Monday, September 26, 2011

Fourth Circuit: Iraqis' Torture Claims Preempted

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

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

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

. . .

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

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

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

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

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


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

Monday, August 29, 2011

Alabama Immigration Law HB56 Enjoined by Federal Judge


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


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

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

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

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

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

The law was scheduled to go into effect September 1. 

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

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

Wednesday, August 10, 2011

Arizona Seeks Supreme Court Review of SB1070

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

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

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

[image via]

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

Tuesday, August 2, 2011

DOJ Files Complaint Against Alabama Immigration Law

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

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

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

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

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

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

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


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

Monday, August 1, 2011

Planned Parenthood of Kansas v. Brownback: Federal Judge Issues Preliminary Injunction

 In a Memorandum and Order today, Judge J. Thomas Marten of the United States District of Kansas, enjoined the enforcement of the Kansas defunding of Planned Parenthood statute, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011).  The judge enjoined the Kansas state defendants from any further enforcement or reliance on  athe state statute and directed them to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l), and to provide continuation grant funding to the Planned Parenthood.

The Kansas statute, Section 107(l) of H.B. 2014, which took effect on July 1, 2011, defunds Planned Parenthood by providing that Kansas subgrants of Title X funds are "exclusively prioritized" to public entities, or secondly, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply to Kansas to receive Title X funds.

Planned Parenthood Planned Parenthood argued that the statute violated the Supremacy Clause, in that in conflicted with federal law under Title X, and that the statute violated its First Amendment rights.  The judge found there was a substantial likelihood of success on both of these claims.

First, however, the judge considered the state's argument that any relief was barred by the Eleventh Amendment.  The state defendants argued that the requested relief therefore must include an order for the State to sign a contract with and pay money to Planned Parenthood, thereby violating the State’s sovereign immunity.  Rejecting this argument, the court stated that it found "the injunctive relief sought by Planned Parenthood will not violate the Eleventh Amendment, as it seeks an order which would simply preclude the defendants from any decision allocating Title X funding on the basis of the allegedly unconstitutional Section 107(l).”

As to Planned Parenthood's pre-emption claim, the judge noted that there were several cases holding that a state's imposition of additional eligibility requirements under Title X are invalid as creating an unconstitutional conflict.  The state statute did not simply render uncertain whether or not Planned Parenthood could receive state funding; it made it impossible for the organization to be funded. 

Regarding Planned Parenthood's First Amendment claim, the judge distinguished it from unconstitutional conditions cases such as Rust v. Sullivan.  Here, it was not that there were conditions attached to the funding, but that an organization was deemed ineligible based entirely on "participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff’s protected association with abortion related services, renders the statute unconstitutional."  Thus, the judge focused on the First Amendment right of association.

Ks_sunflower_state_all Discussed in both of the Planned Parenthood claims was the legislative intent of the statute.  Was the intent of the statute directed at Planned Parenthood?  The judge soundly rejected the state defendants "suggestion that the statute was simply designed to prioritize funding to entities who have a higher percentage of poor clients" as a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for the statute.  The judge also considered the statement of the amendment's sponsor, Lance Kinzer, including on the floor of the House and on his facebook page:

Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY2011. The vote was 91-26, a great victory on the first pro-life floor vote
of the session.

Similarly, Governor Brownback, who signed the statute into law, was quoted by The Lawrence, Kansas Journal-World as hailing the Kinzer amendment on the grounds that it would “zero out funding of Planned Parenthood.”  The judge found these were not isolated statements, but indicative of legislative intent both to "punish" Planned Parenthood in contravention of its free association First Amendment rights and to contradict the direct mandate of the federal law.


August 1, 2011 in Abortion, Association, Cases and Case Materials, Current Affairs, Eleventh Amendment, Family, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Preemption, Privacy | Permalink | Comments (0) | TrackBack (0)

Friday, July 8, 2011

Alabama HB56: Constitutional Challenge to Alabama Immigration Law

Alabama's HB56, signed into law in June, and being touted as the "nations' toughest immigration law," has been challenged in federal court. 

Alabama Map

The Alabama statute, slated to become effective September 1, joins other state statutes such as Arizona's SB1070, partially enjoined with the injunction upheld on appealIndiana's statute enjoined last month; and Georgia's statute also enjoined last month.

Alabama's statute shares many of the constitutional problems of the Arizona, Indiana, and Georgia statutes.

One of the more controversial requirements includes "record-keeping" by public schools: 

Every public elementary and secondary school in this state, at the time of enrollment in kindergarten or any grade in such school, shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States and qualifies for assignment to an English as Second Language class or other remedial program.

Other provisions criminalize harboring or transporting an "alien," a provision that could criminalize citizens assisting non-citizen family members, mandatory use of E-verify by employers, and criminal solicitation provisions.

The 118 page complaint in  Hispanic Interest Coalition of Alabama v. Bentley, filed on behalf of several organizations, represented by organizations including the Southern Poverty Law Center, has eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First amendment claims including speech, assembly, and petition clauses, and the Contracts Clause.  The Complaint also includes two interesting Sixth Amendment claims:

HB 56 violates the Confrontation Clause because a defendant would be prohibited from confronting the witness who prepared the federal government verification, and the state court is prohibited from considering any evidence except for the federal government verification.

HB 56’s criminal provisions violate the Compulsory Process Clause (as well as the Due Process Clause) because a defendant would be prohibited from presenting a defense on the issue of whether he or she possesses lawful immigration status.

