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.

RR

[image via]

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.

SDS

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

Thursday, December 16, 2010

Ninth Circuit Upholds State Armenian Genocide Victim Protection

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.

SDS

December 16, 2010 in Federalism, Foreign Affairs, News, Opinion Analysis, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 8, 2010

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

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

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

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

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

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

Max_Liebermann_Canning_factory
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.

RR

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

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

Friday, November 19, 2010

State Legislators' Amicus Supports Federal Health Care Reform

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.

SDS

November 19, 2010 in Congressional Authority, Federalism, News, Recent Cases, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 10, 2010

Federal Judge Issues TRO in Oklahoma's Anti-Sharia Case

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.

SDS

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

Federal Court Blocks Oklahoma's Anti-Sharia Con Amendment

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.

SDS

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

Group Sues to Stop Oklahoma's Anti-Sharia Constitutional Amendment

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.

As we mentioned previously, Oklahoma's state ballot question 755 would amend the state constitution to ban the use of Sharia law in Oklahoma courts.  It reads in relevant part:

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.

SDS

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

Third Circuit Declares Hazelton Immigration Ordinances Unconstitutional

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

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

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

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

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

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

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

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

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

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

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

RR

[image via]

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

Wednesday, July 28, 2010

Federal Court Issues Preliminary Injunction for Parts of Arizona Immigration Statute SB 1070

Federal District Judge Susan Bolton has issued her opinion enjoining the enforcement of certain sections of Arizona SB 1070 including:

  • Portion of Section 2 of S.B. 1070, codified as A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person
  • Section 3 of S.B. 1070, codified as A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers
  • Portion of Section 5 of S.B. 1070, codified as A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work
  • Section 6 of S.B. 1070, codified as A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States

Judge Bolton's opinion considers the statutory provisions separately, noting that the statutory scheme is not singular and that the statute provides for severability.  The opinion found that the Government demonstrated a likelihood of success on the merits in its arguments for the unconstitutionality of the above provisions, applying preemption doctrine under the supremacy clause.  (We've previously discussed the filing of the DOJ complaint here and the preemption arguments here).

Arizona Immigration Law SB1070Regarding the irreparable harm requirement, the Judge reasoned the Federal Government would suffer irreparable harm "because the federal government’s ability to enforce its policies and achieve its objectives will be undermined by the state’s enforcement of statutes that interfere with federal law, even if the Court were to conclude that the state statutes have substantially the same goals as federal law."  (Opinion at 34). 

On the balance of equities, the judge concluded they weighed in favor of preserving the status quo:

The Court by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime including the trafficking of humans, drugs, guns, and money. Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws. The Court therefore finds that preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced.

(Opinion at 35, citations omitted).

The controversial Arizona statute, scheduled to go into effect July 29, 2010, will thus become effective without the above provisions.

RR

[Update: For a terrific analysis of the Judge's opinion, listen to an interview with Professor Jenny Rivera on NPR here]

[image: SB1070 protest via]

July 28, 2010 in Federalism, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Immigration Laws Passed by States: Information Available

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

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

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

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

RR

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

Tuesday, July 6, 2010

DOJ Files Complaint Against Arizona SB 1070 Alleging Statute Unconstitutional: Analysis

Azdhometitle4 As anticipated, the Department of Justice has filed a complaint in Arizona federal court seeking a declaration and injunction that Arizona SB 1070, the controversial statute signed into law April 23 regarding immigration is unconstitutional.  The DOJ complaint has three causes of action: the supremacy clause, preemption, and the [dormant] commerce clause.  

