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.
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.
Thursday, September 29, 2011
The second case the Court will hear this Term involves a critical question about access to the courts and constitutional enforcement: May a private party sue under the Supremacy Clause to force California to comply with federal Medicaid program requirements?
The case, Douglas v. Independent Living Center, arose out of California’s cuts to its Medicaid program, dubbed Medi-Cal. In 2008 and 2009, the California legislature slashed Medi-Cal funding in order to help deal with the state’s fiscal crisis. The legislature cut reimbursement rates for participating Medi-Cal providers by ten percent; it reduced future reimbursement rates by one percent from their pre-2008 levels; and it reduced the maximum contribution paid by Medi-Cal for wages and benefits for in-home supportive services. The state did not study the impact of these cuts or submit them to federal Medicaid regulators at the Centers for Medicare and Medicaid Services, or CMS, as required by federal law.
Medi-Cal providers and beneficiaries sued in five separate cases in state and federal courts under the Supremacy Clause, arguing that California’s cuts were preempted by federal Medicaid requirements. In particular, the plaintiffs argued that California’s cuts failed to satisfy the requirements of Section 30(A) of the Medicaid Act, which says that participating states must ensure that state Medicaid payments to health care providers “are consistent with efficiency, economy, and quality of care” and “sufficient to enlist enough providers so that care and services are available . . . to the general population in the geographic area.” Under Section 30(A), states also have to study the impact of any proposed rate reductions on health care services and submit them to the CMS for review.
In a series of appeals, the Ninth Circuit ruled that the plaintiffs qualified for a preliminary injunction against the state, thus halting the cuts. The state then appealed to the Supreme Court, arguing that the plaintiffs, as private parties, could not sue under the Supremacy Clause—that private parties could not enforce this structural provision of the Constitution in court without an explicit private right of action or an interference with a fundamental right.
The state argues that the plaintiffs have no private cause of action under either federal law or the Constitution. As to federal law, the state says that neither Section 30(A), nor any other federal law, explicitly gives plaintiffs a private right of action to enforce Medicaid requirements against a state. The legislative history of the Medicaid Act only underscores this. In 1997, Congress revoked the “Boren Amendment,” a portion of the Medicaid Act. That provision, according to an earlier Supreme Court ruling, gave private parties a right private of action and spawned an explosion of lawsuits challenging state Medicaid rates. The state argues that Congress’s revocation of the provision suggests that it intended to remove any right of action, not to create one. Moreover, the state contends, Section 30(A) gives plaintiffs no individual right that they might enforce by way of a civil rights action under Section 1983.
The state says that the plaintiffs also have no right of action under the Supremacy Clause. The state claims that the Supremacy Clause is not a source of rights but rather a rule of decision for parties already properly before the courts. The state contends that cases challenging Spending Clause legislation, like the Medicaid Act, which authorizes federal funds only for states that agree to and comply with federal Medicaid requirements, are particularly inappropriate. This is because state law cannot conflict with federal law under the Spending Clause: any “conflict” only means that the state is not complying with federal requirements and is therefore ineligible for continued federal program funds. Thus a “conflict” is really no conflict at all; it’s only a state choice to not participate in the program.
Finally, the state notes that the plaintiffs are already participating as amici in an administrative process that tests the Medi-Cal cuts. The state says that it appealed CMS’s initial rejection of its cuts through an established administrative process; that process is pending. The state argues that this process is the only appropriate venue for the plaintiffs’ participation in this essentially state-federal dispute.
The plaintiffs counter that the original understanding of the Supremacy Clause and the Court’s subsequent jurisprudence both suggest that they may properly bring their claim. They say that courts have consistently concluded that a plaintiff could lodge a case against a state for declaratory and equitable relief under the Supremacy Clause—that these claims do not require explicit statutory authorization. And they say that they need not point to an interference with their rights (to bring a Section 1983 case): their claim under the Supremacy Clause is a constitutional claim that must exist on its own as an incident of the Constitution’s structure and operation. The plaintiffs claim that they seek to enforce federal preemption under the Supremacy Clause, not (just) the requirements of Section 30(A).
The United States weighed-in on the side of the state. It argued that the Court could dodge the precise and knotty question by recognizing that this case is special. This is a Spending Clause case, it says, and, as described above, there simply can be no conflict between state and federal law. With no conflict, there is no preemption; and with no preemption, there is no Supremacy Clause issue.
