions under the commercial speech doctrine Alabama advocated, finding them failing to satify that lower standard.

Like US v. Alabama, this is sure to be appealed to the Eleventh Circuit, and Judge Blackburn's opinions might not be affirmed in all respects, but its careful analysis is sure to be accorded respect.

RR

September 28, 2011 in Congressional Authority, Criminal Procedure, Current Affairs, First Amendment, Opinion Analysis, Preemption, Standing, Supremacy Clause, Travel | Permalink | Comments (0) | TrackBack (0)

Alabama Immigration Law HB56 Enjoined in Part by Federal Judge (Part I)

UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.

Judge Sharon Lovelace Blackburn, Chief Judge of the Northern District of Alabama, has issued a 115 page Memorandum Opinion enjoining portions of HB 56 in United States v. Alabama.   [UPDATE: Other portions of HB56 are enjoined in a separate opinion in Hispanic Interest Coalition of Alabama v. Bentley]

800px-Bama_Theatre_Sign_02 Days before the law was scheduled to go into effect on September 1, Judge Blackburn issued a temporary injunction which made it clear it did not address the merits. 

The judge has now rendered her opinion on the various provisions that the United States claims are pre-empted.  Her opinion thus allows a few of the more controversial portions of HB56 to become effective.

Here's the result of her detailed analysis, with the provisions the Judge has declared enjoined as preempted in bold:

H.B. 56 § 10, which creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States.

H.B. 56 § 11(a), which makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work.

H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.

H.B. 56 § 13, which makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspire to do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.

H.B. 56 § 16, which forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.

H.B. 56 § 17, which establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring, or retaining, an unauthorized alien.

H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.

H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.

H.B. 56 § 28, which requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.

H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.

 In her analysis, the Judge relied heavily on the Third Circuit case of Lozano, regarding the Hazelton ordinance, which has been vacated and remanded,  and the Ninth Circuit case of United States v. Arizona, on the notorious SB1070, as might be expected.  However, less predictable is Judge Blackburn's rejection of the Ninth Circuit's opinion in Arizona regarding "unlawful presence," (§10 of HB56).  In part, Judge Blackburn factually distinguishes the Arizona and Alabama statutes.  However, Blackburn also makes it clear she thinks Arizona is incorrect and extensively quotes the dissenting opinion.

Judge Blackburn found one of the most controversial sections of HB56 - - - §13, the haboring transporting provision - - - subject to injunction as pre-empted.  Blackburn's analysis here, especially distinguishing §10, is worth a look:

H.B. 56 § 13 thus represents a significant departure from homogeneity, which “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."   Section 13 creates an Alabama-specific harboring scheme that “remove[s] any federal discretion and impermissibly places the entire operation – from arrest to incarceration – squarely in the State’s purview.” Unlike Section 10, which constrains the Alabama courts to the line of federal precedent interpreting 8 U.S.C. §§ 1304 and 1306, Section 13 imposes no obligation on Alabama courts to take guidance from federal courts and agencies in interpreting the word “harboring” as H.B. 56 § 13 is state law. For all these reasons, the court finds the United States is likely to succeed in showing that Section 13 is preempted.

[Op. at 84, citations omitted].

Given her conclusion on §13, the Judge ruled that the "Clergy Complaint" objection to the same section was moot; She also denied the Clergy motion seeking to enjoing §27 in accordance with her conclusion in US v. Alabama.

Sure to be appealed to the Eleventh Circuit, by either the United States or Alabama or both, Judge Blackburn's opinions might not be affirmed in all respects, but its careful analysis is sure to be accorded respect.

RR
[image via]

 

September 28, 2011 in Cases and Case Materials, Current Affairs, Federalism, Mootness, Opinion Analysis, Preemption, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Monday, September 26, 2011

Fourth Circuit: Iraqis' Torture Claims Preempted

A sharply divided 3-judge panel of the Fourth Circuit ruled last week in a pair of cases that a group of Iraqi citizens could not sue U.S. military contractors in tort for torture in Abu Ghraib prison and other locations throughout Iraq. 

The court ruled in Al Shimari v. CACI Int'l and Al Quraishi v. L-3 Services, Inc. that federal interests preempted the plaintiffs' claims and dismissed the cases.  But there was no preempting federal statute; instead the court relied on federal "interests" in interrogating detainees on a battlefield.  Judge Niemeyer explained in an opinion joined by Judge Shedd:

[W]e too conclude that this case implicates important and uniquely federal interests.  The potential liability under state law of military contractors for actions taken in connection with U.S. military operations overseas would similarly affect the availability and costs of using contract workers in conjunction with military operations.  In this case, that uniquely federal interest was especially important in view of the recognized shortage of military personnel and the need for assistance in interrogating detainees at Abu Ghraib prison.  Not only would potential tort liability against such contractors affect military costs and efficiencies and contractors' availability, it would also present the possibility that military commanders could be hauled into civilian courts for the purpose of evaluating and differentiating between military and contractor decisions.  That effort could become extensive if contractor employees and the military worked side by side in questioning detainees under military control, as the complaint alleges in this case.  Moreover, such interference with uniquely federal interests would be aggravated by the prison's location within the war zone.  Finally, potential liability under state tort law would undermine the flexibility that military necessity requires in determining the methods for gathering intelligence.

. . .

In addition to the specific adverse impacts on the uniquely federal interests of interrogating detainees in foreign battlefields, a broader and perhaps more significant conflict with federal interests would arise from allowing tort law generally to apply to foreign battlefields.