With the complaint, the DOJ has filed a motion for preliminary injunction and supporting memorandum [available here].  The DOJ memo concentrates on the preemption argument as the basis for the likelihood to prevail on the merits prong of the preliminary injunction standard.  (We've previously discussed the preemption arguments here).  The DOJ argues different types of preemption, including field and conflict:

In enacting a state policy of “attrition through enforcement,” Arizona’s S.B. 1070 ignores every objective of the federal immigration system, save one: the immediate apprehension and criminal sanction of all unlawfully present aliens. See S.B. 1070 § 1. Arizona’s one-size-fits-all approach to immigration policy and enforcement undermines the federal government’s ability to balance the variety of objectives inherent in the federal immigration system, including the federal government’s focus on the most dangerous aliens. By requiring local police officers to engage in maximum inquiry and verification (on pain of civil suit) and by providing for the conviction and incarceration of certain foreign nationals in Arizona for their failure to register, for entering or traveling throughout the state using commercial transportation, or for soliciting work, the “balance” struck by S.B. 1070 is not only different from that of the federal government, but it will interfere with the federal government’s ability to administer and enforce the immigration laws in a manner consistent with the aforementioned concerns that are reflected in the INA. Despite the statute’s self serving claim that it “shall be implemented in a manner consistent with federal laws regulating immigration,” S.B. 1070 § 12, the act mandates a conflicting, Arizona-specific immigration policy – “attrition through enforcement” – and prescribes various provisions that implement that policy in conflict with federal priorities. To permit a hodgepodge of state immigration policies, such as the one Arizona has attempted in S.B. 1070, would impermissibly interfere with the federal government’s balance of uniquely national interests and priorities in a number of ways.

DOJ Memo at 23 (emphasis added).  Additionally, the memo argues that the state law interferes with United States foreign relations and foreign affairs.

The memo also highlights specific provisions of SB 1070 that it argues are preempted. The memo argues sections 2 and 6 are preempted because their mandatory requirements for determining immigration status conflict with federal law and priorities: section 2 will result in the harassment of lawfully present aliens and is therefore at odds with congressional objectives and will "burden federal resources and impede federal enforcement and policy priorities;” section 6 extends Arizona’s “warrantless arrest authority to out-of-state ‘removable’ offenses and is preempted because it will lead to the harassment of aliens.”  Section 3, the “complete or carry an alien registration document” provision is preempted because interferes with comprehensive federal alien registration law and “seeks to criminalize unlawful presence and will result in the harassment of aliens.”  Section 4, amending Arizona’s alien smuggling statute is preempted because it conflicts with federal law.  Section 5, the state criminal sanction against unauthorized aliens who solicit or perform work is preempted by the federal employer sanctions scheme, and the “transporting, harboring, or concealing provision” violates preemption and dormant commerce clause principles (the item of commerce in question being the “alien” him or herself). 

This high-profile complaint joins the other lawsuits filed alleging the unconstitutionality of SB1070, including on equal protection grounds.

{Update: Arizona immigration statute partially enjoined; here}

RR

July 6, 2010 in Commerce Clause, Current Affairs, Dormant Commerce Clause, Federalism, Foreign Affairs, Fundamental Rights, News, Preemption, Race, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 4, 2010

Justice O'Connor on Arizona Immigration Law SB 1070

Arizona may have gone a little too far. 

Immigration is the province of the federal rather than state government.

Racial profiling may be a problem.

These are the sentiments of retired Justice Sandra Day O'Connor on Arizona Immigration Law SB 1070 (our most recent discussion here).  O'Connor's remarks are reported by WSJ  and SFGate (SF Chronicle) from a Q&A today at the private high school in San Francisco from which her husband graduated. 

SandraOconnor_and_GeorgeWBush_May2004

(photo: Sandra Day O'Connor with her husband, John O’Connor and President George W. Bush, May 2004 in the Oval Office; courtesy wikimedia)

RR

May 4, 2010 in Current Affairs, Equal Protection, Preemption, Race, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Saturday, May 1, 2010

Proposed Amendments to Arizona Immigration Law SB 1070

The Arizona House of Representatives has proposed amendments to the controversial Arizona Immigration Law SB 1070 signed just last week.

