Friday, October 26, 2012
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.
Monday, October 15, 2012
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).
The 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.
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]
Monday, August 20, 2012
Sections 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]
Friday, July 27, 2012
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 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.
Saturday, April 28, 2012
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]
Wednesday, April 25, 2012
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.
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.
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:
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?
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:
. . . . 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 --
- 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.
Tuesday, April 24, 2012
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.
The 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.
Saturday, April 21, 2012
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.
Friday, April 20, 2012
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
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.
In its opinion in 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.
Friday, March 9, 2012
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.
Saturday, March 3, 2012
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.
Justice 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]
Thursday, January 26, 2012
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."
Monday, December 12, 2011
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."
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.
Monday, November 28, 2011
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.
While 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.
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.
Nebraskans, 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.
Tuesday, November 1, 2011
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.
Monday, October 31, 2011
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.
Saturday, October 22, 2011
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.
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):
 a textually demonstrable constitutional commitment of the issue to a coordinate political department;
 a lack of judicially discoverable and manageable standards for resolving it;
 the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
 the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
 an unusual need for unquestioning adherence to a political decision already made;
 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
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.