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)

Wednesday, May 27, 2009

Court Rejects State's Limits on Federal Civil Rights Suits

A sharply divided Supreme Court ruled yesterday that New York's efforts to limit prisoners' federal civil rights claims in New York state courts violated the Supremacy Clause.

New York moved to restrict prisoner-rights claims in New York state courts under 42 U.S.C. Sec. 1983 in order to curb what it deemed "frivolous and vexatious" suits against state correctional officers.  (Section 1983, a Reconstruction-era statute, authorizes civil suits against state officers for violations of federal constitutional rights in the scope of their employment.  Plaintiffs can file in federal courts or in state courts of general jurisdiction.)  Thus the state stripped its courts of jurisdiction over Section 1983 claims by prisoners against correction officers.  (The state also stripped its courts of jurisdiction under a state statute that, like Section 1983, authorized civil suits against state officers for violations of constitutional rights.)  But the state granted jurisdiction over these claims to a state court of limited jurisdiction, the Court of Claims, with a 90-day notice requirement, no entitlement to a jury trial, no right to attorney's fees, and no punitive damages or injunctive relief. 

The New York law thus severely restricted prisoner-rights claims in state courts under Section 1983.  (Prisoners, of course, could still file a Section 1983 claim in federal court.)

Justice Stevens (for himself and Justices Kennedy, Souter, Ginsburg, and Breyer) ruled that the New York law violated the Supremacy Clause.  Stevens wrote that while "states retain substantial leeway to establish the contours of their judicial systems, they lack authority to nullify a federal right or cause of action they believe is inconsistent with their local policies."  Slip Op. at 6.  Because New York's law "operates more as an immunity-from-damages provision than as a jurisdictional rule," Slip Op. at 7, n. 5, it's not a "neutral state rule regarding the administration of the courts"--an exception to the "presumption of concurrency" between federal and state law under Howlett v. Rose (1990).  Slip Op. at 6.

Moreover, the law was not "neutral," even though it divested state courts of jurisdiction over both state and federal law authorizing prisoner constitutional rights suits, because it targeted only a "particular species of suits--those seeking damages relief against correction officers."  Slip Op. at 10. Stevens for the Court:

We therefore hold that, having made the decision to create courts of general jurisdiction that regularly sit to entertain analogous suits, New York is not at liberty to shut the courthouse door to federal claims that it considers at odds with its local policy.  A State's authority to organize its courts, while considerable, remains subject to the strictures of the Constitution.

Slip Op. at 11.

In dissent, Justice Thomas (for himself, Chief Justice Roberts, and Justices Scalia and Alito) argued that the Court's cases didn't support the non-discriminatory requirement in the Court's definition of "neutral" and that states had plenty of authority and room to issue neutral rules of administration for their own courts.  (Roberts, Scalia, and Alito joined only a narrow part of Thomas's much broader opinion, part of which focused on the original intent of Article III.)

The case is a victory for federal civil rights claimants in state courts.  It means that states that seek to limit access to their courts for federal constitutional rights claimants face a higher bar--one that New York's efforts failed to satisfy--and that states can't try to side-step their way around federal civil rights law by disguising an immunity provision as a jurisdictional rule, even as states retain substantial authority to organize their own courts.

SDS

May 27, 2009 in Federalism, Recent Cases, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 25, 2009

Marbury v Madison - more on

Another new book on Marbury v. Madison, The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court by Cliff Sloan & David McKean.

9781586484262

Here’s a bit from the Kirkus Review:

"Former Supreme Court clerk and Slate publisher Sloan and veteran political aide McKean bring to life one of the most important legal cases in American history.... Sloan and McKean supply Marbury's historical context and unravel the complex fabric of personalities, politics and law that animated the case.... The authors' enthusiasm and clear prose vivify the contention that, as Marshall said, 'It is emphatically the province and duty of the judicial department to say what the law is.' A crisp, color examination of the case that established the formidable power of the federal judiciary."

Cliff Sloan also made a brief appearance on the Colbert show last night (February 24) to talk about the book and Marbury v. Madison.  The short video might be good for class use and is available here.  In the segment, Colbert remarks that judicial review is not in the Constitution and that the Court gave itself the power, calling Marshall the original activist judge. 

RR

February 25, 2009 in Jurisdiction of Federal Courts, Scholarship, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Thursday, December 4, 2008

NY's Bar on 1983 Actions and the Supremacy Clause

The Supreme Court heard oral arguments this week in Haywood v. Drown.  At issue:  Whether New York's ban on section 1983 damage actions against state correctional officers in state court violates the Supremacy Clause.

A good part of the oral argument focused on whether the NY ban--Correction Law section 24--was "jurisdictional" and a "neutral state rule regarding the administration of the courts."  The language comes from Howlett v. Rose, a 1990 Supreme Court case that the lower court cited in support of this:  "One permissible exception" that allows states to deny enforcement of a federal right is "when a state court lacks jurisdiction due to a 'neutral state rule regarding the administration of the courts.'"

Is section 24 such a rule?  Yes, says the state: It is a jurisdictional limitation based on the state's neutral desire to limit "vexatious" litigation.  No, says the plaintiff:  It carves out this special exception for correctional officers, treating them differently than all others for 1983 purposes, and reflects the state's substantive disagreement with the remedies under 1983.

The law professors' amicus is quite good; take a look at the excellent discussion of the Supremacy Clause and argument III on this jurisdictional question.  Here's the respondents' brief; and here's the oral argument transcript.

SDS

December 4, 2008 in Federalism, Recent Cases, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Monday, October 20, 2008

Backdoor Preemption by Administrative Regulation?

The Wall Street Journal reported last week that Bush administration officials "are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states."

At issue is the practice of administrative agencies writing preemption clauses into proposed regulations, sometimes at OMB's behest, even though authorizing legislation does not contain a preemption provision.  According to the WSJ, former administration domestic policy adviser Jay Lefkowitz said that the administration decided not to press its preemption agenda in Congress, because it might lose.  It apparently has decided to take matters into its own hands.

The administration has argued that the clauses are evidence of federal preemption of plaintiffs' state tort claims, as long as defendants comply with federal law, thus undermining plaintiffs' claims--and protecting corporate defendants--in areas where the federal government regulates. 

The Trial Lawyers Association (now the American Association for Justice) was quite critical in its report, after undercovering evidence of the practice through FOIA requests.  The Chamber of Commerce's Institute for Legal Reform has been supportive of administration preemption efforts.

The Court may weigh in next month in Wyeth v. Levine, a case involving the federal preemptive effects of the Federal Food, Drug, and Cosmetic Act's labelling requirements.  The FDA's preemption clause plays a bit role in briefing on the larger conflict preemption issue, but the administration's amicus brief addresses it squarely in Argument C.2., running from page 26 to page 27 (of the brief, not of the pdf file).  The administration writes:

In the preamble to a January 2006 rule concerning the labeling of drugs, FDA explained that the government's "long-standing view[]" is that "FDA approval of labeling under the [FDCA] * * * preempts conflicting or contrary State law," especially considering that "FDA interprets the [FDCA] to establish both a 'floor' and a 'ceiling'" for labeling.  71 Fed. Reg. at 3934, 3935. 

SDS

October 20, 2008 in News, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)