Saturday, April 30, 2011

Has Kris Kobach Once Again Run Amok On The Shoals Of Preemption? - Part One - Maria Gonzalez v. Arizona

While preparing a blog posting on Kansas' new prove your citizenship please, as you register to vote, otherwise known as HB 2067 the case of Maria Gonzalez v. Arizona reared its lovely head.

This case is interesting because after the three judge panel (which included retired United States Supreme Court Justice Sandra Day O'Connor) the Chief Judge of the Ninth Circuit Court of Appeals issued this order. "Upon the vote of a majority of nonrecused active judges, it is ordered that- this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." This is what is known as an en banc order, meaning that the case will be reheard by all active judges of the Ninth Circuit who have not recused themselves.

In terms of appellate advocacy, an en banc opinion carries more weight than the opinion of a three judge panel. Such opinions are less likely to be overturned on appeal by the United States Supreme Court because the possibility of all the judges of the circuit making the same error of law is remote.

My inquiry took me to the national motor voter law better known as the National Voter Registration Act, [NVRA], 42 U.S.C. §1977gg - 3. What then did that three judge panel say about proof of citizenship? The opinion, which is not precedential, was heard by O'Connor, Circuit Judge Sandra Ikuta, and Chief Judge Alex Kozinski. Ikuta wrote the majority opinion and Kozinski wrote a dissent.

The three judge panel also took a hard look at the NVRA and reached opposing conclusions. For his part Chief Judge Kozinski adheres to precedent. The Ninth Circuit has previously held that the NVRA did not preempt States from requiring proof of citizenship. See, Gonzalez I, 485 F.3d at 1048.

Judge Kozinski's dissent focuses on the rules of precedent and how the Ninth Circuit has been resolving differences between three judge panel opinions which differ from en banc opinions. Like making sausage, this is not pretty.

Ikuta's majority opinion provides the history. "The Gonzalez I panel thereafter affirmed the district court’s denial of the preliminary injunction, holding that Proposition 200’s registration requirement was not a poll tax, id. at 1049, and was not a violation of the NVRA, id. at 1050-51. The district court subsequently granted Arizona’s motion for summary judgment, relying on Gonzalez I to rule that Proposition 200 was not an unconstitutional poll tax and was not invalid as conflicting with the NVRA. After trial, the district court resolved all other claims in favor of Arizona, holding that Proposition 200 did not violate § 2 of the Voting Rights Act and did not discriminate against naturalized citizens or burden the fundamental right to vote in violation of the Fourteenth Amendment’s Equal Protection Clause." Emphasis added.

The Elections Clause

Ikuta's analysis first looks at the Elections Clause of the Constitution. "In a nutshell, the Elections Clause gives state governments initial responsibility to regulate the mechanics of national elections, “but only so far as Congress declines to preempt state legislative choices.” Foster v. Love, 522 U.S. 67, 69 (1997)."

The history of the Elections Clause reveals the reasoning behind this unusual delegation of power. Under the Articles of Confederation, the states had full authority to maintain, appoint, or recall congressional delegates. At the Philadelphia Convention, delegates expressed concern that, if left unfettered, states could use this power to frustrate the creation of the national government, most obviously by neglecting to hold federal elections. The Framers decided that Congress should be given the authority to oversee the states’ procedures related to national elections as a safeguard against potential state abuse.
Ikuta writes that a "state’s role in the creation and implementation of federal election procedures under the Elections Clause is to administer the elections through its own procedures until Congress deems otherwise; if and when Congress acts, the states are obligated to conform to and carry out whatever procedures Congress requires."

The Supremacy Clause

Ikuta notes that the Supreme Court has given the federal courts guidance when interpreting the Supremacy Clause. First, in examining claims that a federal law preempts a state statute through the Supremacy Clause, the Supreme Court instructs courts to begin with a presumption against preemption. Second, the Court has adopted a “plain statement rule,” holding that a federal statute preempts a state statute only when it is the “clear and manifest purpose of Congress” to do so.

Ikuta finds that " the Elections Clause, as a standalone preemption provision, establishes its own balance, resolving all conflicts in favor of the federal government." The inquiry into the presumption against preemption does not apply in Election Clauses cases. This is true because the power over elections is delegated to the States and is not a power reserved to them.

Ikuta's approach is to " consider the state and federal laws as if they comprise a single system of federal election procedures." She explains that "[if] the state law complements the congressional procedural scheme, we treat it as if it were adopted by Congress as part of that scheme. ... If Congress addressed the same subject as the state law, we consider whether the federal act has superseded the state act, based on a natural reading of the two laws and viewing the federal act as if it were a subsequent enactment by the same legislature."

Ikuta then takes her analysis into an attempt to harmonize the NVRA with Arizona's Proposition 200. She looks first at Congressional intent. : Congress enacted the NVRA because, among other reasons, it determined that discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.” 42 U.S.C. § 1973gg(a)."

Going through the history of Congress' efforts to eliminate discriminatory and unfair voter registration laws Ikuta explains the painfully slow process of litigation before moving on the Voting Rights Act, [VRA]. The VRA accomplished many of the Congressional goals concerning voting, but did not address the problems of voter registration. Citing legislative history she says "the VRA failed to address voter registration procedures, which imposed a “complicated maze of local laws and procedures, in some cases as restrictive as the outlawed practices, through which eligible citizens had to navigate in order to exercise their right to vote,” H.R. Rep. No. 103-9, at 3 (1993)."

Congressional Intent

"Congress found that, while over eighty percent of registered citizens voted in Presidential elections, only sixty percent of eligible voters were registered. H.R. Rep. No. 103-9, at 3. Public opinion polls showed that the primary reason eligible citizens were not voting was the failure to register. Id. While acknowledging that this failure was attributable to many factors outside its control, Congress enacted the NVRA to address the problems within its control, namely those barriers to registration that were imposed by state governments. See id. Under the Elections Clause, Congress had the power “to provide a complete code for congressional elections, not only as to times and places, but in relation to . . . registration.” Smiley v. Holm, 285 U.S. 355, 366 (1932). Through this authority, Congress enacted the NVRA to remove these obstacles and “to provide simplified systems for registering to vote in federal elections.” Young v. Fordice, 520 U.S. 273, 275 (1997),"

Ikuta then connects the Congressional intent with the scheme of practice which the NVRA imposes on the states. That scheme includes not only permitting voter registration at the Departments of Motor Vehicles, but also requiring State Offices which serve the poor and disabled, those who would not necessarily come into contact with the drivers license bureau, to provide voter registration services.

Ikuta goes into detail about the proscribe Federal Form for Voter Registration. Here is the pertinent part of the statute.

The Federal Form:
(1) may require only such identifying information (including the
signature of the applicant) and other information (including data
relating to previous registration by the applicant), as is necessary
to enable the appropriate State election official to assess the eligibility
of the applicant and to administer voter registration and
other parts of the election process;
(2) shall include a statement that—
(A) specifies each eligibility requirement (including citizenship);
(B) contains an attestation that the applicant meets each such
requirement; and
(C) requires the signature of the applicant, under penalty of perjury;
(3) may not include any requirement for notarization or other formal
authentication; and
(4) shall include, in print that is identical to that used in the attestation
portion of the application—
(I) [voter eligibility requirements and penalties for false applications,
§ 1973gg-6(a)(5)]
(ii) a statement that, if an applicant declines to register to vote,
the fact that the applicant has declined to register will remain
confidential and will be used only for voter registration purposes;
(iii) a statement that if an applicant does not register to vote, the
office at which the applicant submits a voter registration application
will remain confidential and will be used only for voter registration
§ 1973gg-7(b).
Election Clause Analysis: Is Proposition 200’s documentary proof of citizenship requirement is superseded by the NVRA ?