Arizona HB 2162 (NOW: immigration; border security) would amend SB 1070 as follows:

  • Changes “lawful contact” to “lawful stop, detention or arrest.” Picture 6  
  • Stipulates that a lawful stop, detention or arrest must be in the enforcement of any other law or ordinance of a county, city or town or this state.
  • Stipulates that a reasonable attempt must be made, when practicable, to determine the immigration status of a person, except if the determination may hinder or obstruct an investigation when reasonable suspicion exists that the person is an alien and is unlawfully present in the U.S.
  • Removes “solely” from the provision relating the prohibition on discriminatory enforcement.
  • Stipulates that for the Enforcement of Immigration Law, Unlawfully Picking up Passengers for Work and Unlawfully Transporting or Harboring Unlawful Aliens the immigration status may be determined by:
  •  A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.
  •  ICE or CBP pursuant to 8 U.S.C. § 1373(c).
  •  Specifies that 8 U.S.C § 1373 and 8 U.S.C § 1644 are included in the federal immigration laws relating to challenges regarding policies adopted or implemented by an entity.
  • Stipulates that for the enforcement of Willful Failure to Complete or Carry an Alien Registration Document, Unlawfully Picking up Passengers for Work and Unlawfully Transporting or Harboring Unlawful Aliens a law enforcement official or agency cannot consider race, color or national origin when implementing these provisions, except as permitted by the U.S. or Arizona Constitution.

The proposed amendments address some of the equal protection and fourth amendment challenges in the complaints filed in federal district court which we discussed here and here, but do not substantially change the preemption arguments also made in the complaint which we discussed here.  Our original post is here with update here.

Arizona Republic story on the proposal here.

{Update: Arizona immigration statute partially enjoined; here}

RR

May 1, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, International, News, Preemption, Race, Supremacy Clause, Travel | Permalink | Comments (9) | TrackBack (0)

Friday, April 30, 2010

Constitutional Challenges to Arizona Immigration Law SB 1070

Two more complaints have been filed in federal courts challenging the constitutionality of Arizona Immigration Law SB 1070.   In addition to the complaint filed by the Tucson police officer Martin Escobar we discussed previously, Phoenix police officer David Salgado has filed a complaint with similar allegations and arguments.

The more lengthy complaint filed by National Coalition of Latino Clergy and Christian Leaders (CONLAMIC) is filed as a class action of "all persons who currently reside in Arizona and find themselves to be negatively affected by the proposed unconstitutional law." (para 51).   The claims of unconstitutionality include substantive due process under the Fourteenth Amendment, violations of the Supremacy Clause; First Amendment; and violations of the Fourth Amendment and procedural due process. 

Other constitutional arguments are being put forward in a nonjudicial forum, spearheaded by Professor Ediberto Roman:

 Immigration and Constitutional Law Experts Against SB 1070

The undersigned law professors, immigration experts, and interested organizations write this petition requesting the Governor and the Legislature of the State of Arizona to repeal SB 1070, or in the alternative, calling upon Congress to conduct hearings on Arizona’s ultra vires act of authorizing local police to enforce federal immigration laws without an express delegation from Congress. The petitioners also urge President Obama to direct the Justice Department Civil Rights Division to mobilize quickly to educate the public how to report civil rights violations associated with SB 1070. With the passage of SB 1070, the state of Arizona has ignored legal precedent striking down similar state encroachments on federal supremacy relating to immigration. Moreover, courts have held similar encroachments to be violative of Due Process and Equal Protection.

  [remainder of statement and more information here]

{Update: Arizona immigration statute partially enjoined; here}

RR

April 30, 2010 in Cases and Case Materials, Current Affairs, Federalism, Fourteenth Amendment, Fundamental Rights, News, Preemption, Procedural Due Process, Race, Reconstruction Era Amendments, Supremacy Clause | Permalink | Comments (3) | TrackBack (0)

Friday, April 23, 2010

Arizona Immigration Law SB 1070

The "Support Our Law Enforcement and Safe Neighborhoods Act," Arizona SB1070, just [update here; update on proposed change here] signed by Governor Jan Brewer, is the "toughest" anti-immigration state law in the United States.

Constitutional challenges are sure to follow. [update here; DEPARTMENT OF JUSTICE lawsuit analysis update here].  UPDATE: PORTIONS OF STATUTE ENJOINED BY FEDERAL DISTRICT JUDGE.

