Constitutional Law Prof Blog

Full Seventh Circuit Keeps Challenge to State Sex Offender Registration Alive

Steven D. Schwinn, University of Illinois Chicago School of Law

The full Seventh Circuit today rebuffed certain constitutional challenges to Indiana's Sex-Offender Registration Act (SORA) as applied to pre-Act offenders required to register in another state. At the same time, however, the court remanded an equal protection claim for further consideration.

The ruling means that the plaintiffs still have a live challenge to the Act. And, given the court's remand instruction and the lower court's earlier ruling, it's likely a winning one.

The case, Hope v. Commissioner of Indiana Department of Correction, tests Indiana's SORA as applied to pre-act offenders who were required to register in another state before SORA's enactment. That matters, because the Indiana Supreme Court interpreted the Act not to require Indiana pre-Act offenders to register. (It said that requiring registration would violate the state constitution's Ex Post Facto Clause.) So Indiana's SORA requires pre-Act offenders to register if they were required to register in another state before SORA. But it doesn't require pre-Act offenders to register if they had no pending out-of-state registration requirement.

Offenders with an out-of-state requirement sued, arguing that the Act, as interpreted by the state supreme court, violated their right to travel, the federal Ex Post Facto Clause, and equal protection. The district court ruled in the plaintiffs' favor on all claims, and a panel of the Seventh Circuit affirmed on the right to travel claim. The full court reversed.

The court ruled that the scheme didn't violate the right to travel under the Fourteenth Amendment Privileges or Immunities Clause--"for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state." That's "because it does not expressly discriminate based on residency, as consistently required by the Supreme Court." Instead, the court said that while the Act "may affect newer residents disproportionately,"

[a]s a statutory matter, SORA obligates all offenders--both old and new residents--to register based on prior convictions. Indiana's Ex Post Facto Clause then relieves a subset of those who must register from that statutory obligation. Receiving the clause's benefits, though, does not depend on when an offender became an Indiana resident but on whether one is subject to an existing registration requirements. That requirement can come from Indiana, or from another state. The twist in this case is that for those offenders like the plaintiffs, convicted before Indiana's SORA covered their crimes, such a registration obligation must come from elsewhere.

(The dissent argued that this different treatment--based solely on whether a pre-Act offender has traveled to another state or not--is the model of infringing on the right to travel.)

The court next ruled that SORA didn't violate the federal Ex Post Facto Clause, because the registration requirement isn't punitive.

But the court remanded the question whether SORA violated the Equal Protection Clause under rational basis review--and all but invited the district court to rule in favor of the plaintiffs. The court wrote,

The plaintiffs may still challenge Indiana's application of SORA to them because it treats them differently than similarly situated Indiana offenders. SORA, as modified by the Indiana Supreme Court's constitutional overlay, creates two classes of pre-SORA offenders--those who must register in Indiana, and those who are free from that requirement. Indiana distinguishes between the two groups based solely on whether the pre-SORA offender had a registration obligation in another state. For example: two lifelong Indiana residents, both with pre-SORA convictions, will be treated differently if one commutes into Chicago for work--and so is subject to Illinois's reporting requirements--while the other never leaves Indiana. The distinction holds true for offenders who attend school in another state or who have lived in another state imposing registration obligations on them. In short, two similarly situated Indiana offenders may have vastly different legal obligations simply because one of them has an out-of-state registration obligation.

The court instructed the lower court to apply rational basis review to this distinction, and cautioned that it "should be undertaken with care" and "thorough[] develop[ment of] the factual record." It said that "[r]ational basis review favors the State but does not ensure an automatic win."

SCOTUS to Hear Trump v. Hawai'i on Travel Ban 3.0

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court has granted the Trump Administration's petition for certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of  September 24, 2017, also known as Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act. 

The United States Supreme Court will also be considering the Establishment Clause issue. Recall that the Ninth Circuit did not reach the Establishment Clause issue. However, the United States Supreme Court's grant of certiorari states that the parties are directed to brief and argue Question 3 presented by the opposition brief of Hawai'i.  That question presented is simply phrased: "Whether Proclamation 9645 violates the Establishment Clause."

Recall that the United States Supreme Court previously granted certiorari in Hawai'i v. Trump, as well as IRAP v. Trump from the Fourth Circuit regarding Travel Ban 2.0, but then remanded the cases to be dismissed as moot when that Executive Order was replaced by the current incarnation.