The appellate court considered if the state and federal enactments together as if they composed a single system of federal election procedures. Then the appellate court considered whether consider whether, read naturally, the NVRA provisions complement Proposition 200’s voter registration requirements or supersede them. The holding said that where "a natural interpretation of the language of the two enactments leads to the conclusion that the state law does not function consistently and harmoniously with the overriding federal scheme, then it is replaced by the federal statute."

Ikuta Finds Conflict

"Applying this framework, we conclude that Proposition 200’s documentary proof of citizenship requirement conflicts with the NVRA’s text, structure, and purpose. First, the NVRA addresses precisely the same topic as Proposition 200 in greater specificity, namely, the information that will be required to ensure that an applicant is eligible to vote in federal elections."

"Given the NVRA’s comprehensive regulation of the development of the Federal Form, there is no room for Arizona to impose sua sponte an additional identification requirement as a prerequisite to federal voter registration for registrants using that form. If viewed as a second enactment by the same legislature, the NVRA clearly subsumes Proposition 200’s additional documentary requirement on registrants using the Federal Form."

Congressional Intent Vitiated

"Further supporting this conclusion," Ikuta writes, "the value of the Federal Form (and hence a centerpiece of the NVRA) would be lost, and Congress’s goal to eliminate states’ discriminatory or onerous registration requirements vitiated, if we were to agree with Arizona that states could add any requirements they saw fit to registration for federal elections through the Federal Form."

"Moreover, specific statutory language in the NVRA, when read in an unstrained and natural manner, is inconsistent with the state enactment. The NVRA mandates that states “shall accept and use” the Federal Form when applicants register by mail. § 1973gg-4(a). It likewise requires “acceptance” of the completed Federal Form at state office buildings, which must be transmitted to the appropriate State election officials. § 1973gg-5(a)(4)(iii). The state must implement these methods of registering voters, as well as the combined motor vehicle-voter registration form, § 1973gg-3(c)(1), “notwithstanding any other Federal or state law,” § 1973gg-2(a)."

"Structurally, allowing states to impose their own requirements for federal voter registration on registrants using the Federal Form would nullify the NVRA’s procedure for soliciting state input, and aggrandize the states’ role in direct contravention of the lines of authority prescribed by Section 7. The NVRA permits states to suggest changes to the Federal Form, but gives the EAC ultimate authority to adopt or reject those suggestions. § 1973gg-7(a)."

"Proposition 200 is not in harmony with the intent behind the NVRA, which is to reduce state-imposed obstacles to federal registration. It is indisputable that by requiring documentary proof of citizenship, Proposition 200 creates an additional state hurdle to registration. As indicated in our overview, supra Part C.2, the NVRA was sensitive to the multiple purposes of a federal voter registration scheme, including the need “to establish procedures that [would] increase the number of eligible citizens who register to vote in elections for Federal office” and the need to protect “the integrity of the electoral process.” § 1973gg(b). The balance struck by the EAC pursuant to § 1973gg-7(a) was to require applicants to attest to their citizenship under penalty of perjury, but not to require the presentation of documentary proof."

Stay tuned to the opinion of the Ninth Circuit en banc. Once the judges get past the sausage making I expect they will hammer out an opinion, with a dissent or two. This is the stuff that makes its way to the Supreme Court because the Court takes its role in clarifying the law seriously.


Friday, April 29, 2011


Judge Noonan begins his concurrence with these words: "I concur in the opinion of the court. I write separately to emphasize the intent of the statute and its incompatibility with federal foreign policy." He adroitly draws the intent of SB 1070 from §1 of the Arizona statute. That intent is to cause the attrition of illegal aliens in Arizona through enforcement of SB 1070.

Then Judge Noonan exposes the remaining challenged sections of SB 1070 by reading them in light of Arizona's expressed intent.

"Section 2 might, in isolation from Section 1, be read as requiring information only. Such a reading would ignore the intent established in Section 1, to secure attrition through enforcement. As the United States observes, Arizona already had the capability of obtaining information on immigrants by consulting the federal database maintained by the federal government. Section 2 of the statute provides for more — for the detention of immigrants to achieve the purpose of the statute. Section 2 is not intended as a means of acquiring information. It is intended to work with the other provisions of the act to achieve enforcement."

Foreign Policy

"Federal foreign policy is a pleonasm. What foreign policy can a federal nation have except a national policy? That fifty individual states or one individual state should have a foreign policy is absurdity too gross to be entertained. In matters affecting the intercourse of the federal nation with other nations, the federal nation must speak with one voice." By pleonasm the Judge is saying that the term Federal foreign policy is idiomatic meaning one thing only, that it is the policy of the Federal Government, not the fifty separate policies of fifty separate state governments. Judge Noonan presents the argument for our Constitution, as opposed to governance under the Articles of Confederation.

Local Impact

Judge Noonan takes historical note of the transformation of Roman Britain by the immigration of the Angles and the Saxons. Noonan reminds us that the number illegal immigrants in the United States comes nowhere near the kinds of numbers which affected that historical transformation. Across the nation illegal immigrants account for about 4% of the population, in Arizona that number is closer to 7%.

Noonan says: "The local impact appears to call for local response. Yet ineluctably the issue is national. The people of other nations are entering our nation and settling within its borders contrary to our nation’s stated requirements. We must deal with people of other nations and so must deal with other nations. The problems are local but our whole nation is affected. Reasonably, the nation has made enforcement of criminal sanctions against aliens criminally present in the United States the top priority of the federal government. United States Sentencing Commission, Overview of Federal Criminal Cases Fiscal Year 2009 at 1." Ineluctably means unavoidable.

Noonan Makes the Case for Preemption

"The foreign policy of the United States preempts the field entered by Arizona. Foreign policy is not and cannot be determined by the several states, " Noonan writes.

"Federal foreign policy is determined by Congress when Congress exercises the power to declare war conferred upon it by Article I, Section 8 of the Constitution. Foreign policy is also determined by the Senate when it exercises the power to ratify a treaty, the power conferred upon it by Article II, Section 2. Congress also determines foreign policy when it lays excise taxes upon foreign imports under Article I, Section 8. Congress further determines foreign policy when it authorizes sanctions against a nation, e.g., Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000)."

Foreign policy is a function of executive power that goes beyond declarations of war and treaty making. Foreign policy includes the exchange of ambassadors, trade agreements, the exchange of information, and the facilitation of travel abroad by Americans.

"Less than eight years ago the Supreme Court reviewed and reaffirmed the position of the Executive Branch in forming foreign policy preemptive of legislation by a state. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003). Strong humanitarian considerations supported California’s legislation to provide a remedy against insurance companies that had profited from the Nazi treatment of Jewish victims of the Holocaust. Recognizing that “the iron fist” of California might be more effective than the gentler approach taken by the Executive Branch, the Supreme Court assembled cases showing the President’s “unique responsibility” for the conduct of foreign policy. Id. at 415. Noting that no express text in the Constitution conferred this authority, the Court quoted both Hamilton and Madison in The Federalist on the structure of the nation being designed. Structure was stronger than text. The Supreme Court demonstrated that strength in an unbroken line of decisions acknowledging presidential leadership in foreign affairs. Id. at 413-415. Presidential power to preempt states from acting in matters of foreign policy is beyond question." Emphasis added.

