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.

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