One important issue in the Establishment Clause litigation is whether the travel ban "targets" a particular religion. Somewhat similarly, an important issue under the Immigration and Nationality Act is whether the travel ban constitutes "nationality discrimination."

These issues have involved consideration of whether the "taint" of statements from candidate Trump and President Trump during the earliest days of the Administration would continue to be viable to this third iteration of the travel ban. It is also likely that much more recent statements allegedly made by the President regarding immigration will be raised.

 

 

 

Seventh Circuit Rules Against Territorial Plaintiffs in Absentee-Voting-Rights Case

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit ruled that former Illinoisans who now live in Puerto Rico, Guam, and the Virgin Islands lacked standing to challenge the federal Uniformed and Overseas Citizens Absentee Voting Act and lost on the merits in their claims against Illinois after the state rejected their requests for absentee-voter ballots.

The ruling means that former Illinoisans who reside in these territories won't receive an absentee-voter ballot from the state, unless Illinois changes its law.

The plaintiffs, former residents of Illinois but now residents of the territories, sued when Illinois denied them absentee-voter ballots for federal elections in Illinois. They claimed that the UOCAVA and Illinois law defined their territories as part of the United States and thus prohibited them from getting absentee ballots as overseas voters. They claimed that this violated equal protection and their right to travel.

The Seventh Circuit ruled that the plaintiffs didn't even have standing to challenge the UOCAVA. That's because while the UOCAVA defines "the United States" to include these territories, it doesn't prohibit Illinois from providing absentee ballots to the plaintiffs. Illinois law does that. As a result, the court said that the plaintiffs couldn't challenge the federal law, although they could still challenge state law.

As to state law, the court said that Illinois's classification didn't violate equal protection and its denial of absentee ballots didn't violate the right to travel. The court said that the plaintiffs have no fundamental right to vote in federal elections--"absent a constitutional amendment, only residents of the 50 States have the right to vote in federal elections"--and no claim to heightened scrutiny. The court held that Illinois's distinction between Puerto Rico, Guam, and the Virgin Islands (on the one hand) and the Northern Marianas and American Samoa (on the other, where former Illinoisans can get an absentee ballot) passed rational basis review, because at the time that Illinois enacted the distinction, "these two territories were . . . more similar to foreign nations than were the incorporated territories where the plaintiffs reside." (The court said it was OK to look at the state's justification at the time of the distinction, in 1979, instead of now, because "even if . . . the Northern Marianas and American Samoa became more integrated into the United States, it would not help the plaintiffs [who are] injured specifically because Illinois defines their resident territories as within the United States.")

The court summarily rejected the plaintiffs' right-to-travel argument as "borderline frivolous."

Fourth Circuit En Banc Upholds Injunction Against President's "Travel Ban"

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in International Refugee Assistance Project (IRAP)  v. Trump, heard by the en banc court without an intervening panel decision, the court affirmed in almost every respect Maryland District Judge Theodore Chuang's Opinion and nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."  The court heard oral argument on May 8. 

The court's opinion finding that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order was authored by Chief Judge Roger Gregory with six other judges joining in full in the almost 80 page opinion.  Additional opinions bring the total opinion pages to over 200: three other judges concurred in separate opinions;  Three judges dissented in separate opinions (with the dissenters joining each of the dissenting opinions). Recall that two other judges recused. 

On the merits of the Establishment Clause claim as applied to an Executive Order involving immigration, Judge Gregory's opinion for the court agreed with the United States that the deferential standard in Kleindienst v. Mandel (1972) is the appropriate starting point but disagreed with the government that it ended the inquiry.  Instead, "Mandel's requirement that an immigration action be 'bona fide' may in some instances compel more searching judicial review."  The court found that while the national security interest was facially legitimate, the plaintiffs made a requisite showing that it was provided in "bad faith."

Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting “territories” instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor’s statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1. [citations to record omitted].  Plaintiffs also point to the comparably weak evidence that EO-2 is meant to address national security interests, including the exclusion of national security agencies from the decisionmaking process, the post hoc nature of the national security rationale, and evidence from DHS that EO-2 would not operate to diminish the threat of potential terrorist activity.

Having cleared the hurdle of Mandel, the court then considered the application of the Establishment Clause test articulated in Lemon v. Kurtzman, noting that "in the context of this case, there is an obvious symmetry between Mandel's "bona fide" prong and the constitutional inquiry establishment in Lemon. Both tests ask courts to evaluate the government's purpose for acting."