The case comes at the complicated intersection of state politics and finance, health care, federalism, and standing—considerations and interests that pull in different directions, at a time when states face increasing fiscal challenges, when health care costs are rising, affecting coverage, and when the other health care issues are on everyone’s mind. (I need not remind readers that parties on both sides of the Eleventh Circuit ruling overturning the so-called individual mandate filed petitions for review with the Court on Wednesday.)
For example, a ruling for the state would allow states to continue to balance their budgets on the backs of Medicaid providers and recipients, often their most vulnerable populations, checked only by the administrative process at the CMS, which California has well demonstrated that a state can manipulate (through delay and foot-dragging). On the other hand, a ruling for the plaintiffs would mean that plaintiffs could tie up states in litigation any time a state wanted to cut Medicaid rates, or to make any other significant changes to their Medicaid programs. In short, the case is hard.
On a different level, the Court will also have to grapple with private party standing to bring structural claims under the Constitution. The Court ruled last Term in Bond v. U.S. that a private individual, a criminal defendant, had prudential standing to challenge a federal criminal statute as violating the Tenth Amendment, another structural provision. If Bond opened the door a little wider for structural claims by private litigants, Reynolds could break it wide open. That’s because the plaintiffs in Reynolds aren’t already properly before the courts (as Bond was); they are bringing their claim under a structural provision alone. And they are doing it in the context of a Spending Clause program.
The Court can easily dodge this bullet, though. As the U.S. government argues, there really is no conflict in this case between state and federal law that the Supremacy Clause can resolve. This truth provides the clearest path for a ruling here. Look for the Court to fall back on it, even if it frustrates private Medicaid providers’ and recipients’ quests to hold their states to federal Medicaid requirements.
Wednesday, September 28, 2011
UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.
Accompanying her opinion in United States v. Alabama issued today [discussed in part I], Judge Blackburn a while later issued a 100 plus page Memorandum opinion in Hispanic Interest Coalition of Alabama v. Bentley enjoining other portions of the controversial HB56.
Some of the Hispanic Interest Coalition of Alabama's (HICA) challenges were moot by the Judge's opinion in United States v. Alabama issued earlier today. However, Judge Blackburn found that none of the HICA plaintiffs had standing to challenge HB56 in its entirety, and that HICA did not have standing as an association. Thus for each challenge, the judge considered standing. The judge found that HICA plaintiffs did not have standing to challenge one of the more controversial sections, section 28, regarding enrollemnt of students in public schools.
The Judge did grant a preliminary injunction of three separate provisions.
First, Judge Blackburn issued a preliminary injunction of Section 8 of HB56, as preempted by federal immigration law. HB56 §8 provides:
An alien who is not lawfully present in the United States shall not be permitted to enroll in or attend any public postsecondary education institution in this state. An alien attending any public postsecondary institution in this state must either possess lawful permanent residence or an appropriate nonimmigrant visa under 8 U.S.C. § 1101, et seq. For the purposes of this section, a public postsecondary education institution officer may seek federal verification of an alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c). A public postsecondary education institution officer or official shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States. Except as otherwise provided by law, an alien who is not lawfully present in the United States shall not be eligible for any postsecondary education benefit, including, but not limited to, scholarships, grants, or financial aid.
The judge found that Congressional intent was contrary and clear, and thus the state law was preempted. Only Congress, the judge stated, may "classify aliens" including for postsecondary education.
Second, the judge issued a preliminary injunction of the last sentences of Sections 10(e), 11(e), and 13(h) based on the Compulsory Process Clause of the Sixth Amendment. These sentences provide that "A court of this state shall consider only the federal government’s verification in determining whether an alien is lawfully present in the United States." The judge found that to the extent Sections 10(e), 11(e), and 13(h) of H.B. 56 are interpreted as allowing a defendant to be convicted based on a certificate of nonexistent record (CNR) without testimony from the clerk or officer preparing the report, these sections violate the Confrontation Clause, but because there is no evidence this has occurred, the Confrontation Clause argument does not merit a preliminary injunction. As to the Compulsory Process Clause challenge, however, Judge Blackburn ruled that by "limiting evidence admissible in a state-court proceeding to “only” the federal government verification of lawful presence, Sections 10(e), 11(e), and 13(h) deny every person accused of violating Sections 10, 11 or 13 of H.B. 56 the constitutionally-protected right to present a defense. By denying accused individuals the opportunity to prove lawful presence, Alabama has denied all individuals charged under these sections with their right to compulsory process."
Third, the judge issued a preliminary injunction of Sections 11 (f) and (g) based on the First Amendment. These provision provide:
(f) It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
(g) It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
The judge found that these provision were not content nuetral because they applied to a particular subject matter of expression - - - solitication of employment - - - rather than to partcular conduct, such as blocking traffic. Yet the judge also analyzed the provisions under the commercial speech doctrine Alabama advocated, finding them failing to satify that lower standard.
