Wednesday, June 19, 2013

Arizona Voter Registration Case: No Pyrrhic Victory for the Feds

In response to Monday's ruling in Arizona v. InterTribal Council of Arizona, Inc., striking Arizona's requirement that voters show proof of citizenship above and beyond the oath of citizenship on the standard federal voter registration form, there's a debate about whether the case is a pyrrhic victory for the federal government.  Our most recent post on the case, with links to earlier posts, is here.

On one side, Mary Lederman argued over at SCOTUSblog that the case, for all its talk of federal supremacy over how federal elections are held, probably curtails federal authority over who may vote in them.  That's because Justice Scalia, writing for the Court, carefully reserved the power to determine who may vote in federal elections to the states.  Lederman seized on Justice Scalia's line that the Elections Clause "empowers Congress to regulate how federal elections are held, but not who may vote in them" and argued that this principle puts in jeopardy current and possible future federal legislation requiring states to register certain persons to vote.  For example, he argued that the ruling threatens the Uniformed and Overseas Citizens Absentee Voting Act, UOCAVA, which requires a state to register for federal electiosn any person who resides outside the United States but would otherwise be qualified to vote in that state; any congressional restriction on state felon disenfrachisement laws; and even federal law upheld under Oregon v. Mitchell.  Rick Hasen made a similar point at The Daily Beast, followed up with a post on his own Election Law Blog.

On the other side, David Gans over at the Text and History blog at the Constitutional Accountability Center, argued that Lederman's argument "misses the enduring significance of Justice Scalia's sweeping reaffirmation that the Constitution gives Congress very broad powers to protect the right to vote in federal elections . . . ."  Gans and others seized on Justice Scalia's repeated and very strong language affirming federal authority under the Elections Clause--its "paramount power," without a presumption against preemption--to set the rules of the "Times, Places, and Manner" of congressional elections.

So who's right?

Both, it turns out--with an important caveat.  The ruling gives Congress broad authority under the Elections Clause to regulate the "Times, Places, and Manner" of congressional elections, including prescribing a federal form, using an oath on that form as evidence of citizenship, and requiring states to petition federal authorities (the EAC) to add a proof-of-citizenship requirement on that form (or to sue to get the EAC to add the requirement).  That's the core holding of the case--that the NVRA, with the prescribed federal form, including the oath, is a valid regulation of the "Times, Places, and Manner" of congressional elections that preempts contrary state law.

But the NVRA and the federal form spill over into the state-controlled power to determine who gets to vote, because they regulate the manner of determining an important qualification for voters, citizenship.  The Court said that to the extent that a federal law spills over and regulates voter qualification like this, the states must have an opportunity to petition federal authorities and ultimately to sue (under the Administrative Procedures Act) to enforce their own state voter eligibility requirements.  

So even under the Elections Clause, the case stands for vast federal authority--authority to set the "Times, Places, and Manner" of congressional election in a way that absolutely preempts state law, and more: to set those standards even when they spill over into regulation of who gets to vote, so long as the states have an opportunity--under a very loose standard--to preserve their power to set voter qualifications through administrative petitioning and APA action.  (Note that this administrative petitioning, by the Court's own reckoning, is informal and casual.  Note further that APA review is deferential.  Between the two, the principle puts the inertia behind federal regulation that spills over into regulation of voter qualification.)  

While the Court articulated these rules in the case--that is, that the feds have the absolute power over how to vote, while the states have the power over who gets to vote--even perhaps more clearly than it has in the past, it's not obvious that this breaks any new ground.  In particular, it's not obvious that it breaks any new ground reducing the power of the federal government or enhancing the powers of the states.  Indeed, if anything, the core holding of the case only underscores the vast power of the federal government at the expense of the states.  (While Justice Scalia's line dividing power between the feds and the states may eventually prove to be a "time bomb" (Hasen's phrase), the principal, driving holding of the case reaffirms federal authority.)

So here's the caveat: the Court said all this only with respect to the Elections Clause, but of course made no ruling on any other federal authority to regulate voter qualifications.  Thus the Court left in place vast federal power under the Fourteenth and Fifteenth Amendments, and left untouched the constitutional rights to travel and to vote.  Those authorities and rights, and others, might well support federal authority to enact the UOCAVA and maybe even to restrict certain state felon disenfrachisement laws.  If so, Monday's ruling doesn't do anything to those actual and potential federal laws.  