State laws seeking to regulate immigration status are always subject to preemption challenges given the federal government's plenary power over immigration and nationality.  Moreover, equal protection challenges to immigration regulations by states will be scrutinized more carefully by the courts than regulations by the federal government.  A good overview of these issues is by Juliet Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, available on ssrn here.

Beinecke_map

The new Arizona law allows state officials to inquire into the immigration status of any person based upon "reasonable suspicion":

For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

The statute also prohibits localities from adopting any policies that allow less than full enforcement of the immigration laws, thus prohibiting so-called sanctuary provisions.

Additionally, section 13-1509 provides that a person is guilty of the crime of trespassing if the person is both:  "present on any public or private land in this state" and in violation of federal immigration statutes.  The statute further provides that there is no eligibility for "suspension or commutation of sentence or release on any basis until the sentence imposed is served."

The statute also has an anti-solicitation of workers (often called day laborers) provision of the type that has been held unconstitutional under the First Amendment, see Town of Herndon v. Thomas, MI-2007-644 (Va. Cir. Ct. Aug. 29, 2007) Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 475 F. Supp. 2d 952, 962 (C.D. Cal. 2006).

The statute has already garnered some critical commentary from our colleagues on Immigration Law Prof.  MALDEF has issued a statement that it will challenge the statute.  The United States Department of Justice will reportedly examine the constitutionality of the statute as instructed by President Obama.

RR

April 23, 2010 in Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, News, Preemption, Race, Supremacy Clause, Travel | Permalink | Comments (134) | TrackBack (0)

Tuesday, March 23, 2010

Constitutional Challenge to Health Care Mandate: Complaint

 Within ten minutes of President Obama’s signing of the Patient Protection and Affordable Care Act, available as large download here, thirteen states through their state attorney generals filed a complaint in the Northern District of Florida, Pensacola Division, challenging the constitutionality of the statute. SUDO000Z

The states - - - Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, and South Dakota - - -  contend that the Act “greatly alters the federal-state relationship, to the detriment of the states, with respect to Medicaid programs specifically and healthcare coverage generally” (para 39).  

Count One, entitled “Unconstitutional Exercise of Federal Power and Violation of The Tenth Amendment (Const. Art. I & Amend. X)”  alleges both that the Act exceeds Congressional power under Art I sec 8; the “taxing and Spending Clause”; or “any other provision of the Constitution” (para 56), and that the Act violates the Tenth Amendment.

Count Two, entitled “Violation of Constitutional Prohibition of Unapportioned Capitation or Direct Tax
(Const. Art. I, §§ 2, 9)” alleges that the tax penalty on uninsured persons “constitutes a capitation and a direct tax that is not apportioned among the states.”

Count Three, entitled “Unconstitutional Mandate That All Individuals Have Health Insurance Coverage Or Pay Tax Penalty (Const. Art. I & Amend. X)”  alleges:
The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans. Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce, whether interstate or otherwise. As a result, the Act cannot be upheld under the Commerce Clause, Const. art. I, § 8. The Act infringes upon Plaintiffs’ interests in protecting the freedom, public health, and welfare of their citizens and their state fiscs, by coercing many persons to enroll in Medicaid at a substantial cost to Plaintiffs; and denies Plaintiffs their sovereign ability to confer rights upon their citizens and residents to make healthcare decisions without government interference, including the decision not to participate in any healthcare insurance program or scheme, in violation of the Tenth Amendment (para 65).

The fourth and final count seeks declaratory judgment based on the previous allegations.

For pedagogical purposes, the Complaint could be used as an in class exercise in a Constitutional Law course, perhaps using some of the materials available from the Federalist Society here to write a memo in support of the complaint, as well our previous discussions here and here.  It might also be useful for a Constitutional Litigation seminar to engage in a redrafting of the Complaint or a drafting of an Answer.

RR

March 23, 2010 in Commerce Clause, Congressional Authority, Current Affairs, Federalism, Medical Decisions, News, Supremacy Clause, Teaching Tips, Tenth Amendment | Permalink | Comments (3) | TrackBack (0)

Sunday, March 14, 2010

Daylight Savings Time as Unconstitutional?

