Monday, March 18, 2013

Arguments in Arizona's Proof-of-Citizenship Requirement to Register to Vote

The Supreme Court heard oral arguments today in Arizona v. Inter Tribal Council of Arizona, the case testing whether the federal National Voter Registration Act preempts Arizona's requirement that voter applicants show additional proof of citizenship in order to register to vote.  We posted a preview here.

If the questions from the bench are any indication, this could be a very close one.  Justice Sotomayor and Kagan seemed to line up squarely behind the respondents (and against Arizona's proof-of-citizenship requirement).  Justices Ginsburg and Breyer did too, but perhaps a little less forcefully.  On the other side, Justice Scalia seemed set with Arizona on the merits (focusing on the NVRA text), but he wondered why the state didn't challenge the EAC's rejection of its state-specific proof-of-citizenship requirements earlier, right after the EAC rejected them.  Chief Justice Roberts and Justice Alito seemed to lean toward Arizona, too, largely for pragmatic reasons, suggesting that the NVRA scheme wouldn't make a lot of sense by the respondent's reading.  Justice Kennedy seemed concerned that Arizona's position could destroy the "utility of the single form" (on the one hand), but also that the Ninth Circuit applied a preemption test under the Elections Clause that was too federal friendly (on the other).  

The Justices were concerned about everything from legislative purpose behind the NVRA, to legislative language, to the role of the EAC (the administrative agency that approves the federal form and state-specific additions to it), to Arizona's failure to challenge the EAC's rejection of its state-specific citizenship requirements.  The standard for Elections Clause preemption (as opposed to more ordinary Supremacy Clause preemption) got very little attention (notably just from Justice Kennedy).

Justices Sotomayor and Kagan seemed to be the most active and skeptical in questioning Arizona's attorney.  They asked whether Arizona's additional citizenship requirements wouldn't undermine the purpose of the NVRA, to ease and simplify voter registration; whether Arizona is actually accepting and using the federal form (as required by the NVRA), especially when it apparently rejects mail-in ballots that don't satisfy Arizona's extra citizenship requirements; and whether Arizona's position would make the federal form "just another hoop to jump through."  (Those were Justice Kagan's words.  Justice Kennedy earlier suggested a similar sentiment--"But otherwise, the whole utility of the single form is missing--is gone"--but framed it as a question about what opposing counsel would argue.)  

Justice Breyer wanted to know how Arizona accepted and used the federal form's attestation-under-perjury requirement, again, as required by the NVRA, suggesting that Arizona wasn't accepting and using it, and therefore not complying with the NVRA.

Justice Scalia asked why Arizona didn't challenge the EAC's rejection of its state-specific citizenship requirements earlier--after the EAC rejection, and not now, only after voters challenged Arizona's requirements.

On the other side, Justice Alito wondered how the federal form alone could ensure that an applicant was qualified--giving an example of a minor who completed and signed the form--suggesting that the federal form alone wasn't sufficient.  Justice Scalia looked to the language of the NVRA--states "may require only"--and argued that the "may" made it permissive--and that state's therefore could add requirements.  Chief Justice Roberts and Justice Alito wondered whether under the respondent's reading and the government's reading the NVRA wouldn't create an unworkable system, with the possibility of a state-form voter registration list and a federal-form voter registration list in each state.

Chief Justice Roberts asked whether the respondent's reliance on the EAC's decision to reject Arizona's request to include its citizenship requirement wasn't undermined by the EAC's bad decision (according to respondent) allowing Louisiana to supplement the requirements on the federal form.  (Arizona first raised Louisiana's state-specific requirement, approved by the EAC, to include a driver's license number or Social Security number or, if neither is available, to attach certain other documents as an argument that a requirement for additional documents does not violate the NVRA.  The Court spent some time trying to figure out if the parties thought this was a good decision, and, if so, why Louisiana's requirement is the same or different than Arizona's.)  


March 18, 2013 in Cases and Case Materials, Federalism, News, Oral Argument Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Friday, March 15, 2013

Can States Require Proof of Citizenship to Vote?

Arizona is once again before the Supreme Court, on Monday, with a major federalism case, this time testing whether federal law preempts the state's efforts to add a proof-of-citizenship requirement, over and above the federal requirement, to its voter registration application.  The case, Arizona v. Inter Tribal Council of Arizona, asks whether the preemption standard under the Elections Clause is the same as the ordinary preemption standard under the Supremacy Clause, and whether the National Voter Registration Act preempts Arizona's proof-of-citizenship requirement.  

The former issue--going to the standard of preemption under the Elections Clause--is an important one.  The Court puts a thumb on the scale against preemption in ordinary Supremacy Clause preemption cases.  This case will tell us whether states get that thumb in Elections Clause cases, too.  If so, and if the Court rules Arizona's proof-of-citizenship requirement not preempted, we're likely to see certain states move toward more requirements like Arizona's, making it tougher for certain citizens to vote.

Here's an excerpt from my preview of the case in the ABA Preview of United States Supreme Court Cases (with permission):


 May Arizona require applicants for voter registration to provide additional evidence of U.S. citizenship without conflicting with the requirements of the National Voter Registration Act?


