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 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.