Noonan's Conclusion

"The Arizona statute before us has become a symbol. For those sympathetic to immigrants to the United States, it is a challenge and a chilling foretaste of what other states might attempt. For those burdened by unlawful immigration, it suggests how a state could tackle that problem. It is not our function, however to evaluate the statute as a symbol. We are asked to assess the constitutionality of five sections on their face integrated by the intent stated in Section 1. If we read Section 1 of the statute, the statute states the purpose of providing a solution to illegal immigration into the United States. So read, the statute is a singular entry into the foreign policy of the United States by a single state. The district court properly enjoined implementation of the four sections of the statute."

Next we look at Judge Bea's opinion which concurred in part and dissented in part.

Wednesday, April 27, 2011


Chief Justice John Roberts wrote in the case of Winter v. Natural Resources Defense Council, (No. 07-1239) 555 U.S. ___ (2008) that "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."

Relying on Winters Judge Paez next takes the Ninth Circuit's review of Judge Bolton's decision to a review of the equitable factors of the case. Citing a litany of cases Paez demonstrates that the balance of equities is clearly in favor of the United States and against Arizona.

Assoc. Gen. Contractors v. Coal. For Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991): "We have stated that an alleged constitutional infringement will often alone constitute irreparable harm."

Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 852-53 (9th Cir. 2009): "[I]t is clear that it would not be equitable or in the public’s interest to allow the state . . . to violate the requirements of federal law, especially when there are no adequate remedies available . . . . In such circumstances, the interest of preserving the Supremacy Clause is paramount."

Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1059-60 (9th Cir. 2009): which recognized that the balance of equities and the public interest weighed in favor of granting a preliminary injunction against a likely-preempted local ordinance.


Paez sustained Judge Bolton writing: "Accordingly, we find that as to the S.B. 1070 Sections on which the United States is likely to prevail, the district court did not abuse its discretion in finding that the United States demonstrated that it faced irreparable harm and that granting the preliminary injunction properly balanced the equities and was in the public interest."

The irony of this scant inquiry in favor of the government's position is that it was a scant inquiry against the government's position in Winter that led to the Supreme Court's review and overruling of that case. The original action in Winter led a California District Court to issue an injunction against the Navy for its use of sonar testing off the California coast. In that case the trial judge failed to give adequate deference to the Navy. What saves Judge Paez's opinion is that this abbreviated part of his analysis is not taken out of context. Paez's section by section discussion of SB 1070 anchors his conclusion; the brevity of which saves us from redundancy.

Coming up next: Judge Noonan's concurring opinion.

Wednesday, April 20, 2011


Senator Bernie Sanders' Guide to Corporate Freeloaders should be placed in context. That context is how much money are they paying to members of Congress.

This reminds me of the old adage that you might want to buy a scorecard if you want follow the players. The Center for Responsive Politics' OpenSecrets.Org lists a significant number of affiliates for Exxon Mobil. The numbers are for all cycles reported by Open Secrets, (1990 - 2010). These are combined numbers for Exxon Mobil and Affiliates PACs and individuals.

Here is how ExxonMobil manages to average $1,000,000 a year buying Congress

Exxon Bulk Plant gave $250 to Republicans.

Exxon Chemical gave Republicans $6,500.

Exxon Coal and Minerals gave $250 to Republicans.

Exxon Corp, the big Kahuna gave $2,574,031. Democrats took $324,715 while Republicans walked away with $2,246,566. That's 13% to the Democrats and 87% to Republicans.

Exxon Distributor gave $500.00 to Republicans.

Exxon Engineering gave $1.750 to Republicans.

Exxon Mobil Chemical gave $25,521 of which $800 went to Democrats (3%) and $24,721 went to Republicans (97%).

Exxon Mobil Exploration gave $500 splitting it evenly between Democrats and Republicans.

Exxon Mobil Retining gave $400 to Democrats.

Exxon Mobil Petroleum Products gave $250 to Republicans.

Exxon Pipeline gave $750 to Republicans.

Exxon Products gave $250 to Republicans.

Exxon Research & Engineering gave $1,000 to Republicans.

Exxon Tropic Oil gave $1,500 to Republicans.

Exxon Valdez gave $960 to Democrats.

Exxon Mobil Pipeline Co. gave $250 to Republicans.

Mobil Chemical gave $6,974 to Republicans.

Mobil Oil gave $1,314,48. $190,900 went to Democrats (15%) while $1,122,830 went to Republicans (85%).

Nalco/Exxon Energy Chemicals gave $250 to Republicans.

In the 2012 cycle $330 has been contributed to Republicans.

The bottom line is that ExxonMobil and their affiliates have given $10,016,014 to influence Congress. Democrats took 11% or $1,132,397. Republicans took $8,860,995 or 89%.

Exxon Mobil's profits rose 53% in fourth quarter profits in 2010.  Exxon Mobil, the world's largest oil company, can afford to shoulder their fair share of America's economic burden.

Republicans don't want Exxon Mobil to pay taxes and they have $8,860,995 reasons why.

Tuesday, April 19, 2011


S.B. 1070 Section 6 provides that “[a] peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States.”19 Ariz. Rev. Stat. Ann. § 13-3883(A)(5) (2010).

Employing statutory analysis to make certain that “[e]ach word, phrase, clause, and sentence . . .must be given meaning so that no part will be void, inert, redundant, or trivial,” Williams v. Thude, 934 P.2d 1349, 1351 (Ariz. 1997) Judge Paez examines § 13-3883(A) to determine if Judge Bolton properly construed Arizona law.

Warrantless arrest is already permitted under § 13-3883(A) for felonies, misdemeanors, petty offenses, and certain traffic related criminal violations. Judge Paez says in his majority opinion that he and Judge Noonan came to the same conclusion reached below. "we conclude, as the district court did, that Section 6 “provides for the warrantless arrest of a person where there is probable cause to believe the person committed a crime in another state that would be considered a crime if it had been committed in Arizona and that would subject the person to removal from the United States.” United States v. Arizona 703 F. Supp. 2d 980, 1005 (D. Ariz. 2010).

No Presumption Against Preemption

The majority opinion began its inquiry by looking at whether "arresting immigrants for civil immigration violations" was a field typically occupied by the States. Since this is not an area of law traditionally exercised by the States the court found no presumption against preemption. Relying on Wyeth, the court found that no historic police power of Arizona weighed in favor of preemption.

Examining Congressional intent Paez reviewed 8 U.S.C. § 1252c which authorizes state and local officers “to the extent permitted by relevant State . . . law,” arrest and detain an individual who:

(1) is an alien illegally present in the United States;


(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual.
Paez finds that nothing in 8 U.S.C. § 1252c authorizes warrantless arrests, only permits state and local officers to arrest an immigrant who has been convicted of a felony, and the federal statute imposes a mandatory duty on state and local officers to confirm the individual's status with Immigration and Naturalization Service prior to arrest.

Paez writes "Misdemeanors, not just felonies, can result in removablility. See generally, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc). Thus, Section 6 authorizes state and local officers to effectuate more intrusive arrests than Congress has permitted in Section 1252c.

Requirements for Warrantless Arrest

Paez sets out the statutory requirements for a warrantless arrest in the immigration scheme adopted by Congress. "Absent a federal officer actually viewing an immigration violation, warrantless arrests under 8 U.S.C. § 1357(a) require a likelihood that the immigrant will escape before a warrant can be obtained. 8 U.S.C. §§ 1357(a)(2), (a)(4), (a)(5). Section 6 contains no such requirement and we are not aware of any INA provision indicating that Congress intended state and local law enforcement officers to enjoy greater authority to effectuate a warrantless arrest than federal immigration officials."