Like US v. Alabama, this is sure to be appealed to the Eleventh Circuit, and Judge Blackburn's opinions might not be affirmed in all respects, but its careful analysis is sure to be accorded respect.
September 28, 2011 in Congressional Authority, Criminal Procedure, Current Affairs, First Amendment, Opinion Analysis, Preemption, Standing, Supremacy Clause, Travel | Permalink | Comments (0) | TrackBack (0)
UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.
Judge Sharon Lovelace Blackburn, Chief Judge of the Northern District of Alabama, has issued a 115 page Memorandum Opinion enjoining portions of HB 56 in United States v. Alabama. [UPDATE: Other portions of HB56 are enjoined in a separate opinion in Hispanic Interest Coalition of Alabama v. Bentley]
Days before the law was scheduled to go into effect on September 1, Judge Blackburn issued a temporary injunction which made it clear it did not address the merits.
The judge has now rendered her opinion on the various provisions that the United States claims are pre-empted. Her opinion thus allows a few of the more controversial portions of HB56 to become effective.
Here's the result of her detailed analysis, with the provisions the Judge has declared enjoined as preempted in bold:
H.B. 56 § 10, which creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States.
H.B. 56 § 11(a), which makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work.
H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.
H.B. 56 § 13, which makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspire to do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.
H.B. 56 § 16, which forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.
H.B. 56 § 17, which establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring, or retaining, an unauthorized alien.
H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.
H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.
H.B. 56 § 28, which requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.
H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.
In her analysis, the Judge relied heavily on the Third Circuit case of Lozano, regarding the Hazelton ordinance, which has been vacated and remanded, and the Ninth Circuit case of United States v. Arizona, on the notorious SB1070, as might be expected. However, less predictable is Judge Blackburn's rejection of the Ninth Circuit's opinion in Arizona regarding "unlawful presence," (§10 of HB56). In part, Judge Blackburn factually distinguishes the Arizona and Alabama statutes. However, Blackburn also makes it clear she thinks Arizona is incorrect and extensively quotes the dissenting opinion.
Judge Blackburn found one of the most controversial sections of HB56 - - - §13, the haboring transporting provision - - - subject to injunction as pre-empted. Blackburn's analysis here, especially distinguishing §10, is worth a look:
H.B. 56 § 13 thus represents a significant departure from homogeneity, which “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Section 13 creates an Alabama-specific harboring scheme that “remove[s] any federal discretion and impermissibly places the entire operation – from arrest to incarceration – squarely in the State’s purview.” Unlike Section 10, which constrains the Alabama courts to the line of federal precedent interpreting 8 U.S.C. §§ 1304 and 1306, Section 13 imposes no obligation on Alabama courts to take guidance from federal courts and agencies in interpreting the word “harboring” as H.B. 56 § 13 is state law. For all these reasons, the court finds the United States is likely to succeed in showing that Section 13 is preempted.
[Op. at 84, citations omitted].
Given her conclusion on §13, the Judge ruled that the "Clergy Complaint" objection to the same section was moot; She also denied the Clergy motion seeking to enjoing §27 in accordance with her conclusion in US v. Alabama.
Sure to be appealed to the Eleventh Circuit, by either the United States or Alabama or both, Judge Blackburn's opinions might not be affirmed in all respects, but its careful analysis is sure to be accorded respect.
Monday, August 29, 2011
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
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.
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.
Tuesday, August 2, 2011
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.
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]
Friday, July 8, 2011
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 appeal; Indiana'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
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)
Monday, April 11, 2011
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.
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.
Thursday, January 6, 2011
A group of state lawmakers yesterday announced a coordinated multi-state initiative to tee up the Fourteenth Amendment Citizenship Clause for judicial review. The NYT reports here; LAT here; NLJ here.
The Citizenship Clause in Section 1 of the Fourteenth Amendment (1868) reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
The lawmakers, along with a group called State Legislators for Legal Immigration, proposed a model bill that would zero in on the phrase "subject to the jurisdiction thereof" in defining state citizenship. They say that phrase means that at least one parent of a child born within the United States must owe no allegiance to any foreign sovereignty--that is, that they must be a U.S. citizen or national, a permanent "legal" immigrant, or a person without citizenship in another country, or that the child has no citizenship or nationality in another country. (Model language is here.)
Proponents hope that the model statute would draw a judicial challenge, thus presenting the phrase for review by the courts, ultimately the Supreme Court.