Whether or not the Alabama statute is enjoined as similar statutes have been, the issue of the ability of states to pass immigration measures - - - and the scope of any measures - - - is sure to reach the United States Supreme Court, yet again.

[image: flag map of Alabama via]


July 8, 2011 in Criminal Procedure, Current Affairs, Due Process (Substantive), Elections and Voting, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, News, Preemption, Race, Speech, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Monday, June 27, 2011

Federal Judge Enjoins Georgia's Immigration Statute

Georgia's House Bill 87, the "Illegal Immigration Reform and Enforcement Act of 2011" is similar to efforts by other states to control immigration, including the Indiana statute enjoined a few days ago and most notably Arizona.

A motion for preliminary injunction sought relief on three sections of the statute scheduled to take effect on July 1, 2011, but a federal judge has enjoined its enforcement in a 45 page opinion (and additional appendix).

The plaintiffs contended that HB87 violates the Fourth Amendment, the Fourteenth Amendment's due process and equal protection clause, and Article IV privileges and immunities clause right to travel.  The district judge rejected all of these arguments, as well as rejecting the State's argument that the individual and organizational plaintiffs lacked standing.

However, the district judge found favor with the arguments that the provisions of HB87 under consideration were preempted by federal law and therefore violative of the Supremacy Clause.

Section 8 of HB 87 authorizes local law enforcement officers to investigate a suspect’s illegal immigration status and, if the officer determines the suspect has violated federal immigration law, detain and arrest the suspect without a warrant. The judge stated: "Congress, however, has already addressed the circumstances in which local law enforcement personnel may enforce federal civil immigration law" in statutes that "clearly express Congressional intent that the Attorney General should designate state and local agents authorized to enforce immigration law."  Indeed, the district judge noted, "Congress has provided that local officers may enforce civil immigration offenses only where the Attorney General has entered into a written agreement with a state," or "where the Attorney General has expressly authorized local officers in the event of a mass influx of aliens."

Section 7 of HB87 creates three criminal violations: (1) transporting or moving an illegal alien in a motor vehicle; (2) concealing, harboring or shielding an illegal alien from detection;  and (3) inducing, enticing, or assisting an illegal alien to enter Georgia.  The judge distinguishes Chamber of Commerce v. Whiting, decided by the United States Supreme Court in May, in which the Court held that federal law did not preempt an Arizona statute providing for suspension and revocation of business licenses for entities employing unauthorized aliens. Unlike in Whiting, the judge found that the state and federal provisions were not parallel: the state law prohibits knowingly inducing, enticing or assisting illegal aliens to enter Georgia.  The federal law's corresponding “inducement” provision prohibits inducing an alien to “come to, enter, or reside in the United States.” "Once in the United States, it is not a federal crime to induce an illegal alien to enter Georgia from another state."  Moreover, the judge reasoned that the Arizona statute in Whiting "imposed licensing laws specifically authorized by a statutory savings clause, HB87 imposes additional criminal laws on top of a comprehensive federal scheme that includes no such carve out for state regulation."

The judge therefore found both sections 7 and 8 to be sufficiently constitutionally suspect to support a preliminary injunction. 

The judge also had some observations on Georgia's articulated necessity for regulating immigration:

The widespread belief that the federal government is doing nothing about illegal immigration is the belief in a myth. Although the Defendants characterize federal enforcement as “passive,” that assertion has no basis in fact. On an average day, Immigration and Customs Enforcement officers arrest approximately 816 aliens for administrative immigration violations and remove approximately 912 aliens, including 456 criminal aliens, from the United States. (Declaration of Daniel H. Ragsdale ¶ 5) (Attached for convenience as Appendix B). In 2010, immigration offenses were prosecuted in federal court more than any other offense. U.S. SENTENCING COMMISSION–2010SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 11-12 (2010).  Of the 83,946 cases prosecuted under the federal sentencing guidelines, 28,504, or 34% involved immigration offenses. Id. In 2010, of 81,304 criminal cases prosecuted in federal court, 38,619 (47.5%) were non-United States citizens. It is true that there are thousands of illegal immigrants in Georgia that are here because of the insatiable demand in decades gone by for cheap labor in agriculture and certain industries such as construction and poultry processing. The federal government gives priority to prosecuting and removing illegal immigrants that are committing crimes in this country and to those who have previously been deported for serious criminal offenses such as drug trafficking and crimes of violence. (Declaration of Daniel H. Ragsdale ¶¶ 16-28.) To the extent that federal officers and prosecutors have priorities that differ from those of local prosecutors, those priorities are part of the flexibility that “is a critical component of the statutory and regulatory framework” under which the federal government pursues the difficult (and often competing) objectives, of “protecting national security, protecting public safety, and securing the border.”




The federal district judge is Thomas Thrash formerly a LawProf at Georgia State.  The case is sure to be appealed to the Eleventh Circuit.

[image: Cutters at Turpentine Farm in Georgia via]

June 27, 2011 in Cases and Case Materials, Criminal Procedure, Current Affairs, Fourteenth Amendment, Fourth Amendment, Opinion Analysis, Preemption, Privileges and Immunities: Article IV, Standing, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Sunday, June 26, 2011

Indiana Immigration Law (SEA 590) Enjoined by Federal Judge

Indiana has joined several other states, most notably Arizona, in passing statutes intended to regulate immigration.  The Indiana statute, SEA 590 set to become effective July 1, has been partially enjoined by a federal district judge in a 39 page Order

The judge enjoined both provisions challenged by plaintiffs:

  • Section 19 of SEA 590, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies.
  • Section 18 of SEA 590, to be codified as Indiana Code § 34-28-8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.