Attrition through Enforcement

"Section 6 interferes," writes Paez, "with the carefully calibrated scheme of immigration enforcement that Congress has adopted, and it appears to be preempted." Arizona had a different idea which Paez refutes. "Arizona suggests, however, that it has the inherent authority to enforce federal civil removability without federal authorization, and therefore that the United States will not ultimately prevail on the merits. We do not agree. Contrary to the State’s view, we simply are not persuaded that Arizona has the authority to unilaterally transform state and local law enforcement officers into a state-controlled DHS force to carry out its declared policy of attrition. The Ninth Circuit found no such authority as claimed by Arizona.

"We are not aware of any binding authority holding that states possess the inherent authority to enforce the civil provisions of federal immigration law —we now hold that states do not have such inherent authority." Remember this detail because it will be revisited by the dissenting opinion of Judge Bea.

A Split In the Circuits

A split in the opinions of the various Circuit Courts of Appeal is a direct invitation for the Supreme Court to resolve the differing opinions. Here the majority opinion agrees with the Sixth Circuit in United States v. Urrieta, 520 F.3d 569 (6th Cir. 2008). Paez opinion says "the Sixth Circuit cited 8 U.S.C. § 1357(g), which it summarized as “stating that local law enforcement officers cannot enforce completed violations of civil immigration law (i.e., illegal presence) unless specifically authorized to do so by the Attorney General under special conditions.”

The Tenth Circuit reached a different conclusion. The case was United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999). In Vasquez-Alvarez the defendant argued that evidence should have been suppressed because the local law enforcement officers did not comply with the requirements of 8 U.S.C. § 1252c.

The Tenth Circuit relied on a reading of legislative history to assist it in making its opinion. Paez calls the Tenth Circuit's opinion nonsensical. "The Tenth Circuit’s interpretation of this legislative history is not persuasive. Section 1252c was intended to grant authority to state officers to aid in federal immigration enforcement because Congress thought state officers lacked that authority. The Tenth Circuit’s conclusion is nonsensical: we perceive no reason why Congress would display an intent “to displace preexisting . . . authority” when its purpose in passing the law was to grant authority it believed was otherwise lacking."

Paez concludes this debate with the Tenth Circuit saying " Subsection (g)(10) neither grants, nor assumes the preexistence of, inherent state authority to enforce civil immigration laws in the absence of federal supervision. If such authority existed, all of 8 U.S.C. § 1357(g)—and § 1252c for that matter—would be superfluous, and we do not believe that Congress spends its time passing unnecessary laws."

The Ruling

Paez finds "S.B. 1070 Section 6 exceeds the scope of federal authorization for Arizona’s state and local officers to enforce the civil provisions of federal immigration law. Section 6 interferes with the federal government’s prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws. Accordingly, Section 6 stands as an obstacle to the full purposes and objectives of Congress."

The death knell for Section 6 tolled when Paez wrote "In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 6 would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same."

Part Six of this series will look Judge Paez's discussion on the Equitable Factors of this case.

DONALD TRUMP'S MEXICAN BIRTH CERTIFICATE HAS BEEN POSTED ONLINE - IS HE AN AMERICAN AFTERALL??? (OR HOW BEING A BIRTHER BIT DONALD TRUMP IN THE BUTT) is funny, imaginative, well written, and contains the seed of insanity which places the cross hairs of the Birther Movement directly on the forehead of the Birther's current heart throb, Donald Trump.

In her blog "Sarah, proud and tall" says that the Donald was actually born in a Mexican hospital. See,

But that of course is not important if the child of an American citizen is born in Mexico that child is still American. Not so fast. The Donald's mother WAS NOT American, she came from Scotland. And the Donald's daddy is purportedly a naturalized American citizen. To date I have not seen the usurper of the Birther Movement, "Donaldo" Trump, dragging out his father's naturalization papers. And while the Donald is fixing that hole in his heritage why doesn't he explain why his daddy changed his name from Drumpf to Trump.

Of course, "Sarah, proud and tall" has a copy of "el Donaldo's" Mexican Birth Certificate posted on line. Boys and girls, ladies, and gentlemen this is a hoot!

This "Sarah, proud and tall" is an absolute, although rated hard "R", must read. I recommend her blog as an excellent example of salacious wit. Just for grunts and grins we can all now speculate whether the Donald is Mexican, Scottish, or German.

My thanks to Pa Rock's Ramble,, for the heads-up about

Monday, April 18, 2011


Section 5(C)

S.B. 1070 Section 5(C) provides that it “is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” Ariz. Rev. Stat. Ann. § 13-2928(C) (2010). Violation of this provision is a class 1 misdemeanor, which carries a six month maximum term of imprisonment. Ariz. Rev. Stat. Ann. §§ 13-2928(F), 13-707(A) (1) (2010). Thus, Section 5(C) criminalizes unauthorized work and attempts by illegal aliens to secure such work.

A Presumption of Non-preemption

The legal principal that the historic police powers of the States includes the power to regulate the employment of unlawful aliens has previously been recognized in Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 865 (9th Cir. 2009), cert. granted, and Chamber of Commerce of the U.S. v. Candelaria, 130 S. Ct. 3498 (2010). Therefore a presumption of non-preemption exists as to § 5(C). Judge Paez writes : “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 129 S. Ct. at 1194.

The controlling case for Paez's inquiry is National Center for Immigrants’ Rights, Inc. v. I.N.S., 913 F.2d 1350 (9th Cir. 1990), reversed on other grounds, 502 U.S. 183 (1991). That is because the Ninth Circuit has previously reviewed the Immigration Reform and Control Act of 1986 [IRCA] legislative history and Congress’ decision not to criminalize unauthorized work.

The question in National Center whether the INA, through 8 U.S.C. § 1252(a), authorized the Immigration and Naturalization Service [INS] to promulgate regulations which "imposed a condition against employment in appearance and delivery bonds of aliens awaiting deportation hearings." In deciding National Center the Ninth Circuit carefully reviewed the history of employment-related provisions in the INA’s legislative scheme—including the legislative history of the IRCA amendments.

In National Center the Ninth Circuit's conclusion was that concluded that   "[w]hile Congress initially discussed the merits of fining, detaining or adopting criminal sanctions against the employee, it ultimately rejected all such proposals . . . Congress quite clearly was willing to deter illegal immigration by making jobs less available to illegal aliens but not by incarcerating or fining aliens who succeeded in obtaining work. "

Footnote 17 of Judge Paez's opinion places the issue into context. "We find it particularly relevant here that during the hearings which shaped IRCA, the Executive Assistant to the INS Commissioner stated that the INS did “not expect the individual to starve in the United States while he is exhausting both the administrative and judicial roads that the [INA] gives him.” National Center, 913 F.2d at 1368.

The Court agreed with Arizona that the ultimate legal issue presented in the SB1070 differs from the one presented in National Center. Paez writes that "Nonetheless, we do not believe that we can revisit our previous conclusion about Congress’ intent simply because we are considering the effect of that intent on a different legal question." The majority found that SB1070 §5(C) is likely preempted Therefore, our decision since the state law conflicts with what the Ninth Circuit previously found to be Congress’ IRCA intent.