They seem pretty confident in their interpretation, but there's good evidence against them. Start with the congressional debates over the Fourteenth Amendment--a debate eerily similar to that today. The debate in the 39th Congress focused on Chinese immigrants in California and Gypsies in Pennsylvania (among other groups), with opponents of birthright citizenship claiming that Chinese and Gypsies would take over those states. Opponents of birthright citizenship in the Amendment (obviously) lost that debate in the 39th Congress.
Even before the Fourteenth Amendment--and before the Constitution had anything to say about birthright citizenship--the New York Court of Chancery ruled in Lynch v. Clarke in 1844 that a child of "alien parents, during their temporary sojourn in [New York]," was a citizen. The court ruled that citizenship was a national, not state, responsibility; and the U.S. Constitution being silent on the matter, the common law rule that a child born "within the king's allegiance, became subjects, whatever were the situation of their parents" governed. Thus: "It is therefore the law of the United States, that children born here, are citizens, without any regard to the political condition or allegiance of their parents." (The Supreme Court seemed to assume, but did not squarely rule, in 1804 in Murray v. The Charming Betsy that those born within the United States were citizens.) The Citizenship Clause of the Fourteenth Amendment would seem only to affirm and constitutionalize (not qualify or reverse) this holding.
Post-Fourteenth Amendment, the Supreme Court ruled in U.S. v. Wong Kim Ark (1898) that a child born to Chinese aliens was a U.S. citizen under the Citizenship Clause. The parents were "subjects of the Emperor of China," but "domiciled residents of the United States." After an exhaustive review of birthright citizenship, the Court wrote,
the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. [Ed: The Court carved out this exception in Elk v. Wilkins (1884), based upon the unique place that Native Americans had in the Constitution.] The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains wtihin our territory, is yet . . . "strong enough to make a natural subject . . . ."
Opponents of birthright citizenship distinguish and criticize Wong Kim Ark. (Check out this 2006 piece at the Heritage Foundation for a flavor.)
For an excellent overview, putting this all in a larger context, but focusing on congressional legislation and proposed constitutional amendments from the 111th Congress, check out this Congressional Research Service report, Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents.
Thursday, December 16, 2010
A divided three-judge panel of the Ninth Circuit last Friday upheld California's law providing for a cause of action by Armenian Genocide victims (or their ancestors) against insurance companies that sold them a policy in Europe or Asia between 1875 and 1923.
Defendant insurance companies in Movsesian v. Victoria Versicherung AG argued that the state law was preempted by "a clear, express federal policy against the use of the term 'Armenian Genocide.'" But the majority ruled that any executive branch communications arguing against recognition of the Armenian Genocide were outweighed by federal government statements in favor of such recognition. Moreover, some forty states recognize the Genocide, and the federal government has never opposed such recognition.
Defendants also argued that the law was preempted under field preemption. But the majority ruled that California's law is a valid regulation of the insurance industry, citing Am. Ins. Assoc. v. Garamendi, and its effect on foreign affairs is merely incidental, at most.
Judge Thompson wrote in dissent that the law "clearly conflicts with . . . express federal policy" against recognizing the Armenian Genocide, as evidenced by President Clinton's and President Bush's opposition to three House Resolutions to formally recognize the Genocide. Op. at 19662-3. As to field preemption, he wrote that the law interferes with the federal government's "primar[y], if not exclusiv[e]" authority over foreign affairs, citing Zschernig v. Miller and Hines v. Davidowitz.
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].
Friday, November 19, 2010
State legislators from 27 states today filed an amicus brief supporting the federal government in the State of Florida's challenge to federal health care reform now in the Northern District of Florida. Some of the states represented have filed their own cases against the federal government. We posted on the case here and here.
The legislators focus on federalism. They argue first that federal health care reform does not violate principles of federalism, because it offers policy choices (and not requirements, in violation of the anti-commandeering rule) for the states at each turn. For example: States have discretion to form their own insurance exchange, or to join with other states in a regional exchange, or to allow the federal government to administer a state-wide exchange; states have discretion in tailoring the health care plans to be provided through the exchange; and states can apply for a waiver to set up their own program, with or without a minimum coverage provision, or with a public option. "This allows for the diversity and innovation that is the hallmark of the States." Brief at 6.
The legislators also take on opposition to expanded coverage in Medicaid. (Federal health care reform expands Medicaid eligibility to individuals under 65 with incomes below 133% of the federal poverty line.) The legislators argue that Medicaid is and always has been a voluntary federal-state partnership and a classic example of federal conditioned spending (meeting the requirements of South Dakota v. Dole). They argue that grumblings from Texas this week about opting out of Medicaid prove their point: States can opt out of the new requirements if they like--and thus there is no coercion or commandeering involved.