With all the current discussions of states' rights and federal power, the federally mandated change to "daylight savings time" at 2am this Sunday morning may require a constitutional discussion.

Under the Uniform Time Act of 1966, states may exempt themselves from daylight savings time, however federal law preempts state choice regarding different dates of changing from daylight savings time:

(b) State laws superseded

It is hereby declared that it is the express intent of Congress by this section to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for advances in time or changeover dates different from those specified in this section.

729px-Milano-castello01 Congress passed the Energy Policy Act of 2005 and lengthened daylight savings time in section 110 (amending the Uniform Time Act of 1966  by striking "first Sunday of April'' and inserting "second Sunday of March''; and by striking "last Sunday of October'' and inserting "first Sunday of November"). 

However, because of the express preemption and the Supremacy Clause, states that had been perfectly happy with the previous routine of April/November had little recourse but to change to March/October.

John K Wilson has an amusing and provocative column over at Daily Kos on the constitutionality of Daylight Savings time ("It’s a typical Big Government program: steal an hour from us in March, give back our hour to us in November, and expect us to be grateful for getting back our own property").

RR

March 14, 2010 in Federalism, History, News, Preemption, Supremacy Clause | Permalink | Comments (4) | TrackBack (0)

Friday, December 4, 2009

"State Sovereignty" and the Health Insurance Mandate

NPR's Morning Edition this morning reported on state movements to sidestep any health insurance mandate that might come out of the health care overhaul now before Congress.  (We previously reported on these here.)  These are state constitutional and state statutory measures that say that individuals shall not be required to purchase health insurance.

If Congress has authority to enact an individual health insurance mandate, these state measure run up against the Supremacy Clause: They are almost surely unconstitutional, as conflicting directly with the federal requirement.

But advocates of the measures nevertheless claim that they interfere with "state sovereignty."  As one advocate in the last line of this morning's story said, "No Supreme Court has ever been more sympathetic to state sovereignty than the current Court."

Whether that's right or not, it almost surely would not affect the Supremacy Clause analysis (unless the Court were willing to undo well settled Supremacy Clause principles).  So what does it mean?

One possible answer: A mandate's interference with "state sovereignty" means that Congress lacks authority under the Commerce Clause and Necessary and Proper Clause to enact a mandate in the first place.  This interpretation might draw support from U.S. v. Lopez (holding that Congress lacked authority under the Commerce Clause to enact the Gun Free School Zone Act) and U.S. v. Morrison (holding that Congress lacked authority under the Commerce Clause to enact the civil damages provision of the Violence Against Women Act).  The majority in both of those cases referred to the slippery slope that might result if Congress had authority to enact those laws: "Congress could regulate any activity that it found was related to the economic productivity of individual citizens . . . .  Under the[se] theories . . . it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign."  But neither case turned on this slippery slope, and the interference with traditionally state regulated activities alone is surely not enough to render congressional action unconstitutional.  See Gonzales v. Raich (upholding a federal drug possession law).

State sovereignty claims aside, some (including some commentators on this blog) have argued that Congress lacks authority under the Commerce Clause to impose a mandate, because not having health care (the activity regulated) is not a commercial activity.  Stated differently: Congress can restrain or regulate economic activity; but it cannot require economic activity.

This argument makes two mistakes.  First, it distinguishes a restriction (a regulation) with a requirement (as non-regulation), and, relatedly, it distinguishes action (as economic activity) with non-action (as non-economic activity).  It's not at all clear that the courts view "economic activity" this way.  For example, the Eighth Circuit in U.S. v. Howell, 552 F.3d 709 (2009) recently upheld a federal provision requiring former sex offenders to register as sex offenders under the Commerce Clause.  That court rejected the criminal defendant's argument that Congress lacked authority to regulate non-action under the Commerce Clause.  Similarly, the Second Circuit in U.S. v. Sage, 92 F. 3d 101 (1996), upheld a federal law criminalizing the failure to pay past child support obligations.  The Sage court addressed the question squarely:

Sage argues that the Act is not within the Commerce Clause power and thus invalid on its face because it concerns not the sending of money interstate but the failure to send money.