Congress' intent was for the onus to be placed on employers and not employees. 8 U.S.C. § 1324a, the relevant portion of the IRCA, demonstrates that intent. Paez writes:

Section 1324a establishes a complex scheme to discourage the employment of unauthorized immigrants—primarily by penalizing employers who knowingly or negligently hire them. The statute creates a system through which employers are obligated to verify work authorization. The verification process includes a requirement that potential employees officially attest that they are authorized to work. 8 U.S.C. § 1324a(b)(2). The statute provides that the forms potential employees use to make this attestation “may not be used for purposes other than for enforcement of this chapter and” 18 U.S.C. §§ 1001, 1028, 1546 and 1621. 8 U.S.C. § 1324a(b)(5). These sections of Title 18 criminalize knowingly making a fraudulent statement or writing; knowingly making or using a false or stolen identification document; forging or falsifying an immigration document; and committing perjury by knowingly making a false statement after taking an oath in a document or proceeding to tell the truth. This is the exclusive punitive provision against unauthorized workers in 8 U.S.C § 1324a. All other penalties in the scheme are exacted on employers, reflecting Congress’ choice to exert the vast majority of pressure on the employer side. (Emphasis added.)
Congress' intent was not to criminalize employment. Paez reasons that 8 U.S.C. § 1324a(d)(2)(C) provides that:

[a]ny personal information utilized by the authorization verification] system may not be made available to Government agencies, employers, and other persons except to the extent necessary to verify that an individual is not an unauthorized alien.” This provision would prohibit Arizona from using personal information in the verification system for the purpose of investigating or prosecuting violations of S.B. 1070 Section 5(C). Subsection 1324a(d)(2)(F) provides in even clearer language that “[t]he [verification] system may not be used for law enforcement purposes, other than for enforcement of this chapter or” the aforementioned Title 18 fraud sections. (Emphasis added.)
Subsection 1324a(g)(1) demonstrates Congress’ intent to protect unauthorized immigrant workers from financial exploitation—a burden less severe than incarceration. Subsection 1324a(e) provides for a system of complaints, investigation, and adjudication by administrative judges for employers who violate subsection (g)(1). "Congress required employers to repay any employee — including undocumented employees. Where Congress did not require undocumented workers to forfeit their bonds, we do not believe Congress would sanction the criminalization of work," Paez wrote.

Paez concluded "that the text of 8 U.S.C. § 1324a, combined with legislative history demonstrating Congress’ affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment, likely reflects Congress’ clear and manifest purpose to supersede state authority in this context."

The Ninth Circuit relied on the precedential value of Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495 (1988) regarding federal inaction and the implication of preemption.

"There is no federal preemption in vacuo, without a constitutional text or a federal statute to assert it. Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the preemptive inference can be drawn—not from federal inaction alone, but from inaction joined with action." Isla at 513.

In Isla Congress had withdrawn from all substantive involvement in the litigated field which was petroleum allocation and price regulation. In this case Paez finds that Congress has not substantially withdrawn from a regulatory scheme regarding the employment of unlawful aliens.

"We are also guided by the Supreme Court’s recognition," Paez says," even before IRCA, that a “primary purpose in restricting immigration is to preserve jobs for American workers.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 893 (1984). As Arizona states, “Section 5(C) clearly furthers the strong federal policy of prohibiting illegal aliens from seeking employment in the United States.” The Supreme Court has cautioned, however, that “conflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy.” Wisconsin Department of Industrial, Labor, and Human Relations v. Gould, 475 U.S. at 286 (quoting Motor Coach Employees. v. Lockridge, 403 U.S. 274, 287 (1971))."

Paez then harmonizes the cases of Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000). and American Insurance Association v. Garamendi. 539 U.S. 396 (2003) "In Crosby, the Court explained that “a common end hardly neutralizes conflicting means.” 530 U.S. at 379-80." Similarly, in Garamendi, the Court explained that a state law was preempted because “[t]he basic fact is that California seeks to use an iron fist where the President has consistently chosen kid gloves.” 539 U.S. at 427. The problem with a state adopting a different technique in pursuit of the same goal as a federal law, is that “[s]anctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions . . . undermines the congressional calibration of force.” Crosby, 530 U.S. at 380. Paez offers a more in depth reading of Crosby and Garamendi in footnote 3.

Paez makes the distinction between Congressional intent and Arizona's statute.  "In the context of unauthorized immigrant employment, Congress has deliberately crafted a very particular calibration of force which does not include the criminalization of work. By criminalizing work, S.B. 1070 Section 5(C) constitutes a substantial departure from the approach Congress has chosen to battle this particular problem." Since Congress did not intend to criminalize employment by the unlawful alien Arizona's SB1070 creates an obstacle to the regulatory scheme adopted by Congress.

Finding that this section, like §2(B) has a detrimental effect on the foreign affairs of the nation Paez went on to find that "the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 5(C) would not be preempted, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same."

Part five of this series will focus on Section 6 of SB1070.

Friday, April 15, 2011


S.B. 1070 Section 3 provides: “In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code section 1304(e) or 1306(a).”15 Ariz. Rev. Stat. Ann. § 13-1509(A) (2010). The penalty for violating Section 3 is a maximum fine of one hundred dollars, a maximum of twenty days in jail for a first violation, and a maximum of thirty days in jail for subsequent violations. Ariz. Rev. Stat. Ann. § 13-1509(H). Section 3 “does not apply to a person who maintains authorization from the federal government to remain in the United States.” Ariz. Rev. Stat. Ann. § 13-1509(F) (2010). Section 3 essentially makes it a state crime for unauthorized immigrants to violate federal registration laws.

Judge Paez's opening volley on §3 refutes any presumption against preemption because enforcing immigration laws is not an area traditionally occupied by the States. That means the presumption safeguarding the historic police powers of the States does not apply.

Judge Paez next engages in statutory interpretation of 8 U.S.C. §§ 1304 and 1306. Paez writes: "These sections create a comprehensive scheme for immigrant registration, including penalties for failure to carry one’s registration document at all times, 8 U.S.C. § 1304(e), and penalties for willful failure to register, failure to notify change of address, fraudulent statements, and counterfeiting. 8 U.S.C. § 1306 (a)-(d). These provisions include no mention of state participation in the registration scheme. By contrast, Congress provided very specific directions for state participation in 8 U.S.C. § 1357, demonstrating that it knew how to ask for help where it wanted help; it did not do so in the registration scheme."

Dismantling the intellectual sleight of hand apparently devised by SB 1070's brain trust, Kris Kobach, Judge Paez exposes the weakness of Arizona's legal argument.

Arizona was arguing that §3 was not preempted because Congress had invited the participation of the States in the general scheme of immigration enforcement.

Paez writes "Congress has expressly indicated how and under what conditions States should help the federal government in immigration regulation. See 8 U.S.C. §§ 1621-25, 1324a(h)(2).

The sections Arizona cites authorize states to limit certain immigrants’ eligibility for benefits and to impose sanctions on employers who employ unauthorized immigrants." Paez noted that Congress did not intend for the States to engage in the enforcement or punishment of federal immigration registration rules. Paez is not letting Arizona get away with Kobach's clever argument of usurping authority from one specific section of the INA and applying it generally to all sections of the INA.

Paez strikes at the heart of Arizona's Kobachian weakness by pointing out that which a Professor of Constitutional Law should be aware, rulings of the Supreme Court.

Paez says "S.B. 1070 Section 3 plainly stands in opposition to the Supreme Court’s direction: “where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Hines, 312 U.S. at 66-67.

In Hines, the Court considered the preemptive effect of a precursor to the INA, but the Court’s language speaks in general terms about “a complete scheme of regulation,” — as to registration, documentation, and possession of proof thereof — which the INA certainly contains. Section 3’s state punishment for federal registration violations fits within the Supreme Court’s very broad description of proscribed state action in this area—which includes “complementing” and “enforcing additional or auxiliary regulations."

Paez next takes Arizona to school by citing cases where preemption does or does not apply and Paez is kind enough to teach Arizona why the results are reached.