Congress enacted the National Voter Registration Act, the “NVRA,” or the “Motor Voter Act,” in 1993 in order to enhance voter participation by eligible citizens in federal elections while at the same time protecting the integrity of the electoral process. To these ends, the NVRA requires states to accept three kinds of registration applications from would-be voters in federal elections. First, the NVRA requires states to treat any application for a driver’s license as an application for voter registration. Next, it requires states to accept mail-in applications. Finally, the NVRA requires states to accept in-person applications at sites designated by state law.

In connection with these three methods, the NVRA provides for the creation of certain voter registration applications. Thus the NVRA requires states to create a combined driver’s license and voter registration application form commonly called the “Motor Voter Form.” (The Motor Voter Form is not at issue in this case.) The NVRA also directs the U.S. Election Assistance Commission, the “EAC,” to create the Federal Form, a nationally uniform voter application that applicants can use to register by mail or in person at designated locations. The NVRA requires that the Federal Form “shall include” a statement that specifies each eligibility requirement (including citizenship), contains an attestation of eligibility, and requires the applicant’s signature. It says that the Federal Form “may not include any requirement for notarization or other formal authentication.” And it says that the Federal Form “may require only such identifying information . . . and other information as is necessary to enable the appropriate state elections official to assess the eligibility of the applicant.” The NVRA requires states to “accept and use” the Federal Form, but it also allows a state to “develop and use” its own form, so long as the state form meets all of the NVRA criteria for the Federal Form. (Even if a state develops and uses its own form, however, the NVRA still requires every state to “accept and use” the Federal Form.) Moreover, a state may ask the EAC to add state-specific instructions to the Federal Form.

The EAC-created Federal Form specifies each eligibility requirement, including U.S. citizenship, but does not, by its plain terms, require proof of citizenship. Thus the Federal Form requires an applicant to tick a box that says that the applicant is a U.S. citizen and to swear or affirm, by signature, that he or she is a U.S. citizen and that “the applicant, to the best of his or her knowledge and belief, meets each of his or her state’s specific eligibility requirements.” The Federal Form’s state-specific instructions for Arizona require an applicant to include the number of his or her valid Arizona driver’s license or non-operating identification license, or the last four digits of his or her Social Security number. The state-specific instructions say that if an applicant does not have these numbers, “[a] unique identifying number will be assigned by the Secretary of State.” (The Federal Form, with Arizona’s state-specific instructions, is here.) In short, the Federal Form relies on an applicant’s attestation, without further proof, to determine U.S. citizenship. Arizona’s state-specific instructions only require proof if an applicant has an Arizona driver’s license or identification license, or a Social Security number.

In 2004, Arizona sought to add a proof-of-citizenship requirement. Thus Arizona voters approved Proposition 200, requiring applicants for voter registration to provide evidence of U.S. citizenship beyond the attestation requirement and the state-specific instructions in the Federal Form. In particular, Proposition 200 says that an applicant must provide his or her driver’s license number, non-operating identification number, a number associated with Native American tribal status, his or her certificate of naturalization number, or a legible photocopy of his or her U.S. birth certificate or passport. (Proposition 200 also requires registered voters to present identification in order to cast their ballots at the polls. The voter-ID component of Proposition 200 is not at issue in this case.) By its terms, this proof-of-citizenship requirement applies to both the federal form and to Arizona’s state form.

About a year after Arizona voters enacted Proposition 200, the U.S. Department of Justice precleared it under the Voting Rights Act. Arizona then asked the EAC to include its proof-of-citizenship requirement on the state-specific instructions on the federal form. The EAC declined. (The Executive Director of the EAC initially declined the request, stating that the NVRA preempted the requirement. The full EAC later upheld this decision.)

Nevertheless, Arizona implemented the new proof-of-citizenship requirements in Proposition 200 with respect to its state-specific voter registration application form and with respect to the Federal Form. As to the state-specific form, Arizona now specifically requires the proof of citizenship specified in Proposition 200. Its instructions say that an applicant must provide a driver’s license or non-operating identification license number, or, if those are not available, a birth certificate, U.S. passport, naturalization documents or an alien registration number, or proof of Native American Indian tribal membership. The instructions say that without this proof of citizenship, “the form will be rejected.” (Arizona’s state specific form is here.) As to the Federal Form (which, again, did not change in the wake of Proposition 200), Arizona officials now ask Federal Form applicants for evidence of citizenship pursuant to Proposition 200 whenever their Federal Form does not include such evidence of citizenship.

Just to be clear: Before Proposition 200, Arizona required only a driver’s license or non-operating identification license, or, when those were not available, a “unique identifying number . . . assigned by the Secretary of State,” in order to register to vote. After Proposition 200, Arizona now requires a driver’s license or non-operating identification license, or, when those are not available, a birth certificate, U.S. passport, naturalization documents or an alien registration number, or proof of Native American Tribal membership. Thus Proposition 200 added a significant proof-of-citizenship requirement, but only for those applicants who do not have a driver’s license or non-operating identification license.