Moreoer, Monday's ruling does nothing to the federal laws upheld under Oregon v. Mitchell, or otherwise to undermine whatever holdings came out of that case.  (Justice Scalia's footnote 8 does nothing to the vitality or legitimacy of Mitchell, say what you will about the footnote or about Mitchell itself.)  Lederman argues that those laws might not withstand scrutiny under the Court's current approach to congressional enforcement power under the Reconstruction Amendments.  But, if so, that's a function of City of Boerne, not Monday's ruling.  Moreover, some or all of the laws upheld under Mitchell might well be upheld under different authorities.  As we know, the Court itself split sharply on the sources of authority in that case, suggesting that those laws might enjoy support under other authorities, not subject to the Elections Clause constraint that states have the power to determine who gets to vote.  

In short, Monday's ruling is a clear victory for federal authority under the Elections Clause, with a reservation of qualified state authority to determine who gets to vote in congressional elections even when Congress regulates the "Times, Places, and Manner" of congressional elections in a way that spills over into voter qualifications.  (Why "qualified state authority"?  Because the Court upheld a federal law that set a standard for voter eligibility, based on the oath on the federal form, so long as the states can petition the EAC and bring an action to court to supplement the oath if they can show that the oath is insufficient.  This putting-the-burden-on-the-state when the federal government prescribes a way to determine eligibility is a thumb on the scale in favor of federal power.  At the very least, it's an extremely unusual way to preserve and protect state power.)  But the ruling does nothing to other constitutional powers that Congress might use to validly enact federal law, and to preempt state law, regarding voter qualifications.  

SDS

June 19, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Travel | Permalink | Comments (0) | TrackBack (0)

Saturday, May 25, 2013

District Judge Finds Sheriff Joe Arpaio's Office Engaged in Unconstitutional Racial Profiling

Screen Shot 2013-05-25 at 9.45.41 AMIn a 142 page opinion and order in Melendres v. Arpaio, United States District Judge G. Murray Snow found that the Maricopa County Sheriff's Office [MCSO] led by Sheriff Arpaio unconstitutionally relied upon "Mexican ancestry" in stopping and detaining persons in its jurisdiction.

Recall that Sheriff Arpaio is a controversial figure who has styled himself as America's "toughest sheriff" and whose policies such as shackling pregnant inmates giving birth and forcing male inmates to "wear pink" have been subject to constitutional challenge.

In the Melendres class action lawsuit, the district judge listed the issues as:

  • whether, and to what extent, the Fourth Amendment permits the MCSO to question, investigate, and/or detain Latino occupants of motor vehicles it suspects of being in the country without authorization when it has no basis to bring state charges against such persons;
  • whether the MCSO uses race as a factor, and, if so, to what extent it is permissible under the Fourth Amendment to use race as a factor in forming either reasonable suspicion or probable cause to detain a person for being present without authorization;
  •  whether the MCSO uses race as a factor, and if so, to what extent it is permissible under the equal protection clause of the Fourteenth Amendment to use race as a factor in making law enforcement decisions that affect Latino occupants of motor vehicles in Maricopa County;
  •  whether the MCSO prolongs traffic stops to investigate the status of vehicle occupants beyond the time permitted by the Fourth Amendment; and
  • whether being in this country without authorization provides sufficient reasonable suspicion or probable cause under the Fourth Amendment that a person is violating or conspiring to violate Arizona law related to immigration status.

The judge's extensive discussion of the trial and his findings of fact provide a detailed portrait of the MCSO's attempts to enforce immigration laws, including  its "LEAR" policy (Law Enforcement Agency Response in conjunction with federal immigration authorities), "saturation patrols,"  and mixed messages about the permissibility of the consideration of race or "Mexican ancestry." The opinion details the often rocky relationship between MCSO and federal ICE regarding immigration enforcement. 

Ultimately, Judge Snow concluded that that the MCSO's stated prohibition of "racial profiling" was limited to an exclusive reliance on race but allowed race to be a factor and did not strive to be race-neutral.  In keeping with this policy, the MCSO routinely relied upon race as a factor according to Judge Snow.  Such policies and practices violate both the Fourth Amendment and the Equal protection Clause of the Fourteenth Amendment.

The Judge entered a permanent injunction prohibiting MCSO from:

  • detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization,
  •  following or enforcing its LEAR policy against any Latino occupant of a vehicle in Maricopa County;
  •  using race or Latino ancestry as a factor in determining to stop any vehicle in Maricopa County with a Latino occupant;
  • using race or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle in Maricopa County may be in the country without authorization;
  • detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law;
  •  detaining, holding or arresting Latino occupants of a vehicle in Maricopa County for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present;
  • detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.

Judge Snow encouraged the parties to engage in further negotiations toward a settlement for implementing the injunction and included references to other settlements.  However, Sheriff Arpaio has reportedly already proclaimed his intention to appeal.