The Critical Element Standard

Beginning with Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001) Paez notes that the Supreme Court held that the Food Drug and Cosmetics Act (FDCA) conflict preempted a state law fraud claim against defendants who allegedly made misrepresentations to the Food and Drug Administration (FDA). 531 U.S. at 343. The Court explained that private parties could not assert state-fraud on the FDA claims because, “the existence of the federal enactments is a critical element in their case.” The same principle applies here to S.B. 1070 Section 3, which makes the substantive INA registration requirements “a critical element” of the state law.

The Generality or Wider Application Standard

Paez discusses a line of cases where the State laws were not preempted by the Federal Statute. Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) where the Supreme Court held that an express preemption provision in the Federal Medical Device Amendments to the FDCA did not preclude a state common law negligence action against the manufacturer of an allegedly defective medical device. The State Law was predicated on a theory of negligence.

In Altria Group., Inc. v. Good, 129 S. Ct. 538 (2008) the Supreme Court held that the federal Labeling Act did not expressly preempt plaintiffs’ claims under the Maine Unfair Trade Practices Act alleging that Altria’s advertising of light cigarettes was fraudulent. The State Law was predicated on a theory of unfair business practices.

In Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) the Supreme Court held that the FDA’s drug labeling judgments pursuant to the FDCA did not obstacle preempt State Law products liability claims. Obstacle preemption exists where under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Paez makes the distinction between the cases he cited and SB 1070. "All of the state laws at issue in these cases had significantly wider applications than the federal statutes that the Court found did not preempt them. Here, however, Section 3’s “generality” has no wider application than the INA."

Like Section 2(b), Section 3 fails because of its detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme. Paez's majority opinion found that the inconceivable standard had been met, that the United States was likely to succeed on the merits of their case and that Judge Bolton did not abuse her discretion.

Part Three of this series will discuss Judge Paez's majority opinion and Section 5(c) of SB1070.

Thursday, April 14, 2011


The GOP's BIG LIE: "We Have a Spending Problem Not a Revenue Problem!"

The thing about a big lie is its chronic repetition. When a lie is told, over and over, for years, through different campaign cycles the lie become a mantra. There is zero truth to the fact that America does not have a Revenue Problem.

You can reasonably argue that the FAT CAT TAX BOONDOGGLE is both a Revenue Problem and a Spending Problem. The FAT CAT TAX BOONDOGGLE is a Revenue Problem because the FAT CAT TAX BOONDOGGLE is not paid for.

The FAT CAT TAX BOONDOGGLE is a Spending Problem because We the People have to borrow, and further extend the deficit, by $500 Billion each year to give MULTI-MILLIONAIRES and BILLIONAIRES the privilege of not paying their way.

The GOP will buttress the BIG LIE with another BIG LIE that these top 2% of America's most wealthy are "JOB CREATORS". Well. the proof is in the pudding. During the 8 years of the Bush Presidency we had the Bush Era Tax Cuts which included the FAT CAT TAX BOONDOGGLE. These alleged JOB CREATORS failed to produce jobs during the Bush Administration. They contributed, instead, to a culture of greed that exacerbated the Great Recession.

If these top 2% of America's most wealthy actually created jobs then we'd be at full employment. We are nowhere close. The fragile recovery we enjoy is the result of an undersized Stimulus Bill. The GOP believes in the black depth of its cold heart that they can win the Presidency by keeping the recovery stalled or reversed.

While working folk, the elderly, school children, babies, and college students are being asked to pay more, do with less, and quit complaining the Republicans want to make certain that the Rich keep getting Richer.

Challenge the Big Lie, demand that the FAT CAT TAX BOONDOGGLE be ended and America return to the tax rates of the Clinton Presidency. You remember those days of job creation, budget surpluses, and predictability in the marketplace made possible by fair taxes on all segments of society.


Judge Paez's section by section analysis of the enjoined sections of Arizona's SB 1070 began with section 2(b).

S.B. 1070 Section 2(B) provides, in the first sentence, that when officers have reasonable suspicion that someone they have lawfully stopped, detained, or arrested is an unauthorized immigrant, they “shall” make “a reasonable attempt . . .when practicable, to determine the immigration status” of the person. Ariz. Rev. Stat. Ann. § 11-1051(B) (2010).

Section 2(B)’s second and third sentences provide that “any person who is arrested shall have the person’s immigration status determined before the person is released,” and “the person’s immigration status shall be verified with the federal government.” 

The Section’s fifth sentence states that a “person is presumed to not be an alien who is unlawfully present in the United States if the person provides” a form of identification included in a prescribed list.

Arizona argues that its officers are only required to verify the immigration status of an arrested person before release if reasonable suspicion exists that the person lacks proper documentation. Paez refutes Arizona's argument by employing statutory analysis.

On its face, Paez writes, the text does not support Arizona’s reading of Section 2(B). The second sentence is unambiguous: “Any person who is arrested shall have the person’s immigration status determined before the person is released.” Ariz. Rev. Stat. Ann. § 11-1051(B) (2010). 

The all encompassing “any person,” the mandatory “shall,” and the definite “determined,” make this provision incompatible with the first sentence’s qualified “reasonable attempt . . . when practicable,” and qualified “reasonable suspicion.” In addition, the opinion says, Arizona’s reading creates irreconcilable confusion as to the meaning of the third and fifth sentences.

The Ninth Circuit agrees with the district court that the reasonable suspicion requirement in the first sentence does not modify the plain meaning of the second sentence. Thus, Section 2(B) requires officers to verify — with the federal government — the immigration status of all arrestees before they are released, regardless of whether or not reasonable suspicion exists that the arrestee is an undocumented immigrant.

The Ninth Circuit is required to determine the purpose of Congress and then determine if the Congress legislated in an area typically and traditionally occupied by the States. The Ninth Circuit concluded that The states have not traditionally occupied the field of identifying immigration violations so they did not apply a presumption against preemption for Section 2(B).

Paez began his inquiry into Congressional purpose by focusing on 8 U.S.C. § 1357(g) of the INA. That section is titled "Performance of immigration officer functions by State officers and employees.”

Congress, Paez says, has instructed under what conditions state officials are permitted to assist the Executive in the enforcement of immigration laws. Congress has provided that the Attorney General “may enter into a written agreement with a State . . . pursuant to which an officer or employee of the State . . . who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States . . . may carry out such function.” 8 U.S.C. § 1357(g)(1). Subsection (g)(3) provides that “in performing a function under this subsection, an officer . . . of a State . . . shall be subject to the direction and supervision of the Attorney General.” 8 U.S.C. § 1357(g)(3). Subsection (g)(5) requires that the written agreement must specify “the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual .”

The provisions of the INA, according to Paez, demonstrate that Congress intended for states to be involved in the enforcement of immigration laws under the Attorney General’s close supervision. Not only must the Attorney General approve of each individual state officer, he or she must delineate which functions each individual officer is permitted to perform.

The Court of Appeals interprets subsection (g)(10)(B) to mean that when the Attorney General calls upon state and local law enforcement officers—or such officers are confronted with the necessity—to cooperate with federal immigration enforcement on an incidental and as needed basis, state and local officers are permitted to provide this cooperative help without the written agreements that are required for systematic and routine cooperation.

Similarly, the Court of Appeals interprets subsection (g)(10)(A) to mean that state officers can communicate with the Attorney General about immigration status information that they obtain or need in the performance of their regular state duties. But subsection (g)(10)(A) does not permit states to adopt laws dictating how and when state and local officers must communicate with the Attorney General regarding the immigration status of an individual. Subsection (g)(10) does not exist in a vacuum, Paez writes; Congress enacted it alongside subsections (g)(1)-(9) and we therefore interpret subsection (g)(10) as part of a whole, not as an isolated provision with a meaning that is unencumbered by the other constituent parts of § 1357(g).9

Delivering the bottom line Paez writes that in sum, 8 U.S.C. § 1357(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General — to whom Congress granted discretion in determining the precise conditions and direction of each state officer’s assistance.

