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 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.