Soon after Proposition 200 passed, two groups of plaintiffs sued, arguing, among other things, that the new proof-of-citizenship requirements were preempted by the NVRA. In particular, the plaintiffs argued that the new proof-of-citizenship requirements went beyond the requirements of the NVRA in a way that conflicted with the NVRA. In a first round of litigation, the plaintiffs’ case went to the Supreme Court on preliminary motions, and the Court remanded it for a determination on the merits. In the second round, on remand, the district court ruled in favor of Arizona on the plaintiffs’ preemption claim. The Ninth Circuit reversed. This appeal followed.


This case tests the boundary between congressional authority and state authority in the special context of regulation of federal elections. That boundary is set in the Constitution’s Elections Clause: “The 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.” In other words, states get the first crack at regulating the mechanics of federal elections, but Congress has ultimate authority to override, or preempt, state regulation. The framers gave Congress this special power over federal elections in order to safeguard against potential state efforts, through manipulation of their election laws, to undermine the national government. (At the extreme, the framers were concerned that states could frustrate the very creation of the national government by neglecting to hold federal elections.) Here, the Elections Clause governs, because Congress enacted the NVRA pursuant to its Elections Clause power.

The Supreme Court first examined congressional authority to preempt state law under the Elections Clause in Ex Parte Siebold, 100 U.S. 371 (1879). The Court in that case said that federal law preempts state law whenever they conflict: “the laws of the State, in so far as they are inconsistent with the laws of Congress on the same subject, cease to have effect as laws.” Over a century later, the Court in Foster v. Love, 522 U.S. 67 (1997), reaffirmed this principle and held that federal law setting the date for congressional elections (the Tuesday after the first Monday in November) preempted a Louisiana statute that established an open primary in October with a run-off on Congress’s specified election day only if the primary failed to produce a majority candidate.

While Siebold and Foster go specifically to Elections Clause preemption, the Court has also developed an approach to preemption under the Supremacy Clause. According to that approach, the Court seeks to preserve the “delicate balance” between the states and federal government, especially in those areas traditionally under state control. Thus under Supremacy Clause preemption the Court applies a “presumption against preemption” and holds that federal law preempts state law only when it is the “clear and manifest” purpose of Congress to do so. In short, the Court puts a thumb on the scale against preemption in its Supremacy Clause analysis.

The Court has not specifically said whether its approach to preemption under the Supremacy Clause applies also to preemption under the Elections Clause. If so, Congress would face a higher bar in preempting state law under the Elections Clause; if not, Congress could more easily preempt state law.

The parties dispute this, with Arizona arguing for the higher Supremacy Clause standard, and the plaintiffs-respondents arguing for a lower preemption standard. They also dispute whether under either standard Proposition 200 actually conflicts with the NVRA, and thus whether the NVRA preempts it.

[Summary of specific arguments omitted.]


This case tests the boundary between congressional authority and state authority in the special context of the Elections Clause. The Supreme Court has not ruled directly on this issue; in particular, it has not specifically set a standard for federal preemption of state law under this Clause. Thus this case is important because the Court’s ruling will (at least partially) fill this void and tell us something about the scope and extent of congressional authority, and therefore the scope and extent of state authority, under this Clause.

That, in turn, is important, because it will set the standard for federalism in relation to regulation of federal elections. If the Court borrows and applies the standard for preemption under the Supremacy Clause—with all its deference to state sovereignty, in the interest of maintaining the “delicate balance” between the states and federal government—the states could have more latitude to regulate elections, even affecting the composition of the federal government. (Various state efforts to strategically manipulate voting requirements in the 2012 elections in order to seek political advantage in federal elections stand as a stark and recent reminder of how state regulation could affect the federal government—exactly what the framers were concerned about.) But on the other hand if the Court applies a lower standard, one without deference to state sovereignty or considerations of federalism, the ruling could restrict the states in how they regulate elections, even restricting states from imposing additional proof-of-citizenship requirements (as in this case).

Still, the standard that the Court sets for preemption may be distinct from its ruling on preemption in this case. Whatever standard the Court adopts, its ruling in this case will tell us how much flexibility states have in adding to the NVRA requirements. If the Court holds that the NVRA does not preempt Proposition 200, this could invite states to impose all manner of additional requirements, potentially undercutting the congressional purpose of uniformity in voter registration in the NVRA and, again, potentially affecting the very composition of the federal government. But if the Court holds that the NVRA preempts Proposition 200, the ruling will restrict states in imposing additional requirements and will underscore national uniformity in voter registration.

In the end, whatever the Court rules, Congress could get the last word. That’s because Congress can always go back and rewrite its legislation in response to any preemption ruling from the Court. Here, Congress could rewrite the NVRA to more explicitly preempt state requirements like those in Proposition 200 (on the one hand), or to allow those requirements (on the other). In this way, Congress could effectively undo any decision in this case. The Court’s ruling will be important, to be sure, but it will not necessarily be the final decision on this issue.