Such reasoning would mean that Congress would have no power to prohibit a monopoly so complete as to thwart all other interstate commerce in a line of trade.  Yet the Sherman Act . . . is within the Commerce Clause power. . . . To accept Sage's reasoning would disable the United States from punishing under the Hobbs Act . . . making it a crime to "obstruct" interstate commerce, someone who successfully prevented the interstate trade by extortion and murder.  There would be no trade to obstruct.

Sage at 105 (citations omitted).  These cases might be distinguished because they only require activity that is already required under state law, or because they require limits to economic activity.  But they--and Howell--also suggest that the courts do not draw the sharp line between restrictions and requirements, actions and non-actions, that this argument assumes.

And with good reason.  In the health care context, an election not to purchase health insurance is every bit an economic activity as an election to purchase.  It's those significant interstate economic costs associated with individuals' elections not to purchase that in some measure sparked the health care debate in the first place.  Not purchasing, in this context, is an economic activity.

But the argument makes a second mistake.  The Supreme Court has never required only "economic activity" as a subject of regulation under the Commerce Clause.  In Lopez, Morrison, and Raich, the Court was quite clear that Congress can regulate activity that has a substantial effect on interstate commerce (in addition to the channels and instrumentalities of interstate commerce).  Decisions not to purchase health insurance, "economic" or not, surely have such a substantial effect--again, it's that effect that's driving much of the movement for reform.

Whatever the merits of the policy arguments against an individual mandate, these Commerce Clause arguments based on "state sovereignty" and lack of economic activity do not render them unconstitutional.

SDS

December 4, 2009 in Commerce Clause, Congressional Authority, News, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Saturday, June 13, 2009

The Constitutionality of State and Local Laws Targeting Immigrants: Saturday Evening Review

What power do state and local governments have to regulate or enforce laws relating to immigration?  This question is a recurring one, even as the federal government attempts immigration reform.

In her new article, The Constitutionality of State and Local Laws Targeting Immigrants,
available on ssrn here and forthcoming in University of Arkansas Little Rock Law Review, Professor Karla Mari McKanders of University of Tennessee (photo below), argues that

The practice of employing state and municipal laws to exclude immigrants should be discontinued. . . . . If states and localities are permitted to enact immigration laws, our country will have fifty  different iterations of pro- and anti- immigrant laws.  This will also cause state and local governments across the country to compete with each other to see who can pass laws to exclude immigrants from their states, so they will not have to address any issues that come along with migration and integrating immigrants into their communities.  This will essentially result in a downward spiral of states with laws that exclude (a race to the bottom) as states and localities attempt to enact laws which result in immigrants relocating or self-deporting.

McKanders analyzes the various (and contrary) federal decisions, noting that the federal courts take two main positions: (1) when states act pursuant to their police powers, state laws that affect immigration are not per se preempted; and (2) the INA establishes a comprehensive scheme that preempts state and local laws that target or affect immigrants.   She concentrates on  Chicanos Por La Causa, Inc. v. Napolitano,  544 F.3d 976 (9th Cir. 2008), and Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 540-41 (M.D. Pa. 2007), but also discusses the important Eleventh Circuit case Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027 (11th Cir. 2008), as well as several others.   

McKanders

This paper was prepared for a Symposium at University of Arkansas-Little Rock on “cause lawyering,” which the law review defined as   “any activity that seeks to use law-related means or seeks to change law or regulations to achieve greater social justice—both for a particular individual and for disadvantaged groups.”  The Symposium further focused on "immigrants and the Gay, Lesbian, Bisexual, and Transgender communities."

Professor McKanders was doubtlessly invited because of her excellent previous piece, Welcome to Hazleton! 'Illegal' Immigrants Beware: Local Immigration Ordinances and What the Federal Government Must Do About It, available on ssrn here and in Loyola University Chicago Law Journal. If you are teaching or working in this specific area, or on preemption more generally, McKanders' articles are definitely worth a close read.

RR


June 13, 2009 in Federalism, Preemption, Scholarship, Supremacy Clause, Theory | Permalink | Comments (1) | TrackBack (0)