Monday, June 25, 2012

Supreme Court's Split Decision on Arizona's SB1070

The Supreme Court issued its much-anticipated opinion in Arizona v. United States on the constitutionality of controversial state immigration statute SB 1070. The over all issue, recall, is whether the state law is preempted by the federal statutory immigration law and thus invalid under the Constitution's Supremacy Clause, Article VI.

800px-Immigration_Reform_Leaders_Arrested_4The majority - - - Justices Kennedy, Roberts, Ginsburg, Breyer, and Sotomayor - - - affirmed in part and reversed in part the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of SB 1070.  

The Courthad granted the petition for writ of certiorari on four provisions:

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

The majority held that Sections 3, 5(C), and 6 of S. B. 1070 are preempted by federal law, but that the controversial 2(B) was not.

On Section 3, the Court applied complete field preemption, holding that even complementary state regulation unconstitutionally intrudes.

On Section 5(C) and 6, the Court held that the state provisions operated as obstacles to the federal statutory scheme.

Upholding Section 2, the Court essentially held that without state courts having an opportunity to further construe the provision, the record was too incomplete to determine whether or not the provision conflicted with federal law.  

Justices Scalia, Thomas, and Alito each wrote separate dissents.  Justice Elana Kagan did not participate. 



The Opinion of the Court is relatively brief at 25 pages.  For an opinion by Justice Kennedy (dare I say), it is unusually well-structured.  The discussion of pre-emption principles is setting out express preemption, then pervasive field preemption and conflict (obstacle) preemption, including the Court's most recent preemption opinion, Whiting, which it will later distinguish (and which was joked about as decisively precedential by Justice Roberts at oral argument, who interestingly joins Kennedy's opinion). 

Then it considers each provision, providing some but not overwhelming detail, regarding the conflict.  Most controversially (and lengthily), the Court reversed the Ninth Circuit’s conclusion that Section 2(B) was preempted, focusing both on the mandatory status checks (– colloquially known as the “show me your papers” provision – ) and the possibility of prolonged detention.   However, the majority stated that Section 2(b) could be read to avoid the concerns of conflict and offered some hypos:

To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. [citations omitted].

To take another example, a person might be held pend­ing release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the cir­cumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention.

For some, these "could be read" passages suggest that only upon a narrow construction would Section 2(B) be upheld.

 Not surprisingly dissenting, Justice Scalia would have upheld SB1070, and stressed the historical precedent that would allow states as sovereigns to exclude all aliens from their states.  His use of history here will most likely be criticized by some legal historians of the Early Republic. In a statement sure to provoke more controversy, he referred to President Obama’s statement regarding young non-citizens, saying “The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra­ tion’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforc­ing applications of the Immigration Act that the President declines to enforce boggles the mind.”  He closed by repeating Paul Clement’s claim that “Arizona bears the brunt of the country’s illegal immigration problem.”

Thomas' briefly opined that even "assuming the existence of some tension" between SB1070 and the federal scheme, it did not merit preemption.  Alito's much longer opinion agreed with the Court that 2(B) was not preempted, and interestingly agreed that Section 3 (colloquially known as the carry your papers provision) was preempted. He "part[ed] ways" on §5(C) and §6, arguing that Congress was not sufficiently clear on its desire to preempt a provision regarding employment and that §6 "adds virtually nothing to the authority that Arizona law enforcement officers already exercise."


image via

June 25, 2012 in Opinion Analysis, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 12, 2012

Waiting for SCOTUS

In mid-June, the Supreme Court watching & waiting gets serious.  The Court currently has only two scheduled "Non-Argument" days on its June calendar to announce opinions, June 18 and 25, although it could add more. 

[UPDATE: On June 14, the Court added Thursday, June 21, to its calendar].

Certainly, the health care reform cases on the constitutionality of the ACA, argued over several days (March 26, March 27, and March 28)  are the most anticipated, but there are at least three other not-yet-decided opinions that are much anticipated and involve controversial constitutional issues.

Supreme Court Interior
In January, the Court heard oral arguments in  FCC v. Fox presenting the Court again with the First Amendment problems of "fleeting expletives" and "fleeting nudity" in a regulated media context, although the precise issue is more muddled than not.  Fox (represented by Carte G. Phillips) focused on the "fleeting expletive" sanction based on Cher's statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli).  The Justices - - - sans Sotomayor who did not participate - - - did seem reluctant to honor the respondents' request to overrule  FCC v. Pacifica Foundation (1978) (the "seven dirty words" case), yet also seemed uncertain to what extent the case survived into the current proliferation of media. 

In February, the Supreme Court heard oral arguments in  another First Amendment case, United States v. Alvarez, the so-called "Stolen Valor" case.  The Ninth Circuit, in a divided opinion, held a provision of the act unconstitutional: 18 U.S.C. § 704(b), criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item."    A few weeks before oral argument, the Tenth Circuit, in a divided opinion, upheld the provision. 

