Injunction Of AZ SB 1070 Based On Preemption

From the decision (PDF):

Finding a state law related to alien registration to be preempted, the Supreme Court in Hines observed that Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national . . . system[] and to leave them free from the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. [. . .T]he United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74.

[More . . .]

[. . .] The United States contends that the impact on lawfully-present aliens of the requirement that law enforcement officials, where practicable, check the immigration status of a person lawfully stopped, detained, or arrested where there is reasonable suspicion that the person is an alien and is unlawfully present will be exacerbated by several factors. (Id. at 28- 29.) First, the United States suggests that the impact on lawfully-present aliens is enhanced because this requirement applies to stops for even very minor, non-criminal violations of state law, including jaywalking, failing to have a dog on a leash, or riding a bicycle on the sidewalk. (Id. at 28.) Also, the United States argues that the impact will be increased because other provisions in S.B. 1070 put pressure on law enforcement agencies and officials to enforce the immigration laws vigorously.10 (Id. at 29.) Hines cautions against imposing burdens on lawfully-present aliens such as those described above.See 312 U.S. at 73-74. Legal residents will certainly be swept up by this requirement [. . .]

[. . .] Therefore, for the purposes of preliminary injunction analysis, the Court concludes that the United States has demonstrated a likelihood of success on its challenge to the first sentence of Section 2(B). Section 2(B) in its entirety is likely preempted by federal law.

And so on. In essence, this was a slam dunk for the preemption argument, relying on Hines. I'll keep reading and analyzing.

Continuing from the decision:

Essentially, Section 3 makes it a state crime to violate federal registration laws and provides for state prosecutions and penalties for violations of the federal registration law. The United States argues that Section 3 is preempted because it interferes with comprehensive federal alien registration law, seeks to criminalize unlawful presence, and will result in the harassment of aliens. (Pl.’s Mot. at 34-39.) Arizona asserts that Section 3 neither conflicts with federal law nor regulates in a federally occupied field. (Defs.’ Resp. at 21-22.)“

[. . .] “[T]he power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation[;] . . . whatever power a state may have is subordinate to supreme national law.”Hines, 312 U.S. at 68. In Hines, the Supreme Court found that,

"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.

312 U.S. at 66-67. Hines also stated that a state statute is preempted where it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”Id. at 67. The Supreme Court determined in Hines that the purpose of the Federal Alien Registration Act was to “make a harmonious whole” and that the Alien Registration Act “provided a standard for alien registration in a single integrated and all-embracing system.”

The current federal alien registration requirements create an integrated and comprehensive system of registration. See id. (finding that the Alien Registration Act, the precursor to the current alien registration scheme, created a “single integrated and all- embracing system” of registration); 8 U.S.C. §§ 1201, 1301-06 (providing federal registration requirements and penalties). While the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens, De Canas, 424 U.S. at 358, the Supreme Court has also evaluated the impact of the comprehensive federal alien registration scheme and determined that the complete scheme of registration precludes states from conflicting with or complementing the federal law. Hines, 312 U.S. at 66-67. Section 3 attempts to supplement or complement the uniform, national registration scheme by making it a state crime to violate the federal alien registration requirements, which a state may not do “inconsistently with the purpose of Congress.” Hines, 312 U.S. at 66-67; see also A.R.S. § 13-1509(A).

[. . .] Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration. See Hines, 312 U.S. at 67. As a result, the Court finds that the United States is likely to succeed on its claim that Section 3 is preempted by federal law.14

Emphasis supplied.) Still all preemption all the time on the parts of the law that touch upon immigration status. The basic point is that immigration status is exclusively the province of the federal government once it has occupied the field, as it has for centuries frankly. This decision was a slam dunk.

If I find something different in the rest of the opinion, I will comment on it here.

Section 4 of the statute involved a technical change in the smuggling statute and did not appear to impinge of federal immigration law. I'll take a closer look to see if I am missing something.

On Section 5, the Court wrote:

Section 5 of S.B. 1070 creates A.R.S. § 13-2928(C), which 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.” This violation is a class 1 misdemeanor. A.R.S. § 13- 2928(F). The United States asserts that this provision “is preempted by Congress’s comprehensive scheme, set forth in [IRCA] for regulating the employment of aliens.” (Pl.’s Mot. at 42.) The United States argues that “IRCA reflects Congress’s deliberate choice not to criminally penalize unlawfully present aliens for performing work, much less for attempting to perform it.” (Id.) Arizona responds that “Congress could have, but chose not to, expressly preempt state and local laws that impose civil or criminal sanctions upon employees.” (Defs.’ Resp. at 25.) Arizona contends that, in an area of traditional state sovereignty such as employment, “[p]reemption cannot be lightly inferred.” (Id.) “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” De Canas, 424 U.S. at 356. Interpreting De Canas and considering a state law sanctioning employers who hire unauthorized workers, the Ninth Circuit Court of Appeals held that, “because the power to regulate the employment of unauthorized aliens remains within the states’ historic police powers, an assumption of nonpreemption appli[ed].” Chicanos Por La Causa I, 544 F.3d at 984 [. . .]