Thus, Judge Gregory's opinion analyzed some of the same material regarding the EO's bona fide quality to determine whether the EO had a primary secular government purpose as required under Lemon's first prong.  But the analysis the court conducted under Lemon was much more detailed.  The court relied upon McCreary County v. ACLU of Kentucky (2005), in which the United States Supreme Court concluded that a judge's initial removal of his posting of the Ten Commandments in the courthouse was not cured by his subsequent posting of the biblical text surrounded by other texts.  In McCreary, the Court articulated the correct viewpoint as the "reasonable objective observer" who should take into account the traditional external signs but should not perform judicial psychoanalysis. 

It is this portion of the opinion (Part IVA2; pages 54-70 in text) regarding the purpose of EO-2 that is central.  The court finds there is a "compelling case" that EO-2's "primary purpose is religious."  It begins by discussing the candidate's campaign statements, later rejecting the argument that these statements should be subject to a "bright-line rule" that they should not be considered.  Instead, the court states that the "campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action." 

Just as the reasonable observer’s “world is not made brand new every morning,” McCreary,  nor are we able to awake without the vivid memory of these statements. We cannot shut our eyes to such evidence when it stares us in the face, for “there’s none so blind as they that won’t see.” Jonathan Swift, Polite Conversation 174 (Chiswick Press ed., 1892). If and when future courts are confronted with campaign or other statements proffered as evidence of governmental purpose, those courts must similarly determine, on a case-by-case basis, whether such statements are probative evidence of governmental purpose. Our holding today neither limits nor expands their review.

Moreover, the court considered the by now familiar statements by spokespeople: advisor and former mayor Rudolph Guiliani on EO-1; Senior Policy Advisor Miller and White House Press Secretary Spicer on EO-2.  The court further found that the government's argument that EO-2's primary purpose was national security rather than religious

is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, J.A. 397, and that those agencies only offered a national security rationale after EO-1 was enjoined. Furthermore, internal reports from DHS contradict this national security rationale, with one report stating that “most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.” According to former National Security Officials, Section 2(c) serves “no legitimate national security purpose,” given that “not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years” and that there is no evidence of any new security risks emanating from these countries. Corrected Brief for Former National Security Officials as Amici Curiae Supporting Appellees 5–8, ECF No. 126-1. Like the district court, we think this strong evidence that any national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a “litigating position” than as the actual purpose of EO-2. See McCreary, 545 U.S. at 871 (describing the government’s “new statements of purpose . . . as a litigating position” where they were offered to explain the third iteration of a previously enjoined religious display). And EO-2’s text does little to bolster any national security rationale: the only examples it provides of immigrants born abroad and convicted of terrorism-related crimes in the United States include two Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered the United States as a child and was radicalized here as an adult. EO-2, § 1(h). The Government’s asserted national security purpose is therefore no more convincing as applied to EO-2 than it was to EO-1.

In short, the court found that EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it," and thus EO-2 "likely fails Lemon's purpose prong" and is unconstitutional under the Establishment Clause.

The court affirmed the preliminary injunction as appropriately nationwide, but did agree with the government that the injunction should not be issued "against the President himself."  Thus, the injunction was lifted in that regard, although the court noted that while the President was not directly bound, the court assumes "it is substantially likely" that the President would abide by the the court's authoritative interpretation of section 2 of EO-2.

Recall that a Ninth Circuit panel is also considering the constitutionality of EO-2; it heard oral arguments on May 15 in Hawai'i v. Trump.

Virginia District Judge Upholds Muslim Travel Ban 2.0

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion in Sarsour v. Trump, United States District Judge for the Eastern District of Virginia Anthony Trenga denied the Plaintiffs' motion for Temporary Restraining Order or Preliminary Injunction.

At issue is the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." 

Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," was enjoined by the Ninth Circuit in Washington v. Trump,; our backgrounder on the issues is here.  The President withdrew the initial EO and the Ninth Circuit denied the sua sponte motion for en banc review, but in a somewhat unusual step there was a substantive dissenting opinion authored by Judge Jay Bybee.

Recall also that regarding the March 6, 2017 EO ("Muslim Travel Ban 2.0"), two other federal district judges issued injunctions before the EO became effective.  In Hawai'i v. Trump, United States District Judge Derrick Watson issued a TRO of sections 2 and 6 of the EO based on the likelihood of plaintiffs to prevail on their Establishment Clause challenge.  In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a preliminary injunction of section 2(e) of the EO based on the likelihood of plaintiffs to prevail on their statutory claim under the Immigration and Nationality Act and their constitutional claim under the Establishment Clause.Judge Trenga disagrees with both Hawai'i v. Trump and IRAP v. Trump, although the opinion does not engage in a substantial dialogue with these opinions. 

