USA v. ARIZONA - THE SB1070 CASE ON APPEAL - PART SEVEN

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.

USA v. ARIZONA - THE SB1070 CASE ON APPEAL - PART FOUR

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.



USA v. ARIZONA - THE SB1070 CASE ON APPEAL - PART TWO

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.