Outside of these considerations, this case is also important because it comes to the Court just one month after the Court heard oral arguments in Shelby County v. Holder, testing the constitutionality of the preclearance provision in the Voting Rights Act. A bare majority of justices seemed skeptical in those arguments that preclearance and the related coverage formula were still necessary in 2013 to enforce the constitutional prohibitions against voting discrimination. In particular, a number of justices expressed concern about congressional infringement on state sovereignty and equality among the states. Between this case and Shelby County, we will learn quite a bit about where the Roberts Court stands on federalism and voting rights.

This case also comes just a year after Arizona v. U.S., 567 U.S. ___ (2012), another case testing Arizona’s authority, as against the federal government, to regulate non-citizens, when the regulation spills over and affects how Arizona treats U.S. citizens. Arizona v. U.S. involved the state’s efforts to clamp down on illegal immigration by authorizing its officers to check the immigration status of individuals that they detain and to regulate undocumented aliens in various ways. That case was a partial victory for Arizona and a partial victory for the United States. This case is yet a different test of Arizona’s authority, as against the federal government, to address illegal immigration.



March 15, 2013 in Cases and Case Materials, Congressional Authority, Federalism, News, Preemption | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 12, 2012

Fifth Circuit Strikes State Anti-Spoofing Law

The Fifth Circuit earlier this week ruled in Teltech Systems, Inc. v. Bryant that Mississippi's Caller ID Anti-Spoofing Act was preempted by the federal Truth in Caller ID Act of 2009.  The ruling strikes Mississippi's law, until and unless Mississippi successfully appeals.

Mississippi's Caller ID Anti-Spoofing Act prohibits a person from entering false information into a telephone caller identification system with the intent to deceive, defraud, or mislead the recipient of a call.  (Think solicitations that come up as an apparently legitimate local residential or cell phone number.)  Plaintiffs, organizations that provide third-party spoofing services, sued, arguing that the Act violated free speech and the dormant Commerce Clause, and that it was preempted by the federal Truth in Caller ID Act.  The court ruled only on this last claim.

The federal TCIA makes it unlawful for any person "to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value."  47 U.S.C. Sec. 227(e)(1).  

Preemption turned on the Mississippi ACA's sweep.  As the court explained, the Mississippi ACA sweeps somewhat broader than the TCIA, as it bans not only "harmful" spoofing but also "non-harmful" spoofing (done simply to deceive or mislead, but not to harm).  There was good evidence that Congress not only did not ban non-harmful spoofing, but sought to protect it.  "Congress apparently regarded some forms of spoofing worthy of protection from more restrictive state regulation."  Op. at 10.

Thus, said the court, the TCIA preempted the state ACA.  The court explained, drawing on Arizona v. United States, the immigration-and-preemption case from last Term:

Arizona v. United States is illustrative.  The Immigration Reform and Control Act of 1986 subjects employers who hire unauthorized aliens to criminal and civil sanctions, but imposes no such penalties on the hired unauthorized aliens.  An Arizona statute . . . went further, making it a misdemeanor for unauthorized aliens to apply for, or solicit, work.  Although the Arizona statute advanced the same goal as IRCA--preventing hiring unauthorized aliens--the Court held the Arizona statute's enforcement scheme conflicted with the federal regulatory scheme.  Examining the "text, structure, and [legislative] history of IRCA," the Court held the Arizona statute posed an obstacle to "the careful balance struck by Congress with respect to unauthorized employment of aliens."

Op. at 11 (citations omitted).  

So too with Mississippi's ACA, because it banned non-harmful spoofing, a category that Congress protected.


December 12, 2012 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Thursday, November 8, 2012

Daily Read: Non-Citizens and Constitutional Rights

400px-Immigration_Reform_Leaders_Arrested_5The constitutional "rights" of noncitizens are now less likely to be successfully argued under equal protection theories than under federalism (preemption) or administrative agency power issues according to Geoffrey Heeren in his article Persons Who Are Not The People: The Changing Rights of Immigrants in The United States, forthcoming in 44 Colum. Hum. Rts. L. Rev. and available in draft on ssrn.

Heeren reminds us that in the 1886 case of Yick Wo v. Hopkins, the United States Supreme Court recognized the Fourteenth Amendment equal protection claims by noncitizens, including immigrants within its definition of "we the people."  Yet, although such early Supreme Court cases upheld immigrants’ right to work in the face of state restrictions, relying heavily on the logic and rhetoric of natural rights, in more recent cases such as Arizona v. United States these equality norms are missing.  Heeren argues this is a loss given the importance of "rights."  He concludes:

In this climate, perhaps the best that can be hoped is for immigrants to invoke individual rights proxies like federalism or agency skepticism. But history, even U.S. legal history, is full of sudden change. The contemporary Supreme Court may prioritize structural rights based on federalism over individual rights and administrative law claims over constitutional ones. But these currently prevailing doctrines evolved from a very different state of affairs—one in which immigrants succeeded to a remarkable extent in pressing claims as equals.

Heeren's article is worth considering not only in light of his excellent discussion of various constitutional doctrines but also in terms of the political consequences of "rights" for noncitizens.