Linda Sarsour, plaintiff via

For example, on the statutory claim in Sarsour v. Trump, Judge Trenga concludes after reviewing "the text and structure of the INA as a whole, and specifically, the practical, operational relationships" of the provisions, that the nondiscrimination restrictions of §1152 do not "apply to the issuance or denial of non-immigrant visas or entry under §1182(f).  In a footnote, Judge Trenga acknowledges that the judge in IRAP v. Trump "attempted to reconcile these seemingly contradictory provisions," and simply adds, "There, the court concluded that Section 1152 bars the President from discriminating on the basis of nationality in the issuance of immigrant visas only." (footnote 12).  Judge Trenga characterized the Immigration and Nationality Act (INA) as a "legislative rabbit warren that is not easily navigated," but his ultimate conclusion seems to be based on a broad view of Executive authority. Judge Trenga writes that the he "also has substantial doubts that Section 1152 can be reasonably read to impose any restrictions on the President’s exercise of his authority under Sections 1182(f) or 1185(a)."

Similarly, on the Establishment Clause claim Judge Trenga accorded the Executive broad deference.  Unlike the judges in both Hawai'i v. Trump and IRAP v. Trump, Judge Trenga found that the facial neutrality of "EO-2" was determinative.  Judge Trenga held that past statements - - - or the EO-2 statements (described in a footnote as including the President's statement that EO-2 was a "watered-down version" of EO-1, and Presidential Advisor Stephen Miller's statements) - - - have not "effectively disqualified him from exercising his lawful presidential authority":

In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose. To proceed otherwise would thrust this Court into the realm of “‘look[ing] behind’ the president’s national security judgments . . . result[ing] in a trial de novo of the president’s national security determinations,” Aziz, 2017 WL 580855, at *8, and would require “a psychoanalysis of a drafter’s heart of hearts,” all within the context of extending Establishment Clause jurisprudence to national security judgments in an unprecedented way.

Likewise, on the Equal Protection claim, Judge Trenga concluded that although the EO would have a differential impact on Muslims, it was facially neutral.  The Judge relied on an earlier Fourth Circuit case, Rajah v. Mukasy (2008) and articulated the standard as requiring merely a rational national security basis for an immigration measure to survive an Equal Protection Clause challenge.  And again, Judge Trenga accorded the Executive wide discretion: "These are judgments committed to the political branches - - - not to the courts."

In sum, Judge Trenga's opinion aligns with the Ninth Circuit dissent from en banc review by Judge Bybee and is in opposition to the other district judges who have rendered opinions on the second EO which have enjoined its enforcement.  

DC Circuit Upholds Federal Employment Application Limited to DC Area

Professor Ruthann Robson, City University of New York (CUNY) School of Law

As most law students learn, a state or locality cannot limit applicants for employment to its own residents because of a "right to travel."  But can the federal government limit applicants to those currently residing in the District of Columbia area?  In its opinion in Pollack v. Duff, the DC Court of Appeals has stated that the federal government can do so.

The case began with a 2009 job posting from the Administrative Office (AO) of the United States Courts for an attorney-advisor for a job in DC.  The posting provided that the AO would consider applications from any employee of the federal judiciary and from any other person who lived within the "Washington Metropolitan Area." 

Malla Pollack, who represented herself in this litigation, is a former DC Court of Appeals clerk and accomplished legal scholar.  She applied for the position when she no longer worked for the judiciary and was living in Kentucky.  The  AO rejected her application because of her residency.  She protested based on residency, but was referred to the Fair Employment Practices System; she was then told that such complaints were limited to allegations of discrimination based on race, and other categories that did not include residency.  The DC Court of Appeals opinion notes that the AO's actions of referral and then dismissal essentially "played upon" Pollack.  The court might also have characterized the AO's argument of judicial review preclusion - - - because the Fair Employment Practices System is the exclusive means for deciding a claim of discrimination - - - as attempting to "play upon" the court.  Instead, the court merely gives the argument the brief discussion it merited.  

The court also notes that this is the second time the litigation reached the DC Court of Appeals.  In late 2012, the court reversed the dismissal of the complaint based on sovereign immunity, concluding that sovereign immunity does not bar a suit seeking specific relief for officers acting outside the bounds of constitutional authority.