The opinion considers standing issues, as well at the standards for preliminary injunction, but found both sections 19 and 18 unconstitutional and enjoined their enforcement.

As to section 19, the judge found it troubling under both pre-emption and Fourth Amendment principles.  On pre-emption, the judge stated that :

Clearly, it is not the intent or purpose of federal immigration policy to arrest individuals merely because they have at some point had contact with an administrative agency about an immigration matter and received notice to that effect. Authorizing an arrest for nothing more than the receipt of an administrative notification plainly interferes with the federal government’s purpose of keeping those involved in immigration matters apprised of the status of their cases, but not arresting them.

As to the Fourth Amendment issue, the judge noted that the State conceded that "nothing under Indiana Judge parker law makes criminal the receipt of a removal order, a notice of action or detainer, or a person’s having been indicted for or convicted of an aggravated felony."   Section 19 expressly provides that state and local enforcement officers 'may arrest' individuals for conduct that all parties stipulate and agree is not criminal."   While the State argued that the statute would only be enforced in circumstances in which the officer had a "separate, lawful reason for the arrest," the judge found that construction "fanciful" and would " in effect, read the statute out of existence."  The judge thus found the statute violative of the Fourth Amendment.

On section 18, the judge similarly considered pre-emption, but also an equal protection and due process challenge.   On pre-emption, the treaty power was also implicated, and planitiffs argued that the provision interferes with rights bestowed on foreign nations by treaty as well as with the federal government’s responsibilities for the conduct of foreign relations.  The State rejoined that the statute does not directly conflict with any treaty nor does it impede the federal government’s ability to manage foreign affairs, because Section 18 is merely an "internal regulation outlining acceptable forms of identification within the State of Indiana that does not single out or conflict with any identifiable immigration policy or regulation."  The judge reasoned that the provision targeted "only one form of identification – CIDs issued by foreign governments" and moreover, regulated CIDs "in the broadest possible terms, restricting not just what state agencies may accept as valid identification but prohibiting what identification may be shown and accepted for purely private transactions."   With regard to equal protection, the judge cited United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), noting that this "targeting" was a "bare desire to harm a politically unpopular group."  Thus, the judge found this provision unconstitutional as well.

The District Court Judge, Sarah Evans Parker (pictured above) was appointed to the bench by president Ronald Regan in 1984; an interesting profile of the judge, with video interviews, appeared earlier this year from Indiana Business Journal. 


June 26, 2011 in Current Affairs, Due Process (Substantive), Equal Protection, Foreign Affairs, Fourth Amendment, Preemption, Ripeness, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, June 6, 2011

Update on Hazelton Immigration Ordinance: Back to the Third Circuit

Today, the United States Supreme Court rendered an Order in Hazelton, PA v. Lozano:

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___ (2011).

Hazelton The Third Circuit panel, affirming the district court, rendered an extensive 188 page opinion in September 2010 which we discussed here.  The Third Circuit panel unanimously agreed that the two ordinances of Hazelton, Pennsylvania regulating immigration are pre-empted by the federal immigration scheme.  The employment provision in Hazleton made it unlawful “for any business entity” to “recruit, hire for employment, or continue to employ” or “permit, dispatch, or instruct any person” who is an “unlawful worker” to perform work within Hazleton, and required employer affidavits.   The ordinances also had a housing provision making it unlawful for landlords to rent to unlawful residents.

As we noted, the Third Circuit opinion conflicted in part with the Ninth Circuit's conclusion in Chamber of Commerce v. Whiting.  And now that the United States Supreme Court has affirmed Whiting - - - in an opinion last week - - - it is not surprising that the Court would remand Hazelton to the Third Circuit.



June 6, 2011 in Cases and Case Materials, Federalism, Preemption | Permalink | Comments (1) | TrackBack (0)

Thursday, May 26, 2011

Arizona Legal Workers Act upheld by Court: Chamber of Commerce v. Whiting Opinion Analysis

In a complex opinion, the United States Supreme Court affirmed the Ninth Circuit and upheld the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens."  The case was f/k/a Chamber of Commerce of the United States v. Candelaria. 

While the Ninth Circuit's opinion, as we previously noted, read like an excellent discussion of the doctrine, the Court's opinion is less clear and certainly more fractured:

ROBERTS, C. J., delivered the opinion of the Court, except as to PartsII–B and III–B. SCALIA, KENNEDY, and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to Parts I, II–A, and III–A and concurred in the judgment. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN, J., took no part in the consideration or decision of the case.

Importantly, Justice Kennedy seemed to have resolved his reservations expressed during oral argument about the position of Arizona in light of Justice Breyer's questions: Kennedy joined the opinion of CJ Roberts and not Justice Breyer's dissent.

Work in art The Court began with its conclusion "that the State’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law" and therefore held that the Arizona law is not preempted. 

After extensively explaining the federal immigration regulatory regime and the Arizona statute, the Court turns to the vital definition of "license."   The case pivots on the meaning of license because the Immigration Reform and Control Act of 1986 (IRCA), expressly pre-empts States from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens."