[image via]

November 8, 2012 in Equal Protection, Federalism, Preemption, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, October 26, 2012

Seventh Circuit Affirms Funding of Planned Parenthood, but Rejects Constitutional Claims

In its opinion in Planned Parenthood of Indiana v. Commissioner of Indiana Department of Health, the Seventh Circuit this week affirmed a district judge's injunction against the state's defunding of Planned Parenthood.

However, the Seventh Circuit upheld the district court on the statutory claim under the Medicaid Act's "free choice of provider" provision, and rejected the constitutional claims of preemption and unconstitutional conditions.

On the preemption claim, the Seventh Circuit panel reversed the district judge's finding that the federal block-grant program for the diagnosis and monitoring of sexually transmitted diseases conflicted with Indiana's defunding of Planned Parenthood in contravention of the Supremacy Clause. The panel applied a presumption in favor of a lack of preemption and found no conflicts, even as implied.

While the district judge had not reached the unconstitutional conditions claim - - - having granted relief on the other claims - - - the Seventh Circuit stated that "it makes sense" to address it.  The panel focused on the constitutional right at stake, reasoning that it is a "right against coercive government burdens," but this "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion."  Thus, the panel concluded that the unconstitutional conditions claim was not likely to succeed on the merits: given that "the government’s refusal to subsidize abortion does not unduly burden a woman’s right to obtain an abortion, then Indiana’s ban on public funding of abortion providers—even for unrelated services—cannot indirectly burden a woman’s right to obtain an abortion."

Thus, although the Seventh Circuit opinion's result requires the funding of Planned Parenthood, the court foreclosed constitutional claims.


October 26, 2012 in Abortion, Opinion Analysis, Preemption, Reproductive Rights, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Monday, October 15, 2012

Court Grants Certiorari in Arizona Voting Case: Preemption and Citizenship Issues

Today the United States Supreme Court granted the petition for certiorari of the State of Arizona in Arizona v. The Inter-Tribal Council of Arizona, from the Ninth Circuit's en banc opinion in Gonzalez v. Arizona. (The Inter Tribal Council of Arizona, ITCA, was a named plaintiff in Gonzales).

Tribal Lands in ArizonaThe central issues, as have been the case with other recent Arizona laws before the Supreme Court, involve pre-emption and citizenship.   Here, Arizona's law derives from a ballot initiative, Proposition 200, passed in 2004.  It requires prospective voters in Arizona to provide proof of U.S. citizenship in order to register to vote and requires registered voters to show identification to cast a ballot at the polls.  The plaintiffs contended that these provisions were pre-empted by the National Voter Registration Act and the Voting Rights Acts. 

With regard to the polling place requirements, the en banc Ninth Circuit affirmed the district judge and rejected the plaintiffs' claims that the requirements were inconsistent with the Voting Rights Act, violated the Twenty Fourth Amendment's prohibition of poll taxes, or violated the Fourteenth Amendment's Equal Protection Clause.

However, the Ninth Circuit found the challenge to the registration to vote provisions had merit. As a grounds of pre-emption, the plaintiffs relied on the Supremacy Clause, Article VI, but also upon the Elections Clause, Art. I, § 4, cl. 1.  Recall that the Elections Clause provides: "The 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 Ninth Circuit en banc extensively discussed Election Clause pre-emption and compared the provisions of the NVRA and the Proposition 200 regulations.  The court found:

Although Arizona has offered a creative interpretation of the state and federal statutes in an effort to avoid a direct conflict, we do not strain to reconcile a state’s federal election regulations with those of Congress, but consider whether the state and federal procedures operate harmoniously when read together naturally.  Here, under a natural reading of the NVRA, Arizona’s rejection of every Federal Form submitted without proof of citizenship does not constitute “accepting and using” the Federal Form. Arizona cannot cast doubt on this conclusion by pointing out that the NVRA allows states to reject applicants who fail to demonstrate their eligibility pursuant to the Federal Form. Congress clearly anticipated that states would reject applicants whose responses to the Federal Form indicate they are too young to vote, do not live within the state, or have not attested to being U.S. citizens. Indeed, the NVRA instructs the EAC [Election Assistance Commission] to request information on the Federal Form for the precise purpose of “enabl[ing] the appropriate State election official to assess the eligibility of the applicant.” Thus, a state that assesses an applicant’s eligibility based on the information requested on the Federal Form is “accepting and using” the form in exactly the way it was meant to be used. In contrast, Proposition 200’s registration provision directs county recorders to assess an applicant’s eligibility based on proof of citizenship information that is not requested on the Federal Form, and to reject all Federal Forms that are submitted without such proof. Rejecting the Federal Form because the applicant failed to include information that is not required by that form is contrary to the form’s intended use and purpose.

[citations omitted].

In its petition for writ of certiorari, Arizona argues that the Ninth Circuit mistakenly created a "new, heightened preemption test" under the Elections Clause and incorrectly concluded that the Proposition 200 requirements were preempted by the NVRA.

The litigation has already garnered a few amicus curiae briefs at the certiorari stage; it is sure to be another closely watched case on Arizona's attempts to regulate citizenship.