The Court of Appeals found it particularly significant for the purposes of the present case that this discretion includes the Attorney General’s ability to make an individual officer’s immigration enforcement duties permissive or mandatory. 8 U.S.C. § 1357(g)(5).

Arizona's SB1070 Section 2(B) sidesteps Congress’ scheme for permitting the states to assist the federal government with immigration enforcement. Through Section 2(B), Arizona has enacted a mandatory and systematic scheme that conflicts with Congress’ explicit requirement that in the “performance of immigration officer functions by State officers and employees,” such officers “shall be subject to the direction and supervision of the Attorney General.” 8 U.S.C. § 1357(g)(3). Section 2(B) therefore interferes with Congress’ scheme because Arizona has assumed a role in directing its officers how to enforce the INA.

The Court of Appeals is not aware of any INA provision demonstrating that Congress intended to permit states to usurp the Attorney General’s role in directing state enforcement of federal immigration laws.

Arizona argues that in another INA provision, “Congress has expressed a clear intent to encourage the assistance from state and local law enforcement officers,” citing 8 U.S.C. § 1373(c). That section, Paez writes, creates an obligation, on the part of the Department of Homeland Security (DHS), to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual . . . for any purpose authorized by law.”

The Court of Appeals agree that § 1373(c) demonstrates that Congress contemplated state assistance in the identification of undocumented immigrants. We add, however, that Congress contemplated this assistance within the boundaries established in § 1357(g), not in a manner dictated by a state law that furthers a state immigration policy.

The Heart of the Ruling

The Ninth Circuit finds ample rationale for applying the federal preemption doctrine. Paez writes that by imposing mandatory obligations on state and local officers, Arizona interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents. As a result, Section 2(B) interferes with Congress’ delegation of discretion to the Executive branch in enforcing the INA.

S.B. 1070 Section 2(B) “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” as expressed in the aforementioned INA provisions. The law subverts Congress’ intent that systematic state immigration enforcement will occur under the direction and close supervision of the Attorney General. Furthermore, the mandatory nature of Section 2(B)’s immigration status checks is inconsistent with the discretion Congress vested in the Attorney General to supervise and direct State officers in their immigration work according to federally-determined priorities.

In addition to Section 2(B) standing as an obstacle to Congress’ statutorily expressed intent, the record unmistakably demonstrates that S.B. 1070 has had a deleterious effect on the United States’ foreign relations, which weighs in favor of preemption. See generally Garamendi, 539 U.S. 396 (finding obstacle preemption where a State law impinged on the Executive’s authority to singularly control foreign affairs); Crosby, 530 U.S. 363 (same). In Garamendi, the Court stated that “even . . . the likelihood that state legislation will produce something more than incidental effect in conflict with express foreign policy of the National government would require preemption of the state law.”

Actual Foreign Policy Problems

The record before this court demonstrates that S.B. 1070 does not threaten a “likelihood . . . [of] producing] something more than incidental effect;” rather, Arizona’s law has created actual foreign policy problems of a magnitude far greater than incidental. Garamendi, 539 U.S. at 419 (emphasis added). Thus far, the following foreign leaders and bodies have publicly criticized Arizona’s law: The Presidents of Mexico, Bolivia, Ecuador, El Salvador, and Guatemala; the governments of Brazil, Colombia, Honduras, and Nicaragua; the national assemblies in Ecuador and Nicaragua and the Central American Parliament; six human rights experts at the United Nations; the Secretary General and many permanent representatives of the Organization of American States; the Inter-American Commission on Human Rights; and the Union of South American Nations.

In addition to criticizing S.B. 1070, Mexico has taken affirmative steps to protest it. As a direct result of the Arizona law, at least five of the six Mexican Governors invited to travel to Phoenix to participate in the September 8-10, 2010 U.S. - Mexico Border Governors’ Conference declined the invitation. The Mexican Senate has postponed review of a U.S.-Mexico agreement on emergency management cooperation to deal with natural disasters.

Relying on the record, and testimony from Deputy Secretary of State James B. Steinberg, the Ninth Circuit found that these factors persuade us that Section 2(B) thwarts the Executive’s ability to singularly manage the spillover effects of the nation’s immigration laws on foreign affairs.

Finally, Paez writes, the threat of 50 states layering their own immigration enforcement rules on top of the INA also weighs in favor of preemption. The Court of Appeals cites Hines v. Davidowitz on this point:

The Federal Government, representing as it does the collective
interests of the forty-eight states, is entrusted with full and exclusive
responsibility for the conduct of affairs with foreign sovereignties.
“For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.” Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference.
The Court of Appeals concluded that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 2(B) would be valid, and it is likely to succeed on the merits of its challenge. That's the inconceivable standard, it is inconceivable that any application of SB 1070 passes Constitutional muster. The district court did not abuse its discretion by concluding the same.

Part Three of this series will focus on Judge Paez's analysis of Section 3 of SB1070.

Wednesday, April 13, 2011


In a split decision from a three judge panel of the Ninth Circuit Court of Appeals the of Arizona's Federal Judge Susan Bolton has been upheld in the case of the United States v. Arizona, the SB1070 case. The panel produced three written opinions, the first by Judge Richard Paez, a concurring opinion by Judge John T. Noonan, and a dissent from Judge Carlos T. Bea.

Judge Richard Paez

Judge Richard Paez, previously served on the Federal Bench in Los Angeles. Paez began his career representing poor people as a staff attorney for California Rural Legal Assistance and then for the Western Center on Law and Poverty. Paez was the executive director for litigation for the Legal Aid Foundation of Los Angeles before Governor Jerry Brown elevated him to the municipal bench in L.A.

Judge John T. Noonan

Judge John T. Noonan worked as Special Staff to the United States National Security Council, assisting National Security Advisor Robert Cutler from 1954-1955. He then entered private practice, working for the Boston law firm of Herrick Smith Donald Farley & Ketchum from 1955 until 1960. After leaving private practice Noonan became a professor of law first at Notre Dame then at the University of California at Berkeley. He was appointed to the Court of Appeals to fill a newly created seat by President Reagan.

Judge Carlos T. Bea

Judge Carlos T. Bea was born in Spain and emigrated with his parents to Cuba in 1939. He was a member of the Cuban basketball team in the Helsinki Olympics in the summer of 1952. He then emigrated to the United States and became a naturalized citizen in 1959. He began a private practice of law in 1958. In 1990 he became a trial judge on the San Francisco Superior Court. He was appointed to the Ninth Circuit Court of Appeal in 2003.

These opinions provide more ideas to digest than can be reasonably commented on in one blog posting. I will divide the details into several postings. The bottom line is that by a 2 to 1 margin Judge Bolton has been sustained by the Court of Appeals.

Judge Paez began his discussion with the Supremacy Clause, U.S. Const. art. VI, cl. 2, as the source of the federal preemption doctrine. Citing Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009), he framed the arguments by which state law must yield to federal law. This analysis:

[M]ust be guided by two cornerstones of [theSupreme Court’s] pre-emption jurisprudence. First, the purpose of Congress is the ultimate touchstone in every pre-emption case. . . . Second, [i]n all preemption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied,  . . .[courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.
Where Congress has not explicitly provided for preemption state law must give way in two specific areas. First is when Congress intends to occupy the field. The second is where Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute. Paez writes that "Conflict preemption, in turn, has two forms: impossibility and obstacle preemption. Impossibility preemption exists where it is impossible for a private party to comply with both state and federal law.