"Licensing" turns out to be an ambiguous term, although during oral argument Kennedy admited he initially thought, "Oh, well, licensing, that is a defined term; I will look in Corpus Juris Secundum or ALR or something," a sentiment echoed throughout the arguments.  Roberts and Alito seemed more certain than Kennedy that "licensing" was a clear and rather broad term that granted the state wide latitude, and indeed Roberts opinion for the Court quotes  Webster’s Third New International Dictionary.  The Court then notes:

The Chamber and the United States as amicus argue that the Arizona law is not a “licensing” law because itoperates only to suspend and revoke licenses rather than to grant them. Again, this construction of the term runscontrary to the definition that Congress itself has codified.See 5 U. S. C. §551(9) (“‘licensing’ includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license” (emphasis added)). It is also contrary to common sense. There is no basis in law, fact, or logic for deeming a law that grantslicenses a licensing law, but a law that suspends or revokes those very licenses something else altogether.

 On the issue of mandating employers to use the E-verify system to determine authorization to work, the Court rejected the Chamber of Commerce's argument that the Arizona requirement was impliedly preempted, noting that the federal government has encouraged participation in the system and that it is reliable.

Justice Breyer's lengthy dissenting opinion, joined by Justice Ginsburg, and Justice Sotomayor's separate dissenting opinion fundamentally disagree that the Arizona statute is a licensing law.  Breyer would "read the words “licensing and similar laws” as covering state licensing systems applicable primarily to the licensing of firms in the business of recruit-ing or referring workers for employment, such as the state agricultural labor contractor licensing schemes in exis-tence when the federal Act was created."  Justice Sotomayor emphasizes the statutory scheme and ultimately concludes:

the [federal] statutory scheme as a whole defeats Arizona’s and the majority’s reading of the saving clause.Congress would not sensibly have permitted States todetermine for themselves whether a person has employedan unauthorized alien, while at the same time creating aspecialized federal procedure for making such a determination, withholding from the States the information necessary to make such a determination, and precluding useof the I–9 forms in nonfederal proceedings.

Although Chamber of Commerce v. Whiting does not involve Arizona's  SB1070, the litigation is seen as having implications for the more notorious law.  However, it is distinct from SB 1070 in several important respects, including the fact that both the district judge and the Ninth Circuit found the Arizona statute at issue in Whiting to be constitutional.


[image: Work by Ford Maddox Brown, circa 1852  via]


May 26, 2011 in Federalism, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 17, 2011

Federal Bank Act, Regs Preempt State Par Value Statute

A three-judge panel of the Eleventh Circuit ruled last week in Baptista v. JP Morgan Chase Bank, N.A. that Office of the Comptroller of the Currency regulations promulgated under the National Bank Act preempted Florida's "par value" statute.

Florida's statute, Fla. Stat. Sec. 655.85, specifically prohibits a bank from "settl[ing] any check drawn on it otherwise than at par."  Thus when Baptista (who had no account at Chase) was charged a $6.00 fee when she sought to cash a check drawn on a Chase account, she sued, arguing that Chase's check-cashing service fee violated Florida law.

But OCC regulations allow a national bank to "charge its customers non-interest charges and fees, including deposit account service charges."  12 C.F.R. Sec. 7.4002(a).  OCC interpretive letters define "customer" to include "any person who presents a check for payment."

The court ruled that the OCC regs conflict with, and thus preempt, Florida's par value statute, applying the preemption standard from Section 5136(b)(1)(B) of the new Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010:

State consumer financial laws are preempted, only if . . . in accordance with the legal standard for preemption in the decision of the Supreme Court of the United States in Barnett Bank of Marion County, N.A. v. Nelson, Florida Insurance Commissioner, et al. . . . the State consumer financial law prevents or significantly interferes with the exercise by the national bank of its powers . . . .

12 U.S.C. Sec. 25b(b)(1). 

The Eleventh Circuit is apparently only the second federal appeals court to rule on preemption of state par value laws.  The Fifth Circuit was the first, in Wells Fargo Bank of Texas NA v. James, a 2003 case also ruling that OCC regs and the NBA preempt.  (The Fifth Circuit applied the Barnett Bank preemption standard as part of its analysis.  The case obviously predated the preemption provision in the Dodd-Frank Act.)


May 17, 2011 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, May 16, 2011

Texas House Moves Bill to Ban Federal Pat-Downs

The Texas House of Representatives this week passed legislation that would ban TSA pat-down searches, among other actions by state and federal officers.

The legislation, H.B. 1937, states that any "public servant" commits an offense when

while acting under color of the person's office of employment without probable cause to believe the other person committed an offense:

(A) performs a search for the purpose of granting access to a publicly accessible building or form of transportation; and

(B) intentionally, knowingly, or recklessly:

(i) touches the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing; or

(ii) touches the other person in a manner that would be offensive to a reasonable person.

The legislation also more generally bans any intentional denial or impediment by a "public servant" of "any right, privilege, power, or immunity, knowing the actor's conduct is unlawful."

The legislation defines "public servant" to include an "officer, employee, or agent of the United States."

The bill (if it were to become law)--obviously preempted by federal law creating and empowering the TSA, among other federal "public servants"--is best understood as yet another political statement by a State objecting to federal policy.  (This appears to be the first state bill passed by any house in any state legislature that would ban TSA pat-downs.)


May 16, 2011 in Federalism, Fourth Amendment, Fundamental Rights, News, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, May 9, 2011

NLRB Challenges Arizona's Secret Ballot for Union Representation

The National Labor Relations Board filed suit last week against the State of Arizona challenging its constitutional provision that guarantees the right to vote by secret ballot for employee representation.  The complaint alleges that Article 2, Section 37, of the Arizona Constitution--approved by Arizona voters just last November--is preempted by the National Labor Relations Act.