[image: ITCA,"Tribal Homelands in Arizona" via]

October 15, 2012 in Current Affairs, Elections and Voting, Equal Protection, Opinion Analysis, Preemption, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, August 20, 2012

Eleventh Circuit on Georgia's Immigration Statute

517px-Flag-map_of_Georgia_(U.S._state).svgSections 7 and 8 of Georgia's immigration regulation statute, known as HB 87, were enjoined by federal district Thomas Thrash in June 2011, a few months after the law was passed. 

Today, the Eleventh Circuit, in its opinion in Georgia Latino Alliance for Human Rights v. Governor of Georgia, upheld the injunction against Section 7 - - - the criminalization of transporting, harboring, or inducing to enter Georgia any "illegal alien" - - - finding the provisions preempted by federal law. The court found that the Georgia statute directly conflicted and was an obstacle to federal immigration law. 

The court, however, reversed the injunction against Section 8 - - - the "show me your papers" provision - - - relying upon the Supreme Court's June opinion in Arizona v. United States.  However, the Eleventh Circuit left open an "as applied challenge" to section 8, much as the Court did in Arizona v. US.

While the Eleventh Circuit spent a substantial portion of its 33 page opinion rejecting the state's challenge to plaintiffs' standing as well as the state's argument that there was no private cause of action under the Supremacy Clause or preemption, the preemption analysis is central and well-supported.

[image of Georgia flag/map via]


August 20, 2012 in Federalism, Opinion Analysis, Preemption, Standing, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Friday, July 27, 2012

Full Ninth Circuit To Review Failure-to-Warn Preemption Ruling

The Ninth Circuit this week ordered en banc review of the split three-judge panel decision that the FDA reporting requirements preempted a state-law failure-to-warn claim in Stengel v. Medtronic.  

The order means that the full Ninth Circuit will review the panel ruling and possibly reverse it, allowing the plaintiffs' state-law failure-to-warn claim to go forward.  It also means that the case is all the more likely to ultimately attract the attention of the Supreme Court.  (There's already a minor circuit split.)

The core issue--the one that divided the three-judge panel--is whether the plaintiffs' failure-to-warn claim is sufficiently independent of the FDA's requirement that a medical device manufacturer discover and report to the FDA any complaints about the product's performance and any adverse health consequences attributable to the product.  If so--that is, if the state failure-to-warn claim stands on its own, independent of FDA reporting requirements--it's likely not preempted.  But if the failure-to-warn claim derives from the FDA requirement, it may be preempted.

The dispute turns on three principal cases: Medtronic v. Lohr (1996); Buckman Co. v. Plaintiffs' Legal Committee (2001); and Riegel v. Medtronic (2008).  

The panel majority said that the case is governed by Buckman.  In Buckman, the Court ruled that the FDCA preempted a state-law fraud-on-the-FDA claim, because the claim derived exclusively from a requirement owed to the FDA (and not directly to the plaintiffs).  The Court distinguished Lohr, which held that the FDCA did not preempt certain negligence claims that paralleled FDCA requirements, writing that "the [Lohr] claims arose from the manufacturer's alleged failure to use reasonable care in the production of the product, not solely from the violation of FDCA requirements," whereas the Buckman fraud claims "exist solely by virtue of the FDCA disclosure requirements."  Op. at 4094.  

The dissent argued that the plaintiffs' failure-to-warn claim was an independent, preexisting state-law cause of action that did not derive exclusively from FDCA reporting requirements--that it looked more like the independent, but parallel, claim in Lohr than the FDCA-derived claim in Buckman.  The dissent argued that Riegel only reinforced the Lohr holding.


July 27, 2012 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0) | TrackBack (0)

Saturday, April 28, 2012

Has Scalia Crossed a Line in Arizona v. United States?

UPDATE: SCALIA's dissenting opinion and Court's June 25 decision here]

Justice Scalia, long known for his scathing written opinions, is under increasing scrutiny - - - and criticism - - - for his comments/questions during oral arguments.  The critiques focus on both content and tone of his performance on the Bench and are especially pronounced with regard to Arizona v. United States, the case involving the constitutionality of certain sections of Arizona's notorious immigration law known as SB1070.  As we discussed, the oral arguments seemed less about preemption (a sometimes technical and dry issue) and more about federalism and immigration policy unmoored from the statutory and Supremacy Clause considerations.

In a case about borders, several commentators are suggesting that Scalia needs to better monitor his own boundaries. 

For example, Dana Millbank in a Washington Post column compares Scalia's rhetoric to that of the "street protestors" stating that they were "nearly identical" in "tone and substance."  Millbank argues that although "[t]echnically, Scalia was questioning counsel," at times "he verged on outright heckling" of the Solicitor General. 

Similarly, in an article in UK's the Guardian, US political science professor Scott Lumieux notes that Scalia's remarks in Arizona v. United States were "yet more Fox News-style posturing by Scalia," continuing a pattern Lumieux also discusses from recent oral arguments including those concerning the constitutionality of the individual mandate provision of the ACA. 