In late April, the Court heard oral arguments in Arizona v. United States involving the constitutionality of several provisions of Arizona's notorious SB 1070 that the DOJ argues are pre-empted by federal law as the lower courts held.  These include requiring every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully; criminalizing the failure to carry an “alien registration document;'" criminalizing undocumented immigrants applying for employment or being employed; and authorizing warrantless arrests if based upon probable cause that a person has committed a deportable crime.  Several commentators suggested that Justice Scalia's remarks at oral argument were other than judicial.

While it is not always true that opinions rendered late in the term are the most divisive and complex, the conventional wisdom supports this perception, especially if the oral arguments were earlier in the Term.

[image of Supreme Court courtroom via]

June 12, 2012 in Cases and Case Materials, Current Affairs, Federalism, First Amendment, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, April 28, 2012

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

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

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

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

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

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

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

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

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

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

[image: Justice Scalia at speaking engagement via]

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

Wednesday, April 25, 2012

Oral Argument in Arizona v. United States

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

These four provisions at issue are:

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JUSTICE SCALIA: Sounds like racial profiling to me.

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

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

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

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

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


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

The analogy was never completed. 

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


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

Tuesday, April 24, 2012

Preview of Oral Arguments in Arizona v. United States

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

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

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

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

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


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

Friday, April 20, 2012

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

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

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

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

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

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

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

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

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

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

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

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


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

Thursday, February 23, 2012

Medicaid Providers' Supremacy Clause Case Goes Back to Ninth Circuit

A sharply divided Supreme Court yesterday remanded Douglas v. Independent Living Center of Southern California, Inc. to the Ninth Circuit to determine whether the plaintiffs' case on the Supremacy Clause can move forward in light of the federal government's post-oral argument approval of defendant-California's reductions in its Medicaid plan.  We previewed the oral argument here.

Douglas is a suit by California Medicaid providers and recipients against California for its changes to its Medicaid program.  The plaintiffs argued that the changes violated federal Medicaid requirements and were therefore unconstitutional under the Supremacy Clause.

But soon after the Court heard oral argument in the case, the federal government approved California's changes.  The parties agreed that this did not moot the case, however.  (The plaintiffs still maintained that the state changes violated federal Medicaid requirements, even if the federal government disagreed.)  So the question became: Can Medicaid providers and recipients sue the state under the Supremacy Clause, even after the federal government approved the state's Medicaid changes?

Justice Breyer, writing for a 5-justice majority, including Justices Kennedy, Ginsburg, Sotomayor, and Kagan, sent the case back to the Ninth Circuit for resolution of this question.  He wrote that the parties didn't brief the issue at the Court, and that the Court wouldn't call for reargument on this question.  Instead, the case goes back to the Ninth Circuit.

Cheif Justice Roberts wrote in dissent for himself and Justices Scalia, Thomas, and Alito.  He said that nature of the Supremacy Clause, along with the Medicaid Act itself, means that the plaintiffs don't have a Supremacy Clause case.  He pointed to the fact that the Medicaid Act itself doesn't provide a cause of action for its enforcement, and the Supremacy Clause can't step in to provide one.  "That is not a proper role for the Supremacy Clause, which simply ensures that the rule established by Congress controls [over conflicting state law]."

Plaintiffs in the case have a cause of action against the federal government under the Administrative Procedures Act for its final approval of the California Medicaid changes, even if they don't have a cause of action against California under the Medicaid Act.  If the Ninth Circuit rules that they have a cause of action against California under the Supremacy Clause, the plaintiffs may have an election between the APA claim against the federal government and the Supremacy Clause claim against the state.

In short, this case isn't over.  In fact, it looks like it's just beginning.


February 23, 2012 in Cases and Case Materials, Federalism, News, Opinion Analysis, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 8, 2011

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

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

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

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

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

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

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


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

Tuesday, November 1, 2011

DOJ Files Complaint Against South Carolina Immigration Law

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

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

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

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



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

Saturday, October 22, 2011

Counterclaims of Governor Brewer and Arizona in SB1070 Litigation Dismissed

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

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

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

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

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

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

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

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

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.


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

Thursday, September 29, 2011

Argument Preview: Standing to Challenge Medicaid Cuts in Douglas

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Wednesday, September 28, 2011

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


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

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

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

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

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

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

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

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

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

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

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


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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Op. at 84, citations omitted].

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

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

[image via]


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

Monday, 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)

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)

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.


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

Thursday, January 6, 2011

State Lawmakers Take on Birthright Citizenship

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.


January 6, 2011 in Courts and Judging, Federalism, Fourteenth Amendment, Fundamental Rights, News, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)