Article 2, Section 37, of the Arizona Constitution reads as follows:

The right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

But the National Labor Relations Act permits (but does not require) secret ballot elections only in certain circumstances.  Otherwise, employees have the right to organize and to bargain collectively "through representatives of their own choosing."  29 U.S.C. Sec. 157.

The NLRB argues that the state constitution clashes with the Act:

Because Article 2, Section 37, of Arizona's constitution provides that a secret ballot election is "guaranteed" wherever federal law "permits or requires elections" (emphasis supplied), Article 2, Section 37, requires elections where federal law does not and thereby deprives private sector employees of their right to pursue the other options permitted by federal law to designate, select, or authorize representatives of their own choosing and to secure their employers' voluntary recognition of such representatives.

We posted on other states' efforts to limit collective bargaining rights here.


May 9, 2011 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, April 11, 2011

Ninth Circuit Upholds Injunction Against Arizona SB1070

In its opinion issued today in United States v. Arizona, a panel of the Ninth Circuit affirmed the district court's preliminary injunction against the enforcement of four sections of the Arizona immigration statute passed a year ago and commonly known as SB 1070.  The Ninth Circuit held that the US had a likelihood of success on its federal preemption argument against these four sections based on the federal government's claim of preemption under the Supremacy Clause, Article VI.

Judge Richard Paez wrote the panel's opinion of 40 plus pages; John Noonan wrote a concurring opinion and Carlos Bea wrote a partial concurrence and partial dissent.  Sb1070

In the panel opinion, Judge Paez set out the applicable standards before turning to each section.  The discussions in each section, however, also analyzed different standards and facets of the complexity that is preemption doctrine.

As to section 2(B), Judge Paez rejected Arizona's argument that state law enforcement officers are only required to verify the immigration status of an arrested person before release if reasonable suspicion exists that the person lacks proper documentation:

On its face, the text does not support Arizona’s reading of Section 2(B). The second sentence is unambiguous: “Any person who is arrested shall have the person’s immigration status
determined before the person is released.” Ariz. Rev. Stat. Ann. § 11-1051(B) (2010) (emphasis added). The all encompassing “any person,” the mandatory “shall,” and the definite “determined,” make this provision incompatible with the first sentence’s qualified “reasonable attempt . . . when practicable,” and qualified “reasonable suspicion.”

This - as well as other language in the statute - conflicted with INA, the federal law: "8 U.S.C. § 1357(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General."

As to section 3, Judge Paez found that Arizona's state criminal provision that "a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation" of federal law, is not authorized by federal statutes and "plainly stands in opposition to the Supreme Court's direction" regarding field preemption. 

Section 5(c), the "work" provision which makes criminal an "unauthorized alien" knowingly applying for work soliciting work in a public place, or performing work, Judge Paez stressed the Congressional rejection of work penalties in the INA, as well as Ninth Circuit precedent on this issue, and concluded that federal law "likely preempts SB1070 Section 5(C) since the state law conflicts" with Congressional intent.

Finally, in addressing Section 6 which provides that a "peace officer, without a warrant, may arrest a person if the officer has probable cause to believe"  that the "person to be arrested has committed any public offense that makes the person removable from the United States," Judge Paez found that states do not have inherent authority to enforce the civil provisions of federal immigration law.  Moreover, this section "interferes with the federal government's prerogative to make removability determinations and set priorities." 

Concurring, Judge Noonan wrote separately "to emphasize the intent of the statute and its compatibility with federal foreign policy." 

Judge Bea concurred as to Sections 3 and 5(C), but dissenting as to the other two sections, stressing that the enforcement mechanisms and the necessity of considering Congressional - - - and not Executive - - - intent.


[image via]

April 11, 2011 in Congressional Authority, Criminal Procedure, Current Affairs, Opinion Analysis, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 8, 2010

Chamber of Commerce v. Whiting Oral Argument Analysis: An Arizona Immigration Statute Before the Supreme Court

The Court heard oral argument this morning in Chamber of Commerce v. Whiting, a constitutional challenge on Supremacy Clause/preemption grounds to the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens."   The law was signed by then-governor of Arizona Janet Napolitano, who is now Secretary of Homeland Security and tasked with enforcing federal immigration law, an "irony" noted by Nina Totenberg of NPR.

The Court granted certiorari in late June to review a Ninth Circuit opinion upholding the constitutionality of the Arizona statute.  [The case was formerly known as Chamber of Commerce v. Candelaria].  While the statute at issue is not the notorious Arizona SB1070, the attention that SB1070 has garnered is not irrelevant and may have contributed to the Court's grant of certiorari.

Justice Kagan has recused herself and did not participate in today's argument.  As Solicitor General, she filed a brief on the petition for writ of certiorari; the Solicitor General's brief advocated that the writ be granted, limited to the first question presented," that question being one of express preemption of the Legal Arizona Workers Act by  8 U.S.C. 1324a(h)(2)—which preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”  That is precisely the issue before the Court.  Acting Solictor General Neal Katyal argued on behalf of the United States, supporting the Chamber of Commerce.

Arguing for the Chamber of Commerce Carter Phillips quickly articulated the notion that the Arizona statute provides for a “death penalty to the business” in that it might completely “eliminate the business's right to exist.”  This "right to exist" occurs because Arizona's statute relies upon a provision in the 1986 federal statute, the Immigration Reform and Control Act (“IRCA”), regarding state authority to impose sanctions through licensing and similar laws. 

