USA v. ARIZONA, THE SB 1070 CASE, STILL ON HOLD AT HIGH COURT

Yesterday the Supreme Court issued an 89 page "Order List", taking care of much of the administrative housekeeping that accrued during their recess.  USA v. Arizona, the SB 1070 case on appeal from the Ninth Circuit was not on that list. 

You can find the Order List at: http://www.supremecourt.gov/orders/courtorders/100311zor.pdf.

Here is a sample of the actions the Court took.

CHINESE DAILY NEWS, INC. V. WANG, LYNN, ET AL.

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011). Justice Breyer took no part in the consideration or decision of this petition. This is a Fair Labor Standards Act and a Class Action Rule 23 case,

In Dukes the Court said:

1. The certification of the plaintiff class was not consistent with Rule 23(a).

(a) Rule 23(a)(2) requires a party seeking class certification to prove that the class has common “questions of law or fact.” Their claims must depend upon a common contention of such a nature thatit is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to thevalidity of each one of the claims in one stroke. Here, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 876, and respondents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question.

 (b) General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, describes the proper approach to commonality. On the facts of this case, the conceptual gap between an individual’s discrimination claim and “the existence of a class of persons who have suffered the sameinjury,” id., at 157–158, must be bridged by “[s]ignificant proof that an employer operated under a general policy of discrimination,” id., at 159, n. 15. Such proof is absent here. Wal-Mart’s announced policy forbids sex discrimination, and the company has penalties for denials of equal opportunity. Respondents’ only evidence of a general discrimination policy was a sociologist’s analysis asserting that Wal-Mart’s corporate culture made it vulnerable to gender bias. But because he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.” Pp. 12–14. (c) The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of giving local supervisors discretion over employment matters. While such a policy could be the basis of a Title VII disparate-impact claim, recognizing that a claim “can” exist does not mean that every employee in a company with that policy has a common claim. In a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way without some common direction. Respondents’ attempt to show such direction by means of statistical and anecdotal evidence falls well short.

2. Respondents’ backpay claims were improperly certified under Rule 23(b)(2).

(a) Claims for monetary relief may not be certified under Rule23(b)(2), at least where the monetary relief is not incidental to therequested injunctive or declaratory relief. It is unnecessary to decide whether monetary claims can ever be certified under the Rule because, at a minimum, claims for individualized relief, like backpay, are excluded. Rule 23(b)(2) applies only when a single, indivisible remedy would provide relief to each class member. The Rule’s history and structure indicate that individualized monetary claims belong instead in Rule 23(b)(3), with its procedural protections of predominance, superiority, mandatory notice, and the right to opt out.

 

 

MURPHY, CHARLES M. V. KOLLAR-KOTELLY, JUDGE, USDC DC

Because the Court lacks a quorum, 28 U.S.C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition. This is a sad case about an honorable man who served our nation well in World War II and Korea as a combat pilot. In 1959 he was placed on "Retired Reserve" status. That status, Murphy contends, kept him from receiving promotions and earning full retirement benefits. In 1992 he began his legal crusade and seems unable to accept that he has lost his case. He accuses all of the judges who have had any part in the decisions of his case with judicial malpractice. The case comes from the Middle District of Tennessee.

 

 

MOUNDRIDGE, KS, ET AL. V. EXXON MOBIL CORP., ET AL.

The motion for leave to file a petition for a writ of certiorari under seal with redacted copies for the public record is granted. Justice Alito took no part in the consideration or decision of this motion.  This is an antitrust action invoking both the Sherman Act and the Robinson-Patman Act.  The Sherman Act was a favorite tool for President Teddy Roosevelt in the 1890's.  The Robinson-Patman hearkens back to the laws following the Great Depression and prohibits certain anticompetitive practices.  Moundridge is on US Highway 81 between Newton, Ks. and McPherson, Ks; making it Northeast of Hutchinson, Kansas.

PETITION FOR CERTIORARI FILED IN SB 1070 CASE

The Tucson Sentinel has posted a copy of Arizona's Petition for Certiorari, which Paul Clement filed with the Court today.  The link to see the petition, which is not yet available from the Court is http://www.tucsonsentinel.com/documents/doc/081011_sb1070_supreme_court_doc/.

I am going to go read it.

USA v. ARIZONA - SB 1070 PETITION FOR CERTIORARI DUE IN SEPTEMBER

The Supreme Court has rules about procedure.  Rule 13 sets the timeline for filing a petition for a writ of certiorari, one of two methods of getting a case before the Court.  The other is by a direct appeal authorized by law, a right of appeal.  Rule 13 says that the party seeking review must file their petition within ninety days from the date of final judgment in the court below (either a state court of last resort or a United States court of appeals).

The Court of Appeals for the Ninth Circuit issued its opinion in USA v. Arizona, the SB 1070 case, on March 11th. That was not the trigger starting the clock running on the need to file for certiorari.  On June 29th the Ninth Circuit issued its mandate on their opinion.  That's when the clock began ticking.

The combination of the Arizona Republic and Phoenix's NBC affiliate KPNX (local channel 12) incorrectly reported the date by which the petition for certiorari needed to filed with the Court.  On May 9th AZCENTRAL.com, the website for the paper and station, reported that the petition needed to be filed by July 11th.  See, http://www.azcentral.com/news/election/azelections/articles/2011/05/09/20110509sb1070-appeal-arizona-next-step09-ON.html.