On the merits of the right to travel argument, the court's opinion - - - authored by Senior Judge Douglas Ginsburg - - - untangles the various strands of the constitutional right to travel as might be applied to actions by the federal government.  The court first looks at Article IV §2, the privileges and immunities clause, but finds it protects state citizens against actions by other states, not by the federal government.  The court engages with the erudite originalist argument centered on James Iredell but nevertheless rejects it, noting that although the historical record is not "pellucid," reasoning in part that the

location of the Privileges and Immunities Clause in § 2 of Article IV supports the conclusion that it is directed at the states and not at the national government. Article IV is the “so-called States’ Relations Article.”  Section 2 of Article IV, in addition to the Privileges and Immunities Clause, included the Interstate Rendition Clause and the Fugitive Slave Clause, both of which were concerned with comity among the states.

The court's rejection of the equal protection claim does not rest on its inapplicability to the federal government, which "indisputably" applies to the federal government through the Fifth Amendment, including in its right to travel aspects.  Instead, the court essentially finds Pollack's claimed right too speculative:

If the AO had reviewed her application, then it might have offered her a job, which might have prompted her to move to the Washington area. Thus, Pollack might have been marginally more likely to travel to the Washington area but for the geographical limitation she is challenging. This effect upon Pollack’s willingness to travel, i.e., to exercise her right to travel, is “negligible” and does not warrant scrutiny under the Constitution.

Additionally, and more remarkably, the court rejects the argument that the AO created a classification that serves to penalize the right to travel by reasoning that the AO classification actually incentivizes the right to travel.  Distinguishing the AO classification from the durational residency requirement at issue in the landmark right to travel case of  Shapiro v. Thompson (1969), the court reasoned:

The AO’s geographical limitation is quite different, however, because it would not penalize Pollack if she decided to travel from Kentucky to the Washington area. To the contrary, the geographical limitation gives Pollack an incentive to travel to Washington in order to apply for a job with the AO that is open only to residents of the area. In other words, the geographical limitation burdens only Pollack’s decision not to travel interstate.

[emphasis in original].  The court thus did not consider what level of scrutiny should apply or whether any level would be satisfied, but simply held that the classification did not actually implicate the right to travel.  On the court's read, Pollack's only viable claim would be if she had been in DC and discouraged from leaving because she wanted to apply for the AO position; a claim the court notes that she did not make and would not have standing to raise on behalf of another person.

After a brief consideration of structural arguments, the court concludes by questioning the wisdom of the AO policy:

We agree with Pollack that it is difficult to comprehend why the AO refused to consider applicants who did not live in the Washington area but were willing to move there if they received an offer of employment. The AO points out that it receives applications from many qualified attorneys and it must limit the total number of applicants for certain positions so that it may focus upon those it is most interested in hiring. It is unclear, however, why the agency would use a geographical limitation to control the size of its applicant pool rather than criteria that are likely to be more closely correlated with job performance.

But the court decides that the AO did not violate Pollack's constitutional rights.  And given this decision - - - and the AO's protracted litigation on the issue - - - one can only assume that the AO will limit applicants by geography in future job postings.

The Supreme Court on Marriage, Procedural Due Process, Terrorism, and Immigration: Kerry v. Din

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court today issued its closely divided opinion in Kerry v. Din.  On this 800th anniversary of Magna Carta, both the plurality opinion by Justice Scalia and the dissenting opinion by Justice Breyer referenced the great charter's protection of what the Constitution's Fifth Amendment termed "due process of law." In Din, the due process rights of a citizen who obtained preferred immigration status for her spouse are at stake. Certainly the case is important in the immigration context, but how important might it be as a harbinger of the Court's impending decision in the consolidated same-sex marriage cases, Obergefell v. Hodges, argued in late April?  What Kerry v. Din might say about Obergefell is discussed here.

Charles Hawthorne, "Young man and woman in a dark, moody landscape," 1915, via 

In Kerry v. Din, a naturalized citizen, petitioned to have her husband, Berashk, classified as an “immediate relative” entitled to priority immigration status, and although this was approved, Berashk’s visa application was denied under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the consular officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed a complaint in federal court which was dismissed.  The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.