"Licensing" turns out to be an ambiguous term, although in today's oral argument Kennedy admits he initially thought, "Oh, well, licensing, that is a defined term; I will look in Corpus Juris Secundum or ALR or something," a sentiment echoed throughout the arguments.  Roberts and Alito seemed more certain than Kennedy that "licensing" was a clear and rather broad term that granted the state wide latitude. 

Sotomayor, however, had a different point: "how they define "license" or not is irrelevant to me."  She asked Carter Phillips to explain the preemption of the state's ability to adjudicate, which for her is the central question. 

In her argument, Mary O'Grady, Solicitor General of Arizona, emphasized the ability of the state to make determinations under the "savings clause" regarding licenses.  However, at one point, Scalia seemed to believe her argument was too narrow:

JUSTICE SCALIA: Excuse me. Are you conceding that any variation from the Federal standards for -- for criminal and civil liability is automatically precluded?
I mean, as I read the exception, it's an exception for State licensing and similar laws. And it doesn't say, "So long as those licensing and similar laws go no further than what the Federal government has done." I mean, we often allow States to impose regulatory requirements that go beyond the regulatory requirements that the Federal government has imposed, and that is not automatically considered to be preempted. So why -- why are you conceding that Arizona cannot go a whit beyond what the Federal government says?
MS. O'GRADY: Because I think what Congress preserved for us was our ability to impose sanctions, including the suspension and revocation of State laws. But I do think they established a uniform national standard. I don't think we could, for example, establish a strict liability offense in Arizona. We would have to have a scienter requirement as they have in Federal law.

Breyer expressed concern that the state law essentially encouraged discrimination in conflict with the federal statute:

JUSTICE BREYER: Congress has passed a statute that gives the employer just as much incentive to verify, so there is no discrimination, as to dismiss, so there is no illegal hiring. It's absolutely balanced. A $1,000 fine for the one, a $1,000 fine for the other.

So Arizona comes along and says: I'll tell you what, if you discriminate, you know what happens to you, nothing? But if you hire an illegal immigrant, your business is dead. That's just one thing they do. Now, how can you reconcile that intent to prevent discrimination against people because of their appearance or accent -- how do you reconcile that with Arizona's law?

If Kennedy is the deciding Justice, two of his comments to O'Grady arguing on behalf of Arizona may be indicative that the Court will conclude that the state statute is preempted:

JUSTICE KENNEDY: But you are taking the mechanism [E-VERIFY] that Congress said will be a pilot program that is optional and you are making it mandatory. It seems to me that's almost a classic example of a State doing something that is inconsistent with a Federal requirement.

JUSTICE KENNEDY: Just so you know, I interpret your answer as confirming the implication of Justice Breyer's questions that there is a very substantial difference in Federal and State law on this point. I mean, you told about -- you know what lawsuits are about. If you are home free, a driver's license and Social Security inspection under Federal law and you're not under State law, that is a difference.


[image: Max Liebermann, Women in a canning factory, 1879 via].

December 8, 2010 in Cases and Case Materials, Federalism, Oral Argument Analysis, Preemption, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 26, 2010

Arizona Voter Identification Law Unconstitutional as Preempted by National Voter Registration Act

A Ninth Circuit panel opinion today, with retired Justice Sandra Day O'Connor sitting by designation, has declared Arizona Proposition 200 regarding citizenship identification for voting, invalid as preempted.   Judge Sandra Ikuta begins her opinion for the majority of the panel with this description:



Proposition 200 requires prospective voters in Arizona to present documentary proof of  citizenship in order to register to vote, Ariz. Rev. Stat. §§ 16-152, 16-166, and requires registered voters to present proof of identification in order to cast a ballot at the polls, Ariz. Rev. Stat. § 16-159. This appeal raises the questions whether Proposition 200 violates the Voting Rights Act § 2, 42 U.S.C. § 1973, is unconstitutional under the Fourteenth or Twenty-fourth Amendments of the Constitution, or is void as inconsistent with the National Voter Registration Act (NVRA), 42 U.S.C. § 1973gg et seq. We hold that the NVRA supersedes Proposition 200’s voter registration procedures, and that Arizona’s documentary proof of citizenship requirement for registration is therefore invalid.


The panel considered the preemption doctrine under Election Clause preemption rather than under Supremacy Clause preemption: "Because the Elections Clause empowered Congress to enact the NVRA,"  the preemption analysis under that Clause is applicable."   The panel derived its approach from two cases 120 years apart:  Ex Parte Siebold, 100 U.S. 371 (1879) and Foster v. Love, 522 U.S. 67 (1997).

Reading Siebold and Foster together, we derive the following approach for considering whether federal enactments under the Elections Clause displace a state’s procedures for conducting federal elections. First, as suggested in Siebold, we consider the state and federal laws as if they comprise a single system of federal election procedures.  If the state law complements the congressional procedural scheme, we treat it as if it were adopted by Congress as part of that scheme. If Congress addressed the same subject as the state law, we consider whether the federal act has superseded the state act, based on a natural reading of the two laws and viewing the federal act as if it were a subsequent enactment by the same legislature.  With this approach in mind, we consider whether the NVRA and Proposition 200 operate harmoniously in a single procedural scheme for federal voter registration.

Opinion at 17643 (citations omitted).  The panel concluded that the state law did not operate "harmoniously" with the NVRA.