KVOA.com, Tucson's NBC affiliate, is reporting on their web page that former Solicitor General Paul D. Clement is the lead counsel for Arizona before the Court.  See, http://www.kvoa.com/news/federal-court-hears-arguments-regarding-arizona-s-counterclaim-in-sb-1070-case/.

Calculating days to determine when Clement must have the petition filed is governed by Rule 6 of the Federal Rules of Civil Procedure.  You don't count June 29th, but begin counting on June 30th.  You never count the date of final judgment. September 27th is a Tuesday, so there is no issue about the last day being a weekend day, nor is September 27th a holiday.

Mr. Clement has until 2:00 p.m. to get the petition for certiorari to the Court September 27th.  In these awkward post-911 days the Court has to have security scrutinize all of the fillings.  Here is how the Court says documents have to be filed:

A case-related document delivered in an open container or an open box to the police booth at the North Drive of the Supreme Court building by 2:00 p.m. on a day that the Court is open for business will be delivered to the Clerk's office by the close of business that day.  See, http://www.supremecourt.gov/deliveryofdocuments.aspx.

Generally, the Court hears and typically decides whether or not to grant certiorari within five days after the petition is filed during a regular term of the Court.  They can also re-list the petition on their calendar if they want the input from the Solicitor General.  Under the "Rule of Four" it takes the votes of four members of the Court to grant certiorari.

The next term of the Supreme Court begins Monday October 3rd. the first Conference will be held on the afternoon of Wednesday October 5th.  Stay tuned, the Court will post an order.  On the opening day of the term it is not uncommon for the  Court to issue summary disposition orders relating to certiorari.  We won't know whether the Court will grant certiorari or deny the petition until October.

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

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.  

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

Judge Bea starts with the premise that determining Congressional intent is the touchstone from which judicial inquiry of America's immigration laws and Arizona's SB1070 must begin. There he agrees with the majority in the way two persons on opposite sides of a fence on the otherwise open range see that fence.

Judge Bea tips his hand early in his lengthy concurrence/dissent. He frames the issue differently than did Judge Paez. Bea says "[t]hus, this court is tasked with determining whether Congress intended to fence off the states from any involvement in the enforcement of federal immigration law."

The way a legal question is framed often leads to an obvious conclusion. Bea is not asking what are the perimeters Congress established whereby the States may become involved with enforcement of federal immigration law. In Wild West fashion Bea assumes that the range is either open or fenced, either the States can't engage or they may Willy-nilly do as they please.

Bea feathers the framing of the legal issue writing "[m]oreover, it is the enforcement of immigration laws that this case is about, not whether a state can decree who can come into the country, what an alien may do while here, or how long an alien can stay in this country. Bea is correct in this part of his analysis but he conveniently ignores the impact of ad hoc immigration enforcement schemes by the States on the uniform federal scheme written by Congress and enforced by the Executive branch.

Judge Bea seems to want to hang his hat on 8 U.S.C. § 1357(g)(10)(B) which says:

Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State—

(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or

(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.

The question now remains whether Judge Bea sees SB1070 as cooperation with the Attorney General. I am fairly certain that Attorney General Eric Holder sees SB1070 as anything but cooperative.

Does SB1070 reflect and mirror the laws of New Jersey and Rhode Island? That is Judge Bea's opinion. There are significant differences. Most glaring is that neither New Jersey nor Rhode Island enacted a statute. Arizona's SB1070 is statutory law, and that law has an express intent which strikes in stark defiance at the uniform federal scheme adopted by Congress and enforced by the President. Arizona's intent is attrition through enforcement. That statutory intent which Judge Bea is ignoring distinguishes the way Judges Bea and Noonan see this case.

Here are those New Jersey and Rhode Island directives, which come from Judge Bea's footnotes (always remember and never forget to read the footnotes).

In August 2007, the attorney general of New Jersey issued a directive which stated:

When a local, county, or State law enforcement officer makes an
arrest for any indictable crime, or for driving while intoxicated,
the arresting officer or a designated officer, as part of the booking
process, shall inquire about the arrestee’s citizenship, nationality
and immigration status. If the officer has reason to believe that
the person may not be lawfully present in the United States, the
officer shall notify [ICE] during the arrest booking process.

Anne Milgram, Attorney General Law Enforcement Directive No. 2007-3.

Rhode Island Executive Order 08-01, “Illegal Immigration Control
Order,” issued March 27, 2008, states at paragraph 6:

It is urged that all law enforcement officials, including state and
local law enforcement agencies take steps to support the enforcement of federal immigration laws by investigating and determining the immigration status of all non-citizens taken into custody, incarcerated, or under investigation for any crime and notifying federal authorities of all illegal immigrants discovered as a result of such investigations.

For his part Judge Paez sees SB1070 much differently than does Judge Bea. In Paez's analysis of §2 (B) he addressed the distinction between the majority and minority views in his footnote number 7.

The dissent claims that Section 2(B) “merely requires Arizona officers to inquire into the immigration status of suspected” undocumented immigrants; that “simply informing federal authorities of the presence of an[undocumented immigrant]. . . represents the full extent of Section 2(B)’s limited scope.” Dissent at 4873-74. Section 2(B) requires much more than mere inquires—it requires that people be detained until those inquiries are settled, and in the event of an arrest, the person may not be released until the arresting agency obtains verification of the person’s immigration status. Detention, whether intended or not, is an unavoidable consequence of Section 2(B)’s mandate.

Next we will look at Judge Bea's legal analysis beginning with United States v. Salerno and the law about facial challenges and what I call the Inconceivable Standard.

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 SIX

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.

Conclusion

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.

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

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;

and

(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.

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 THREE

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.

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.

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

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.