Judge Bea concurs with the majority as to §§ 3 and 5(C) as to their result. Where Bea differs with the majority is on §§ 2(B) and 6. Section 2(B) pertains to Cooperation and assistance in enforcement of immigration laws; indemnification. Section 6 is the Arizona SB 1070 provision permitting warrantless arrests.
Judge Paez, like Judge Bea pivots his legal analysis from a case called United States v. Salerno. Paez sees the Salerno standard as requiring the challenger to establish that no set of circumstances exists under which the Act would be valid. That's what I refer to as the inconceivable standard.
Judge Bea begins from the inconceivable standard. However Bea finds a set of circumstances under which no complexity existed, murder. If an illegal alien commits murder then that alien is subject to murder. Bea fails to recognize that the sweep of Section 6 goes far beyond his hypothetical. SB1070 is, under Bea's analysis surplusage.
Judge Paez immediately refutes Judge Bea in his footnote 20. "Arizona argues that we should construe section 6 so as to require officers to confirm with federal authorities that an alien has committed a public offense that makes the alien removable before making a warrantless arrest under section 6.
Even if we interpreted Section 6 as Arizona suggests, the provision would still permit more intrusive state arrests than Congress has sanctioned, because it permits arrests on the basis of misdemeanor removability, which Congress has not provided for in 8 U.S.C. § 1252c. Further, even if a law enforcement officer confirmed with the federal government that an individual had been convicted of murder—a felony that would clearly result in removability, see 8 U.S.C. § 1227(a)(2)(A)(iii)—Section 6 would still expand the scope of § 1252c by permitting warrantless arrests." (emphasis added).
Honestly, I have to say that Judge Bea seems to have gone far from orthodox legal analysis when it comes to his opinion regarding Section 2(B). In his mind the States may assist federal law enforcement with immigration enforcement and no written agreement is needed. Well, that's true. But really Judge Bea, there is big difference between assisting and meddling. I reckon that is why the federal statute outlined a set of perimeters for state assistance. The cooperation between the federal government and the governments of the States is not limited by the federal statute. Neither is the language in the federal statute carte blanche for the States to devise their own immigration schemes.
Judge Paez's opinion provides an example of cooperation in footnote 21. "The dissent argues that “the Supreme Court explicitly recognized—in one of our California cases—that state police officers have authority to question a suspect regarding his or her immigration status.” Dissent at 4887 (citing Muehler v. Mena, 544 U.S. 93, 101 (2005)). The dissent mischaracterizes the issue in Mena and the facts of the case in order to make it appear relevant to the case before us now. The Court explained that “[a]s the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.”
In summarizing the facts of the case, the Court explained that,
“[a]ware that the West Side Locos gang was composed primarily of illegal immigrants, the officers had notified the Immigration and Naturalization Service (INS) that they would be conducting the search, and an INS officer accompanied the officers executing the warrant. During their detention in the garage, an officer asked for each detainee’s name, date of birth, place of birth, and immigration status. The INS officer later asked the detainees for their immigration documentation.”
Thus, contrary to the dissent’s contention, Mena did not recognize that state officers can enforce federal civil immigration law with no federal supervision or involvement." (emphasis added).
Unfortunately, Judge Bea pinned his Section 2(B) analysis to Lewis Carroll's Through the Looking Glass and What Alice Found There, in THE ANNOTATED ALICE: THE DEFINITIVE EDITION 213 (Martin Gardner ed., Norton Publishers) (2000). Judge Paez refuses to follow Judge Bea into fantasy land.
In his footnote 6 Paez says "We have carefully considered the dissent and we respond to its arguments as appropriate. We do not, however, respond where the dissent has resorted to fairy tale quotes and other superfluous and distracting rhetoric. These devices make light of the seriousness of the issues before this court and distract from the legitimate judicial disagreements that separate the majority and dissent." (emphasis added).
A dispute among the Circuits has reared its head during this case. The majority's view conflicts with the Tenth Circuit's. See United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999). In Vasquez-Alvarez, the Tenth Circuit affirmed the denial of a motion to suppress where the defendant’s “arrest was based solely on the fact that Vasquez was an illegal alien.” The arrest did not comply with the requirements of 8 U.S.C. §1252c, and the defendant argued that the evidence found as a result of that arrest should be suppressed. The Tenth Circuit disagreed, holding that §1252c “does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal laws, including immigration laws.”
The majority says the pertinent part of the federal statute " 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."
Footnote 24 provides more detail on the lack of inherent power of the States.
"The U.S. Department of Justice’s Office of Legal Counsel (“OLC”) issued a memorandum in 2002—at which time OLC was headed by then Assistant Attorney General Jay S. Bybee, now a United States Circuit Judge, as Arizona emphasizes—concluding that (1) the authority to arrest for violation of federal law inheres in the states, subject only to preemption by federal law; (2) a 1996 OLC memo incorrectly concluded that state police lack the authority to arrest immigrants on the basis of civil deportability; and (3) 8 U.S.C. §1252c does not preempt state arrest authority.
"To conclude that §1252c does not preempt inherent state arrest authority, the OLC memo relies entirely on the Tenth Circuit’s decision in Vasquez-Alvarez—the logic of which we have already rejected.
"The dissent quotes from the 2002 OLC memo in claiming that § 1252c is not made superfluous by interpreting it to have no preemptive effect. We are neither persuaded, nor bound by the arguments in this memo. It is an axiomatic separation of powers principle that legal opinions of Executive lawyers are not binding on federal courts. The OLC memo itself demonstrates why this is: the OLC’s conclusion about the issue in the 2002 memo was different in 1996 under the direction of President Clinton, and was different in 1989, under the direction of President George H.W. Bush.
"The dissent also claims that “Congress has authority to enact legislation which is designed merely to clarify, without affecting the distribution of power.” The dissent cites language from the Reaffirmation—Reference to One Nation Under God in the Pledge of Allegiance, stating, “An Act to reaffirm the reference to one Nation under God.” Pub. L. No. 107-293 (2002). The dissent’s argument is unavailing, as § 1252c contains no reference to anything remotely related to a “reaffirmation” of a state’s alleged inherent authority to enforce the civil provisions of federal immigration law."
Another battle line was drawn on the question of inherent powers of a State. Do the States have inherent power to arrest only for violations of federal criminal statutes, or do the State have authority to arrest for violations of federal civil statutes. The Tenth Circuit favors inherent authority for both categories. The Ninth Circuit does not see a legal basis for the States to go arresting persons for violations of the federal civil code.
I think Judge Bea's dissent was weak and far reaching. Judge Noonan by contrast provided a far more serious, and seriously reasoned opinion.
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