Dissenting, Judge Alex Kozinski was highly critical of the majority, ending his own opinion by writing, "Few panels are able to upset quite so many apple carts all at once. Count me out."  Dissenting Opinion at 17704.  Kozinski's argument is that the panel has evaded the law of the Circuit and weakened the rules surrounding the law of the case.  He argues that the panel is wrong not to take precedent seriously and wrong that the precedent it disregards was erronelously decided.


October 26, 2010 in Current Affairs, Elections and Voting, Fundamental Rights, Opinion Analysis, Preemption | Permalink | Comments (1) | TrackBack (0)

Thursday, September 9, 2010

Third Circuit Declares Hazelton Immigration Ordinances Unconstitutional

In a closely watched case with similarities to the challenges to Arizona's SB 1070 (partially enjoined by a district judge), the Third Circuit issued a 188 page opinion today.  Upholding the district judge, the panel unanimously agreed that the two ordinances of Hazelton, Pennsylvania regulating immigration are pre-empted by the federal immigration scheme.

US_Permanent_Resident_Card_2010-05-11 The court spends considerable space discussing the Hazelton ordinances, which are also contained in a twenty page appendix.  Basically, however, there are two pertinent provisions: the "employment" ordinance and the "housing" ordinance.  While finding both unconstitutional, the Third Circuit ruled that the employment provision and housing provision must be treated separately.  The panel also found the plaintiffs had standing to challenge both of these provisions, except for the section that allowed for a private cause of action, and that some of the plaintiffs could proceed anonymously.

The employment provision makes it unlawful “for any business entity” to “recruit, hire for employment, or continue to employ” or “permit, dispatch, or instruct any person” who is an “unlawful worker” to perform work within Hazleton, and requires employer affidavits.  The Third Circuit noted that a licensing scheme is not expressly pre-empted by the federal Immigration Reform and Control Act (“IRCA”), and also that it was subject to a presumption against pre-emption.

However, the court noted that the Hazelton employment provisions upset the "careful balance" Congress crafted in the IRCA:

By imposing additional sanctions on employers who hire unauthorized aliens, while not penalizing those who discriminate, Hazleton has elected to place all of its weight on one side of the regulatory scale. This creates the exact situation that Congress feared: a system under which employers might quite rationally choose to err on the side of discriminating against job applicants they perceive to be foreign. This is inconsistent with IRCA and therefore cannot be tolerated under the Supremacy Clause.

The court thus does not demand the plaintiffs prove discrimination is occurring in Hazelton, reasoning that "Congress has already addressed that question."  The court adds that although "Congress could not have been certain that one-sided sanctions would lead to future discrimination when it enacted IRCA, it was sufficiently troubled by the likelihood to commit to preventative action."   Therefore to be "consistent with federal law, states and localities that use regulatory enactments to sanction employers who have been found guilty of employing unauthorized aliens under IRCA must impose sanctions of equal severity on employers found guilty of discriminating."

The court subjected the housing provisions to an even stricter standard, finding that they are not entitled to any presumptive constitutionality.  The court stated that through its "housing provisions, Hazleton attempts to regulate residence based solely on immigration status. Deciding which aliens may live in the United States has always been the prerogative of the federal government. Hazleton purposefully chose to enter this area of significant federal presence."  The court noted that Hazelton's ordinance must be considered in the context of all communities:  if Hazelton can pass such an ordinance, so can every locality.  (We discussed a challenge to an ordinance in Fremont, Nebraska here).

Perhaps most importantly, the court noted that Hazelton's attempt to regulate based on what it termed a "snapshot" of immigration status was problematical:

Merely because an immigrant may have a present status does not mean that this status is correct, unchangeable, or may cause the federal government to exercise its discretion to remove the immigrant.  Stitched into the fabric of Hazleton’s housing provisions, then, is either a lack of understanding or a refusal to recognize the complexities of federal immigration law. Hazleton would effectively remove from its City an alien college student the federal government has purposefully declined to initiate removal proceedings against. So too would Hazleton remove an alien battered spouse, currently unlawfully present, but eligible for adjustment of status to lawful permanent resident under the special protections Congress has afforded to battered spouses and children.

Such a rationale seems fatal for any argument that a locality is simply enforcing the federal immigration laws.

The opinion's conclusion on the employer provision, however, conflicts with the Ninth Circuit's opinion in  Chamber of Commerce of the United States v. Candelaria, on which the Supreme Court granted certiorari.  Candelaria involves the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens." 


[image via]

September 9, 2010 in Current Affairs, Federalism, Opinion Analysis, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 28, 2010

Immigration Laws Passed by States: Information Available

A report issued today by the National Conference of State Legislatures compiles bills proposed, vetoed, and adopted by state legislatures regarding immigration-related issues.  This is a great research tool for anyone doing scholarship or litigation in this area, as well as preparing for class.

120px-TXDOT_R20-3.svg Summaries of the enacted laws  - - - one table organized by state and another table organized by subject matter - - - are available at the NCSL website here.  (Note: the website warns that the "NCSL publication and PDF are registered with the NCSL copyright and may not be reproduced, uploaded or distributed in any way in its entirety" so only a link is provided).

There is a wealth of information in the pdf summaries and discussed on the website.  The summaries are 70 plus pages, in table form, with a bit of information and the bill number (but no hyperlink to the actual bill text).  There is also a helpful database search feature here which provides links to find the text and legislative history of bills.