In the plurality opinion joined by Chief Justice Roberts and Justice Thomas, Justice Scalia has harsh words for Din's claim of any right of "life, liberty, or property" to which due process would attach.  It is "absurd" and nothing in the caselaw "establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection."  He characterizes her right as one to live in the United States with one's spouse, and concludes that such a right fails the Washington v. Glucksberg test requiring that any implicit right be "deeply rooted in this Nation's history and tradition."  Indeed, he argues that the history is exactly the opposite and discusses laws that mandated women "take the nationality of her husband on marriage."  While noting that modern " equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"

Justice Kennedy, joined by Justice Alito, firmly rejects Justice Scalia's conclusion: "Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse." Instead, Kennedy concludes that the "Court need not decide that issue," for "even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute's terrorism bar."  For Kennedy and Alito, the citation of the statute seemingly satisfies all the process that is due.

Dissenting, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, argues that there is a liberty interest flowing from the Due Process Clause itself and from the statutory scheme establishing immigration preferences.  In his critique of the plurality opinion, Breyer reminds readers that it "is not controlling."  He discusses a number of cases in which the Court has recognized liberty interests, perhaps most compellingly Goss v. Lopez (1975), involving students' interest in attending school and not being suspended, and which the plurality opinion seeks to distinguish. Regarding the "process due," Breyer notes that a statement of the reasons for a government action is an essential part of due process and one that a recitation of the statute in this case cannot satisfy given that it contains "dozens" of reasons.  Moreover, the government offered no factual basis. He argues:

The generality of the statutory provision cited and the lack of factual support mean that here, the reason given is analogous to telling a criminal defendant only that he is accused of “breaking the law”; telling a property owner only that he cannot build because environmental rules forbid it; or telling a driver only that police pulled him over because he violated traffic laws. As such, the reason given cannot serve its procedural purpose. It does not permit Ms. Din to assess the correctness of the State Department’s conclusion; it does not permit her to determine what kinds of facts she might provide in response; and it does not permit her to learn whether, or what kind of, defenses might be available. In short, any “reason” that Ms. Din received is not constitutionally adequate.

Thus, the dissenters would recognize both the liberty interest of a spouse in her partner's visa denial and that procedural due process requires something more than the recital of a statute; Kennedy and Alito find that the statutory referral is sufficient process; and the plurality finds that there is no liberty interest of a spouse in her partner's visa denial.  It's a fragmented set of conclusions and its predictive value for the same-sex marriage cases raises some interesting possibilities.

Federal Judge Declares No-Fly List Process Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In her  opinion in Latif v. Holder, Judge Anna Brown of the District of Oregon concluded that the "no-fly list" violates the Fifth Amendment's guarantee of due process.

Judge Brown's well-crafted 65 page opinion applies the well-established "balancing test" for  procedural due process first articulated by the United States Supreme Court in 1976 in Mathews v. Eldridge.  Under this test, a court weighs several factors to determine "how much process is due":

• the interests of the individual and the injury threatened by the official action;
• the risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
• the costs and administrative burden of the additional process, and the interests of the government in efficient adjudication

image via

After analyzing the factors and weighing the government's interest in preventing terrorism heavily, Judge Brown considered similar "terrorism" cases and noted that the

Plaintiffs in this case were not given any notice of the reasons for their placement on the No—Fly List nor any evidence to support their inclusion on the No—Fly List. Indeed, the procedural protections provided to Plaintiffs through the DHS TRIP process fall substantially short of even the notice that the courts found insufficient [in another case].

Moreover, the government's failure to provide any notice of the reasons for Plaintiffs’ placement on the No—Fly List

is especially important in light of the low evidentiary standard required to place an individual in the TSDB in the first place. When only an ex parte showing of  reasonable suspicion supported by "articulable facts . . . taken together with  rational inferences” is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that “simple factual errors” with “potentially easy, ready, and persuasive explanations” could go uncorrected.

[ellipses in original].  Thus, she concludes that "without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the no-fly list."

In granting partial summary judgment in favor of the Plaintiffs, Judge Brown directed the government defendants to "fashion new procedures" that provide the Plaintiffs with the requisite due process "without jeopardizing national security."

Certainly this litigation, which already has an extensive history, is far from over, but Judge Brown's finding of a lack of procedural due process in the government's no-fly lists is exceedingly important.

 

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

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

In 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

 

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.

Perhaps 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. 

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[image via]

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.

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

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.

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The Inconsistent Tenth Amendment?

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

 

 

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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."

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.

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.”  
• 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

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.

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.

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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? 

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.

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Of Marriage, Monopolies, and Federalism

Do the states have a marriage monopoly?

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