Obstacle preemption exists where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

To determine whether obstacle preemption exists, the Supreme Court has that instructed that the federal judiciary employ its judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.

The Salerno Rule & Arizona's Mistake

The facial challenge standard rule established in United States v. Salerno, 481 U.S. 739 (1987) is what I have been referring to as the inconceivable standard. Thus, under Salerno, “the challenger must establish that no set of circumstances exists under which the Act would be valid. Paez takes Arizona's sophistry to task for its approach to the Salerno Rule.
We stress that the question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way. Arizona’s framing of the Salerno issue assumes that S.B. 1070 is not preempted on its face, and then points out allegedly permissible applications of it. This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.(emphasis added)
The Court of Appeals concluded that the relevant provisions of S.B. 1070 facially conflict with Congressional intent as expressed in provisions of the Immigration and Naturalization Act [INA]. If that were not the case the Court of Appeals would have next considered whether the statute could be applied in a constitutional manner.

Judge Paez then employs a section by section analysis of those parts of Arizona SB1070 . This is where the next blog posting on this topic will begin.

Saturday, April 9, 2011


When the Republicans say we are broke they confuse me because they then say we don't have a revenue problem. Like Hell we don't have a revenue problem. When the Republicans bend over and let Corporate America ( I mean Corporate World - after all I wasn't asleep when the United States Chamber of Commerce broke the law and let foreign funds corrupt Election 2010) we assured ourselves of a revenue problem.

It is unconscionable for the House Republican Conference to try to balance the budget by taking Elmo off the air. It is unconscionable for the Republican Conference to try to balance the budget by letting Big Coal and Big Oil go on a massive pollution spree. It is unconscionable for the Republican Conference to have voted against the Defense Appropriations Bill of the last Congress and to turn around and use the families of our troops as pawns in their despicable attempt to devastate America's Safety Net. That's the Safety Net Ronald Reagan promised to keep intact. It is unconscionable for the Republican Conference to inflict stress and fear on America's most vulnerable women by threatening to defund Title X. That is where American women of modest, or no, means go for basic health care. The Republican Conference has acted without conscience or concern for the least among us. Oh! Would that they could screw their courage to sticking point and stand so forthrightly against the monied classes which fuel their insanity.

They have no shame, they have nothing about which they should be proud. I pray on Judgment Day I am not standing near them lest I be wrongly considered.

We have been treated to political theatre of the highest order. These Republicans did not intend to shut down the Federal Government. Not now anyway. They intend to inflict pain on working people. They intend to pave a way back to power by brokering the most radical concepts of Voodoo Economics.

Let's set the record straight. Wealth does not trickle down. Wealth is congested at the top by the wealthy. That which trickles down is the reason we make emergency calls to the plumber.

The wealthy have purchased the Republican Party. The Republicans are willing to demagogue about anything as long as it benefits their wealthy masters.

In Election 2010 it was reported that Corporate America was sitting on the sidelines with about a Trillion Dollars. They had the Bush Era tax cuts. They were not using that money to create jobs. They were holding back, hoping for a Republican victory so that they could move back into the marketplace and cut another fat hog. Make no mistake about it Corporate America's last big binge took a quarter of all available wealth out of America.

Republicans don't want us to get a fair break. Republicans want the rich to get richer and the poor to pay the tab.

I have had a belly full of this Republican Bullshit! This budget deal may not yet be a budget deal because Senate Democrats and House Republicans and President Obama say it is. Two very angry parts of the equation may find this too bitter to swallow: the Tea Party and the House Democrats. I am not yet willing to concede this event as a path to prosperity. It does not appear to make America's working folk prosper.

In the words of the late Senator Edward Moore "Teddy" Kennedy: "For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives and the dream shall never die." Amen, the dream lives on!

Saturday, April 2, 2011


In Memoriam
Robert Star "Robb" McClary
1948 - 2010

A couple of years ago I was talking to my friend Julie from Norfolk, Ne. We share a common political vision, making us Democrats. In the midst of that conversation I remarked that I missed the real Republicans. Julie was stunned and said "but I thought you were a Democrat!"

It is difficult to briefly mark the transformation of the GOP over the past four decades. As a young man I went to college in the buckle of the Bible Belt, Springfield, Mo., where being Baptist or Assembly of God was as common as being a Republican. I didn't fit into any of the above categories. Yet from the formerly Southwest, now Missouri State, formerly College, now University I rose in the ranks of College Democrats to two distinctive offices. I was the State Chairman of the College Democrats of Missouri and the State Auditor for the Missouri Intercollegiate Student Legislature (MISL).

Today's recollection is not to imply that political discourse forty some years ago was more polite and cordial. Those were rough and raucous times. The radical fringe of politics was fraying on the left. Today the fabric of society is under threat from the radicalization of the right.

There was a difference, at least among my peer group of student Republicans and Democrats. We decidedly didn't dislike one another. We were friends. When the game was on we stood our ground, made our arguments, and each side fought the good fight. Leaving the political arena we left animosity and discord behind. After all politics was a vehicle to shape and inform our world. Politics was not an all consuming cancer devouring our lives and civility in the process. Realistically we spent more together in our college lives other than those few moments when we sparred on the training ground. Robb McClary and I briefly lived in the same dormitory, a place called Freudenberger.

Robb was a College Young Republican, he was active in MISL. The year that Robb became the Governor of MISL was when I was elected Auditor. The group was historically dominated by College Republicans, but in the fairness of the age the minority party was assured one statewide official. It was always Auditor.

I remember Robb McClary as a prototypical College Republican. He was a good guy, a damn nice guy, not haughty or arrogant, but approachable and friendly. Robb McClary was the kind of guy you knew you could rely on as a friend. Now that is not to say that he and I were bosom buddies and hung out all the time. But we had our moments.

Occasionally Robb and I would head off with Professor Gordon Friedman, of the Political Science Department, to a little dive adjacent to the rail tracks north of College Street in Springfield called the Depot Inn. We'd share a pitcher or two beer and have a pizza. Robb and Gordon would always get into a friendly tiff over the last slice. Those were Robb McClary's most acrimonious moments. He was generally affable and more than willing to work problems out rather than engage in bombastic belittlement barrages.

My mind's eye still remembers the last time I saw Robb McClary. He was bounding out of Freudenberger, a tennis sweater draped on his shoulders, and as he rushed by he was saying goodbye. He was heading back home, then on to grad school. By way of the grapevine I heard he had gone into the business of city management. The last time I knew someone said he was in Bullhead City, Az.

Today I have a fourteen year old grandson who is a freshman honor student in high school. While laundering his dress shirt, the one he wears for forensics, I noticed the beginning of a stain at the collar and cuffs. I grabbed some liquid detergent and applied it to the affected areas. Later on I talked to him about being mindful of these things. Then I paused to think about when I learned this little "Hint from Heloise."

Seems Heloise didn't have anything to do with it. I learned Robb's remedy to "ring around the collar." One summer Robb and I were on the same floor of the dormitory across the street, Blair-Shannon, (Freudenberger didn't host students during the summer term). As I was speeding down the hall to go down the stairs I caught a glimpse of Robb McClary in one of the utility rooms on the floor. I hit the brakes, backed up, and said "Hey what are you doing?" There stood Robb McClary with a bottle of dish detergent applying soap to his collars and cuffs. He explained the drill, which I have copied for decades.

My grandson has his first case of ring around the collar and that made me pause and think about an old college friend. The world is a little less friendly with the passing of Robb McClary. He was a good person, a good friend, a good adversary, and by all means he was a good Republican.

Robb McClary passed away April 13, 2010. He is missed.