The NCSL represents its members - - - state legislatures - - - as continuing to "lead the way" on immigration issues and entitles its findings "States Step Up to the Plate on Immigration."   It acknowledges the controversy that Arizona SB1070 has provoked.  It also notes that "state laws related to immigration have increased dramatically over the past decade," with 300 bills introduced (and 38 enacted) in 2005, and more than 1500 bills (and 222 enacted) in 2009.


July 28, 2010 in Current Affairs, Foreign Affairs, Preemption, Supremacy Clause, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, July 26, 2010

Sanctuary Cities, Immigration, and Federal Preemption

The Obama administration is hypocritical for pursuing Arizona's law to control illegal immigration even as it ignores local governments that order employees not to ask about a person's immigration status or to report it to federal agents, critics claim.  These so-called sanctuary cities are local governments that have elected "not . . . to use their resources to enforce a federal law," according to a Justice Department spokesperson quoted in Monday's Chicago Tribune.  Critics of the administration claim that sanctuary cities run up against federal law, and are therefore preempted by federal law, every bit as much as--indeed, more than--Arizona's SB 1070.  (The Justice Department filed its complaint against Arizona alleging federal preemption earlier this month.  Judge Bolton of the District of Arizona heard arguments on the Department's motion for a preliminary injunction last week.  The law is scheduled to take effect Thursday.)

The preemption arguments against sanctuary cities are similar to the preemption arguments against SB 1070: sanctuary cities regulate in an area, immigration, that is granted exclusively to the federal government and in which the federal government has occupied the field; and sanctuary cities violate a federal prohibition against any government restricting its employees from reporting to the feds the immigration status of any individual:

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

8 U.S.C. Sec. 1373(a).  The provision includes no penalties or enforcement tools.

Critics say the administration is hypocritical for suing Arizona on a preemption theory while ignoring sanctuary cities.  More than hypocrisy, though, critics charge that the administration has its priorities exactly backwards.  After all, Arizona is simply trying to enforce federal law, while sanctuary cities are actively violating it.  Sanctuary cities, and not Arizona, critics argue, ought to be the federal target. 


July 26, 2010 in Congressional Authority, Federalism, Foreign Affairs, News, Preemption | Permalink | Comments (1) | TrackBack (0)

Thursday, July 22, 2010

Immigration Ordinance in Nebraska City of Fremont Challenged

The “Immigration Ordinance” of Fremont, Nebraska prohibits  “the harboring of illegal aliens or hiring of unauthorized aliens.”  Ordinance 5165 was passed by a ballot initiative this June (by a vote of  3906  to 2908) and is scheduled to become effective July 29, 2010.

The Ordinance 5165 provides that all persons renting or leasing dwelling units obtain an “occupancy license” from the city.   The fee is $5.00, and requires “citizens or nationals” to sign a declaration so stating, and
in cases in which the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, "A" number, 1-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the alien does not know of any such number, he shall so declare. Such a declaration shall be sufficient to satisfy this requirement.

Fremont Ordinance 5165 also requires that “Every business entity employing one or more employees and performing work within the City shall register in the [federal] E-Verify Program within 60 days after the effective date of this Ordinance, and shall use the E-Verify Program to verify the authorization of employment in the United States of each employee hired after such registration.


Interestingly, before the vote, the City of Fremont itself brought an action in state court seeking a declaratory judgment that any ordinance resulting from the ballot initiative would be unconstitutional in contravention of the Supremacy Clause. The Nebraska Supreme Court issued its opinion in April: it did not rule on the merits of the Supremacy Clause argument, holding instead that “substantive challenges to proposed initiatives are not justiciable before the measure is adopted by voters.”   (The city also argued that the ballot measure violated the state constitution’s “single subject” rule, but the Nebraska Supreme Court affirmed the lower court’s conclusion that the measure did have “one general subject- - - the regulation of illegal aliens in Fremont.”)

Two complaints have been filed in federal court challenging the constitutionality of the Ordinance.

The  ACLU Nebraska Foundation and various named plaintiffs have filed a Complaint in the US District Court for Nebraska seeking an injunction against enforcement of the Fremont Ordinance.  The complaint alleges that the Fremont Ordinance is subject to preemption under the Supremacy Clause, Article VI; that the Fremont Ordinance is unconstitutional under the Equal Protection Clause; that the Fremont Ordinance is void for vagueness under the Due Process Clause; and that the Ordinance violates the Federal Fair Housing Act and state laws regarding municipal powers.

The Complaint filed by MALDEF that includes a landlord as a named plaintiff also seeks an injunction and likewise alleges preemption and equal protection, and also includes a commerce clause claim.

In defending the lawsuits, the City of Fremont is in the unenviable position of having the complaints filed against it repeat the very arguments it previously advanced. According to the Nebraska Supreme Court opinion:

Fremont points out that courts have uniformly determined that harboring and housing provisions such as those contained in the Measure are preempted by federal law and therefore are unconstitutional. It therefore asserts that measures which are unconstitutional or void are beyond the power or authority of a municipality to enact and are therefore not subject to initiative or referendum.
The Nebraska Supreme Court followed this recitation of the city’s argument by stating:  “We point out that a measure is not unconstitutional until a court makes such a determination.”  

The federal district court in Nebraska now has the task of making such a determination.  Some of our previous discussions of preemption/Supremacy Clause and other arguments regarding immigration laws passed by states and localities are available here, here and here.  An excellent news report on the Fremont, Nebraska controversy is here.

[image: view of Fremont, Nebraska, 1908 via]


July 22, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, News, Preemption, State Constitutional Law, Tenth Amendment | Permalink | Comments (2) | TrackBack (0)