RR

 

May 25, 2013 in Equal Protection, Federalism, Fourteenth Amendment, Fourth Amendment, Opinion Analysis, Race, Travel | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 30, 2011

Mark Twain and Constitutional Law

It's the 176th anniversary of the birth of Mark Twain, an anniversary that while not a usual celebratory number (100, 150, or even 175) has been attracting some attention.   

Mark Twain has also received a bit of attention from the United States Supreme Court in constitutional law cases.

New_York_World_-_TwainPerhaps most obviously the pseudonymous Mark Twain appears in the context of the First Amendment right to be anonymous.  In McIntyre v. Ohio Elections Committee (1995), the Court held unconstitutional a state statute prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature.  Ms. McIntyre had distributed leaflets from “CONCERNED PARENTS AND TAX PAYERS” opposing a proposed school tax levy and was fined.  The Court's opinion by Justice Stevens noted that "Great works of literature have frequently been produced by authors writing under assumed names."  The supporting footnote first lists "Mark Twain (Samuel Langhorne Clemens)" as an American who first comes to mind, followed by O. Henry (William Sydney Porter), and expanded with reference to writers such as Voltaire, and even making a brief foray into the status of Shakespeare, a controversy now appearing in theatres.

Other references to Twain support Twain's reputation as an eminently quotable writer.  William Douglas, dissenting in a First Amendment case regarding the notorious Smith Act, deploys a Twain quote as the opening salvo:

When we allow petitioner to be sentenced to prison for six years for being a ‘member’ of the Communist Party, we make a sharp break with traditional concepts of First Amendment rights and make serious Mark Twain's lighthearted comment that ‘It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either of them.

Scales v. United States (1961) quoting Twain, Following the Equator (1903).   And Justice Harlan, dissenting in the reapportionment case of Whitcomb v. Chavis (1971), discusses the mathematical and theoretical models regarding vote dilution and includes as the entirety of a footnote this: " 'There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact.’ Mark Twain, Life on the Mississippi 109 (Harper & Row., 1965)."

The most recent constitutional law citation to Twain is not to one of Twain's pithy aphorisms, but to a simple observation in the nature of a travelogue.  Justice Stevens, once again uses Twain in his opinion for the Court, but this time in the text rather than a footnote:

The relevant facts are undisputed. . . .  All agree that Lake Tahoe is “uniquely beautiful,”  that President Clinton was right to call it a “ ‘national treasure that must be protected and preserved,’ ”  and that Mark Twain aptly described the clarity of its waters as “ ‘not merely transparent, but dazzlingly, brilliantly so’  [citations omitted].

The case is Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), quoting Mark Twain, Roughing It 174-175 (1872),in which the Court rejected a takings clause challenge to a moratorium on building in the area surrounding Lake Tahoe. 

RR
[image via]

November 30, 2011 in Cases and Case Materials, First Amendment, History, Speech, Travel | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 28, 2011

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

UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.

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

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

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

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

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

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

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

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

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

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

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

RR

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

Thursday, March 10, 2011

CFP: Secrecy, National Security, and the Vindication of Constitutional Law

For a Conference in Milan, Italy on December 1-2, 2011, with proposals due April 24, 2011.

In virtually every nation, assertions of the need for secrecy on matters of counterterrorism policy and practice have created tensions with efforts to ensure transparency, accountability and procedural fairness. The conference is open to proposals that seek to bring comparative analysis to bear on how best to mediate these tensions, including:

 

  • the challenge of secrecy to democratic lawmaking on counterterrorism policy;
  • the use of “secrecy” privileges to block litigation challenging allegedly illegal government
  • programs;
  • the use of classified evidence against individuals or organizations to freeze their assets, designate them as terrorist, or justify other restraints on their liberty;
  • the use of “anonymous” witnesses who testify without revealing their identity;
  • the closure of criminal trials and other proceedings to the public;
  •  and the adoption of secret coercive programs without transparent legal justification, such as the US’s coercive interrogation practices or targeted killing program.

One of the covenors is David Cole of Georgetown; more information and submission details here.

RR

March 10, 2011 in Comparative Constitutionalism, Conferences, Criminal Procedure, Executive Authority, Privacy, Scholarship, Travel | Permalink | Comments (0) | TrackBack (0)

Friday, July 30, 2010

The Inconsistent Tenth Amendment?

That was the original title of this Op-Ed, published in the Los Angeles Times today here.