And in a article entitled "Scalia Reveals How Little He Knows About Immigration Policy," Neil Pippenger in The New Republic refrains from characterizing Scalia's tone, but relates Scalia's "policy suggestion" intended to solve Mexico's objections:

“Well, can’t you avoid that particular foreign relations problem by simply deporting these people?”

A few people sitting near me gasped as Scalia continued: “Look, free them from the jails”—here, [Solicitor General] Verrilli tried to interrupt him, but the justice would not be cut off—“and send them back to the countries that are objecting!”

An mp3 and transcript of the oral arguments in Arizona v. United States is now available at Oyez, so one can hear and read the basis for such criticisms.  Of course, without visual broadcast, those not in the courtroom must rely on the representations of others in that regard.  However, the transcript and audio certainly lend credence to the critiques.

[image: Justice Scalia at speaking engagement via]

April 28, 2012 in News, Oral Argument Analysis, Preemption, Supremacy Clause, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 25, 2012

Oral Argument in Arizona v. United States

The oral argument today in the closely watched Arizona v. United States, involving the constitutionality of several provisions of Arizona's notorious SB 1070 that the DOJ argues are pre-empted by federal law and which the lower courts agreed.  

These four provisions at issue are:

  •     Section 2(B): requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully;
  •     Section 3: criminalizes the failure to carry an “alien registration document;'"
  •     Section 5(C): criminalizes undocumented immigrants applying for employment or being employed;
  •     Section 6:  authorizes warrantless arrests if based upon probable cause that a person has committed a deportable crime.


During the oral argument Justice Sotomayor quickly interrupted Paul Clement, arguing for Arizona,with a focus on the controversial stop provision:

JUSTICE SOTOMAYOR: -- could I interrupt, and turning to 2(B), could you tell me what the State's view is -- the Government proposes that it should be read on its face one way, and I think the State is arguing that there's a narrower way to read it. But am I to understand that under the State's position in this action, the only time that the inquiry about the status of an individual rises is after they've had probable cause to arrest that individual for some other crime?

Sotomayor persisted raising the "critical" issue of how long and under what circumstances the state would detain someone.  After some discussion, including queries by Justices Ginsburg and Breyer, Justice Scalia asked whether any such problems were "immigration" problems or Fourth Amendment problems.  Yet the questions on 2(B), in conjunction with Section 6, continued to dominate, until Justice Roberts shifted the inquiry:

CHIEF JUSTICE ROBERTS: Counsel, maybe it's a good time to talk about some of the other sections, in particular section 5(C).  Now, that does seem to expand beyond the Federal government's determination about the types of sanctions that should govern the employment relationship.

You talk about supply and demand. The Federal government, of course, prohibits the employment, but it also imposes sanctions with respect to application for work. And the State of Arizona, in this  case, is imposing some significantly greater sanctions.

Clement admitted that Arizona was imposing "different" sanctions, but that the state only targeted employment that was already prohibited by federal law, making it a "weak case for preemption."  Later, Clement answered another question from Justice Sotomayor by saying that there was a "big difference" between "Congress deciding not as a matter of Federal law to address employees with an additional criminal prohibition, and saying that that decision itself has preemptive effect. That's a rather remarkable additional step."   He then essentially argued that the Congressional immigration statutes were out-of-date.

Roberts again took charge and turned the argument to Section 3, the state crime of failure to carry a registration document, which Clement argued was "parallel" to the federal requirements. 

Arguing for the United States, Solicitor General Verrilli had barely finished "may it please the Court," when Chief Justice Roberts posed this query:

CHIEF JUSTICE ROBERTS: Before you get into what the case is about, I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.

When Verrilli answered "That's correct,"  Roberts again repeated his statement:

CHIEF JUSTICE ROBERTS: Okay. So this is not a case about ethnic profiling.

Justice Scalia quickly articulated a states rights perspective.  Responding to the federal government's position that "the Constitution vests exclusive authority over immigration matters with  the national government," Scalia asked:

  1. JUSTICE SCALIA: All that means, it gives authority over naturalization, which we've expanded to immigration. But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?

Chief Justice Roberts explicitly stated "I don't see the problem with section 2(B)," perhaps explaining his earlier effort to clarify that the case was not about "racial profiling." 
Yet the argument did return to this issue.

VERRILLI: . . . . Now, we are not making an allegation of racial profiling; nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. It stands to reason that the legislature thought that that wasn't sufficient and there needed to be more.
And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully --

JUSTICE SCALIA: Sounds like racial profiling to me.

GENERAL VERRILLI: And they're -- and given that what we're talking about is the status of being unlawfully present --

JUSTICE SOTOMAYOR: Do you have the statistics as to how many arrests there are and how many -- and what the -- percentage of calls before the statute [SB1070]?