The Constitutional Accountability Center filed the brief on behalf of the legislators.
Wednesday, November 10, 2010
Judge Vicki Miles-LaGrange of the Western District of Oklahoma yesterday issued her Temporary Restraining Order, enjoining the State from certifying the election results for State Question 755, the state ballot question that would amend the Oklahoma Constitution to ban state courts from considering Sharia law.
Judge Miles-LaGrange's order was expected. She issued a Minute Sheet to the same effect earlier this week.
The 9-page Order concludes that plaintiff Muneer Awad is likely to succeed on his Establishment Clause and Free Exercise Clause claims for reasons argued by Awad. As to the Establishment Clause, Judge Miles-LaGrange wrote that the ballot measure did not have a secular purpose, that its primary purpose inhibits religion, and that it fosters an excessive government entanglement with religion. As to the Free Exercise Clause:
[T]he Court finds that plaintiff has made a preliminary showing that State Question 755's amendment is not facially neutral, discriminates against a specific religious belief, and prohibits conduct because it is undertaken for religious reasons. Additionally, the Court finds that plaintiff has made a preliminary showing that State Question 755's amendment is neither justified by any compelling interest nor narrowly tailored.
Judge Miles-LaGrange also ruled that Awad had standing, and that the case was ripe for review. She ordered the TRO in effect until the scheduled hearing on the preliminary injunction, Monday, November 22.
Meanwhile, two Con Law Profs weighed in. Prof. Ali Khan (Washburn) takes a strong stand against the measure, arguing that it would affect everything from Muslim prisoners' rights to halal food to state court interpretation of international business contracts based on Sharia law to marriages under Sharia law. Prof. Marci Hamilton (Cardozo) argues that it may be a non-issue, because courts can't use religious law, anyway:
It may look anti-Muslim, but no other religious group has a right to have their religious doctrine determine secular law. On this reading, it is just a restatement of the rule of law.
November 10, 2010 in Comparative Constitutionalism, Courts and Judging, Elections and Voting, Establishment Clause, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Religion, State Constitutional Law, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)
Monday, November 8, 2010
Judge Vicki Miles-LaGrange of the Western District of Oklahoma today issued a temporary restraining order preventing the State of Oklahoma from implementing its new constitutional amendment that would ban the use of Sharia law in Oklahoma courts. The court released a Minute Sheet without significant analysis; Judge Miles-LaGrange indicated that she'd release an Order soon.
We posted on the case, brought by Muneer Awad, ED for the advocacy group the Council on American-Islamic Relations, here.
The constitutional amendment, passed by a 70%-30% vote in last Tuesday's election, would prohibit Oklahoma courts from "look[ing] to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law."
The Minute Sheet also concludes that Awad has standing. He claims that the amendment would stigmatize him as a Muslim and prevent him from enforcing his will, which references Sharia law, in Oklahoma state courts.
November 8, 2010 in Comparative Constitutionalism, Courts and Judging, Elections and Voting, Establishment Clause, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Religion, State Constitutional Law, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)
Friday, November 5, 2010
Muneer Awad, Executive Director of the Council on American-Islamic Relations, filed for a temporary restraining order and preliminary injunction seeking to stop the State of Oklahoma from certifying state ballot question 755 and implementing the new anti-Sharia constitutional amendment. CAIR's press release is here.
The [Oklahoma courts], when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. . . .
The measure passed by 70% to 30% in Tuesday's election.
Awad and CAIR argue that the provision violates both the Establishment Clause (under the Lemon test) and the Free Exercise Clause (under either strict scrutiny or rational basis review). In short, they argue that the State's targeting of Sharia law will stigmatize Awad based on his faith and prevent him from enforcing his will (which references Sharia law) in Oklahoma state courts. As to the Establishment Clause, they argue that the measure violates all three parts of the Lemon test: that it does not have a secular purpose, that its primary effect advances and inhibits religion, and that it fosters an excessive government entanglement with religion. As to Free Exercise, they argue that the State doesn't even have a legitimate purpose in banning the use of Sharia law, except the bare desire to harm a politically unpopular group. This is not enough to sustain the measure against Awad's challenge. Cleburne v. Cleburne Living Center; Romer v. Evans.
November 5, 2010 in Comparative Constitutionalism, Courts and Judging, Elections and Voting, Establishment Clause, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Religion, State Constitutional Law, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)
Thursday, September 9, 2010
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.
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."