  411px-US_Passport

 


RR

July 30, 2010 in Current Affairs, Federalism, History, Interpretation, News, Race, Recent Cases, Sexual Orientation, Theory, Travel | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 29, 2010

Cert Granted in Arizona Employer Sanction of Hiring of Undocumented Workers

The Court granted certiorari yesterday in Chamber of Commerce of the United States v. Candelaria, a case challenging the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens."

Caillebotteraboteurs

The Ninth Circuit upheld the statute, affirming the district judge, noting that the statute had yet to be enforced, and observing that the challenge

is brought against a blank factual background of enforcement and outside the context of any particular case. If and when the statute is enforced, and
the factual background is developed, other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision.

In its discussion of the preemption challenge, the Ninth Circuit opinion reads like an excellent discussion of the doctrine, first distinguishing express and implied preemption, and then discussing the two categories of implied preemption: field preemption and conflict preemption.  The Ninth Circuit applied each of these doctrines to find that the state law is not preempted, even when the state law mandates the use of E-Verify when federal law arguably intended that its use be voluntary.  The Ninth Circuit also addressed the employers' due process arguments, finding that the state act provided sufficient process for employers to prevent evidence regarding an employee's status.

The Solicitor General's brief "filed in response to the Court’s order inviting the Solicitor General to express the views of the United States," advocated that the "petition for a writ of certiorari should 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.”

As Kevin Johnson over at Immigration Law Prof argues:

The decision by the Court on the scope of federal preemption of state immigration laws will likely have a significant impact on the outcome of the litigation challenging Arizona Senate Bill 1070, which has provoked a firestorm of controversy.  My speculation is that the controversy helped convince the Justices to grant cert and to offer guidance on the room, if any, for state and local governments to attempt to regulate immigration and immigrants.

Certainly, there will be more discussion about Chamber of Commerce of the United States v. Candelaria.

RR

image: "The Floor Scrapers" by Gustave Caillebotte, 1875, [typo in year corrected! thanks!], via.

June 29, 2010 in Cases and Case Materials, Current Affairs, Federalism, Preemption, Travel | Permalink | Comments (3) | 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 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, November 24, 2009

Holiday Travel?: Time to Catch Up on Some Constitutional "Listening"

When was the last time you listened to a reading of The United States Constitution? 

642px-Schedel'sche_Weltchronik-Large_ears If you can't recall, and you are one of the 38.4 million people traveling by car in the US over the Thanksgiving holiday,  perhaps your trip might be the perfect time to hear the Constitution read aloud. 

Or if not the Constitution, what about the Articles of Confederation?  Or the Declaration of Independence?

If your travel-time is extended, you might be interested in the 21 hours of The Federalist Papers - - -  or the 19 hours of The Anti-Federalist Papers.  Or perhaps A Treatise of Human Nature by David Hume (almost 14 hours) or John Locke’s Two Treatises on Civil Government (11 hours). 

What about Aristotle’s Politics?  Plato’s Republic?  Alexis de Tocqueville's Democracy in America (both volumes)?  Or Discourse on the Origin and Basis of Inequality Among Men, by Jean-Jacques Rousseau,  available in both English and French?

All of these and more are available for free download on LibriVox.  With its motto of "acoustical liberation of books in the public domain,"  the site provides a wide range of materials.  Browsing is possible, but somewhat cumbersome.   If you cannot find your favorite classic, LibriVox accepts volunteer readers.

RR

November 24, 2009 in Books, History, Travel | Permalink | Comments (0) | TrackBack (0)

Friday, October 23, 2009

Of Marriage, Monopolies, and Federalism

Do the states have a marriage monopoly?

Picture 2

That's the intriguing question posed by Adam Candeub and Mae Kuykendall, of Michigan State University College of Law, in their new article,  E-Marriage: Breaking the Marriage Monopoly.

They argue:

States inadvertently have created geographic monopolies, requiring each marriage receiving the benefits of their licensing laws to be performed within their borders. This Article's model builds upon established precedents, such as proxy marriage and choice of law for multi-jurisdictional and internet contracts. Using the power of internet communications, our proposal allows states to compete over marriage's procedures and substance. Depending on a couple's preferences for "e-ritual" and a state's desired level of regulatory control, couples could consume the trappings of a traditional ceremony before their friends and family, without travelling to another jurisdiction, perhaps with an officiant presiding on-line from a remote location. More simply, couples could have a complete marriage ceremony in the location of their choice, but would receive a license and file necessary papers with a distant state jurisdiction.

They are publicizing their proposal with a press release here and article soon to be posted on ssrn here (abstract available now).


RR

October 23, 2009 in Dormant Commerce Clause, Family, Federalism, Scholarship, Sexuality, State Constitutional Law, Travel | Permalink | Comments (0) | TrackBack (0)