The discussions of preemption were often less focused on Congressional intent than on generalized federalism concerns, although at one point Chief Justice Roberts seemed to highlight the only precedent that mattered.  Attempting to engage in an analogy, Verrilli argued:

  1. . . . . if you ask one of your law clerks to bring you the most important preemption cases from the last years, and they rolled in the last -- the last hundred volumes of the U.S. Reports and said, well, they are in there. That -- that doesn't make it --

  2. CHIEF JUSTICE ROBERTS: What if they just  rolled in Whiting?


CHIEF JUSTICE ROBERTS: That's a pretty good one.

The analogy was never completed. 

But if Arizona v. United States mimics Chamber of Commerce v. Whiting, decided last May and upholding the Legal Arizona Workers Act, we can expect a fractured opinion ultimately finding in favor of Arizona.


April 25, 2012 in Oral Argument Analysis, Preemption, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 24, 2012

Preview of Oral Arguments in Arizona v. United States

The Supreme Court will hear oral arguments in Arizona v. United States on the issue of the constitutionality of Arizona's notorious SB 1070, signed into law by Governor Jan Brewer two years ago.  The law was controversial from the beginning for a variety of reasons, but the case before the Court focuses on the pre-emption issue as brought before the federal courts by the Department of Justice. 

Arizona-mapThe DOJ was mostly successful in the lower courts.  The Court granted the review sought by Arizona of the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of as SB 1070.  We've previously outlined some of Arizona's arguments on certiorari.

The oral arguments have attracted much attention.  Lyle Dennison at SCOTUSblog has a lengthy, detailed, and incisive analysis, though many readers will be most interested in his outcome bottom line: "With Justice Kagan not taking part, a 4-4 split among those who are taking part would simply uphold — without a written opinion — the Ninth Circuit decision barring enforcement of the four provisions at issue."  Kevin Johnson posts over at Immigration Law Prof blog and surfaces an interesting possible outcome.  Findlaw has a quick review, ACS has a good discussion, and The Tuscon Sentinel has particularly excellent discussion in a "primer."  The NYT has a great graphic of copy-cat SB 1070 statutes in other states.

After the oral argument, there is sure to be much analysis, prediction, and the inevitable wait for the opinion due before the end of the term.

And of course, political responses.  Given that the Court's task is the interpretation of a statute and that the "touchstone" of preemption is Congressional intent, Congress can always legislate.  While immigration legislation is never easy, at least one Senator is vowing to propose a statute including what seems to be express preemption.


April 24, 2012 in Federalism, Preemption, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, April 21, 2012

Ninth Circuit: Failure to Warn Claim Against Med Device Maker Preempted

A sharply divided three-judge panel of the Ninth Circuit ruled earlier this week in Stengel v. Medtronic, Inc. that the plaintiffs' state law failure-to-warn claim based on Medtronic's failure to provide disclosures to the FDA is impliedly preempted under the Medical Device Amendments of 1976 to the Food, Drug and Cosmetic Act.

The ruling deepens a circuit split, aligning the Ninth Circuit with the Eighth, and against the Fifth. It also leaves little, if any, daylight for a state law claim paralleling the MDA in the Ninth Circuit.

The case grows out of Richard and Mary Lou Stengel's claim against Medtronic for damages for injuries from a premarket approved medical device. The Stengels claimed, among other things, that Medtronic failed to report problems with the device; their proposed amended complaint read:

Under federal law and regulation, [Medtronic] was under a continuing duty to monitor the product after premarket approval and to discover and report to the FDA any complaints about the product's performance and any adverse health consequences of which it became aware and that are or may be attributable to the product.

The Stengels filed a state failure-to-warn claim, which paralleled the FDA reporting requirement, in state court, and Medtronic removed to federal court.

The Ninth Circuit ruled that the Stengels' state failure-to-warn claim was impliedly preempted under the MDA under Buckman Co. v. Plaintiffs' Legal Committee (2001). Buckman held that state fraud-on-the-FDA claims were preempted under the FDCA. The majority in Stengel said those claims were the same as the Stengels' claim for preemption purposes:

The Stengels' theory is that if Medtronic had acted wtih reasonable care in complying with the regulations that required it to provide information to the FDA, the FDA would have required Medtronic to warn physicians about the danger of inflammation connected to its pump and Stengel could have avoided the infury caused by the pump. This is precisely the same theory that was rejected in Buckman. The only difference is that, in Buckman, the defendant allegedly misinformed the FDA overtly by providing false information, whereas here the defendant allegedly misinformed the FDA tacitly by failing to report information that it had a duty to report. The policing of such conduct in both instances is committed exclusively to the federal government, and recognizing a state cause of action based on such conduct would conflict with the statutory scheme established by Congress.

Judge Noonan wrote in dissent that the Supreme Court specifically said in Medtronic, Inc. v. Lohr (1996) that state common law duties could parallel the MDA, so long as they were not expressly preempted by the MDA. The Court restated this in Riegel v. Medtronic (2008). Judge Noonan wrote that nothing in Buckman limited this statement, and that Riegel demonstrated its continuing validity.

Although the ruling this week leaves a theoretical opening for a state law claim that parallels the MDA, under the majority's approach it's hard to see what it is.


April 21, 2012 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

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.


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.


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.

[image via]


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.

[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.)


[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."


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


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."

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. 


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.

[image via]

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