Al Shimari at 8-10.  In ruling the plaintiffs' claims preempted, the court followed the lead of the D.C. Circuit in Saleh v. Titan Corp., a 2009 case holding that where a civilian contractor is integrated into combat activities over which the military maintains authority, tort claims against the contractor are preempted.

Judge Neimeyer wrote separately to say that he would have dismissed the case under the political question doctrine and derivative absolute immunity, too.

Judge King wrote a lengthy dissent.  Judge King said that the court lacked jurisdiction over this interlocutory appeal, a position he explains in his dissenting opinion in Al Quraishi, and that, if the court had jurisdiction, preemption didn't apply to bar the plaintiffs' claims.

In Al Quraishi, a case with similar facts, the divided panel (Judge King, dissenting) ruled that the court had jurisdiction over the contractor's interlocutory appeal of the district court's denial of its motion to dismiss. 

SDS

September 26, 2011 in Cases and Case Materials, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Preemption, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, August 29, 2011

Alabama Immigration Law HB56 Enjoined by Federal Judge

UPDATE HERE

In a very brief Order issued late today, Judge Sharon Lovelace Blackburn, Chief Judge of the Norther District of Alabama, enjoined the enforcement of HB56:

461px-1823_Map_of_Alabama_counties  

Act 2011-535 [H.B. 56] is TEMPORARILY ENJOINED, and may not be executed or enforced. In entering this order the court specifically notes that it is in no way addressing the merits of the motions. The court will issue detailed Memorandum Opinions and Orders ruling on the merits of the pending Motions for Preliminary Injunction no later than September 28, 2011. This temporary injunction shall remain in effect until September 29, 2011, or until the court enters its rulings, whichever comes first.

The Order comes in the consolidated cases of Hispanic Interest Coalition of Alabama v. Bentley; Parsley v. Bentley, and United States v. Bentley.   We've previously discussed each of these three lawsuits have been brought against the controversial HB 56. 

The Hispanic Interest Coalition case began with a 118 page complaint filed early in July raises eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First Amendment claims including speech, assembly, and petition clauses, the Contracts Clause, and two Sixth Amendment claims. 

Parlsey v. Bentley is the clergy complaint centering on the First Amendment Free Exercise Clause. 

United States v. Bentley marks the DOJ's entry into the controversy, raising Supremacy Clause arguments as might be expected.

The law was scheduled to go into effect September 1. 

RR
[image: Map of Alabama, circa 1832, via]

August 29, 2011 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Interpretation, Preemption, Race, Sixth Amendment, Speech, Supremacy Clause | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 10, 2011

Arizona Seeks Supreme Court Review of SB1070

As expected, Arizona and Governor Jan Brewer have filed a petition for writ of certiorari in the United States Supreme Court today, seeking review of the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of as SB 1070, Arizona's controversial immigration law. 

800px-Immigration_Reform_Leaders_Arrested_4 Arizona, represented by Paul Clement, contends it bears the brunt of illegal immigration and that the federal government is not sufficiently addressing the problem, setting the factual and political context for its claim that its statute is not preempted under the Supremacy Clause.  The petition argues that "The Ninth Circuit’s rule—that States may not take any investigative or enforcement action against aliens based on their civil violations of the immigration laws without an express permission slip from Congress—directly conflicts with the approach" taken in other circuits.  The petition also argues that the Ninth Circuit opinions contradicts "Our Federalism" by failing to recognize co-operative enforcement and implicitly assuming that immigration is a matter of nearly exclusive federal concern.  The Ninth Circuit completely misconstrued preemption doctrine according to the petition, perhaps most egregiously when it allowed "complaints by foreign government officials and the disagreement of the Executive Branch to trump congressional intent."

The SCOTUSblog online symposium on immigration developments, including SB1070, has an excellent contribution by Kevin Johnson, who predicts that the Court will probably grant the petition for certiorari, although possibly remanding the case for consideration in light of Chamber of Commerce v. Whiting.   In the event the Court does entertain the case, Johnson speculates on the position of Justice Kennedy and the possibility of recusal of Justice Kagan. 

RR
[image via]

August 10, 2011 in Current Affairs, Federalism, Preemption, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 2, 2011

DOJ Files Complaint Against Alabama Immigration Law

Alabama's HB56, signed into law in June, and being touted as the "nations' toughest immigration law," is the subject of another challenge in federal court.  Last month's lawsuit, which we discussed here, Hispanic Interest Coalition of Alabama v. Bentley, had eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First amendment claims including speech, assembly, and petition clauses, the Contracts Clause, and Sixth Amendment.   

Animated-Flag-Alabama The DOJ complaint, in U.S. v. Alabama, focuses on Supremacy Clause issues, as might be expected.  Counts I and II argue that HB56's sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30 violate the Supremacy Clause, and are pre-empted by federal law, respectively.   Count III alleges that HB56 section 13 restricts the interstate movement of aliens in a manner that is prohibited by Article One, Section Eight of the Constitution, the Commerce Clause.

Here's a flavor of the DOJ's basic pre-emption argument:

the federal government will be required to divert resources from its own, carefully considered enforcement primary priorities — aliens who pose a threat to national security and public safety — to address the work that Alabama will now create for it — verification of individuals who are caught driving without a license or jaywalking.

The DOJ is seeking a preliminary and permanent injunction of the statute scheduled to become effective September 1.

The Alabama statute is thus now subject to two challenges in federal court. [update: Clergy have also filed a lawsuit, discussed here]

Similar state immigration laws have also been enjoined by federal courts: Arizona's SB1070, partially enjoined with the injunction upheld on appealIndiana's statute; and Georgia's statute

RR

August 2, 2011 in Commerce Clause, Current Affairs, Federalism, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)