[. . . W]hile deliberate federal inaction does not always imply preemption, “[w]here 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.”P.R. Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988). [. . .] These “extant actions,” in combination with an absence of regulation for the particular violation of working without authorization, lead to the conclusion that Congress intended not to penalize this action, other than the specific sanctions outlined above.See P.R. Dep’t of Consumer Affairs, 485 U.S. at 503-04. Thus, the Court finds that Plaintiff is likely to succeed on its claim that Arizona’s new crime for working without authorization, set forth in Section 5(C) of S.B. 1070, conflicts with a comprehensive federal scheme and is preempted.

[. . .] [Federal] “extant actions,” in combination with an absence of regulation for the particular violation of working without authorization, lead to the conclusion that Congress intended not to penalize this action, other than the specific sanctions outlined above.See P.R. Dep’t of Consumer Affairs, 485 U.S. at 503-04. Thus, the Court finds that Plaintiff is likely to succeed on its claim that Arizona’s new crime for working without authorization, set forth in Section 5(C) of S.B. 1070, conflicts with a comprehensive federal scheme and is preempted.

(Emphasis supplied.) More of the same.

Now for something different, a part of the statute the judge upholds, rejecting the preemption argument. Here is the issue presented:

Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which makes it illegal for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. A.R.S. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States.Id. The United States asserts that this provision is preempted as an impermissible regulation of immigration and that the provision violates the dormant Commerce Clause. (Pl.’s Mot. at 44- 46.)18

I do not see how this is not also preempted but the Court ruled it so. Let's read what is said:

A.R.S. § 13-2929 does not attempt to regulate who should or should not be admitted into the United States, and it does not regulate the conditions under which legal entrants may remain in the United States. See De Canas, 424 U.S. at 355. Therefore, the Court concludes that the United States is not likely to succeed on its claim that A.R.S. § 13-2929 is an impermissible regulation of immigration.

This is pretty clearly nonsense. The provision is intended to discourage having an illegal in your car and, frankly, will lead to much mischief. this part is a problem. I will write a separate post on this part of the ruling.

Speaking for me only

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  • Display: Sort:
    This ruling only applies (5.00 / 1) (#3)
    by themomcat on Wed Jul 28, 2010 at 01:51:53 PM EST
    to the suit brought by the Justice Department. Judge Bolton has not yet ruled on any of the other law suits. I believe there are seven.

    Any equal protection analysis in there? (none / 0) (#1)
    by magster on Wed Jul 28, 2010 at 01:39:12 PM EST

    None (none / 0) (#2)
    by Big Tent Democrat on Wed Jul 28, 2010 at 01:45:00 PM EST
    Round 1 slight point advantage to (none / 0) (#4)
    by BTAL on Wed Jul 28, 2010 at 02:20:58 PM EST
    the feds.

    Round 15 will be with SCOTUS.

    Brings us back to do (none / 0) (#5)
    by diogenes on Wed Jul 28, 2010 at 04:04:06 PM EST
    Now it can again be asked--exactly why do the feds, who have the preemptive power, not authorize checks on the legal status of those the police come in contact with.  

    Because it's dangerous... (5.00 / 1) (#10)
    by kdog on Thu Jul 29, 2010 at 08:22:20 AM EST
    when a segment of our population has to fear law enforcement over lack of docs, that segment will not report real crime or cooperate with law enforcement in the investigation of real crime.

    It's a recipe for disaster.


    SB 1070 (none / 0) (#6)
    by stewlaw2009 on Wed Jul 28, 2010 at 07:40:57 PM EST
    I have written on this same topic for the Guardian UK.  Thanks so much for posting a copy of Bolton's decision, and for your informative textual analysis based on Hines.

    You seem pretty clear that this was a slam dunk from the start because of the presumed federal preemption.  You're even surprised that she didn't throw out the entire law, I take it.

    I have a lot of questions about the decision.  it seems to me that Arizona blew it by the way it wrote the law and a better packaged argument might have greater chances of success elsewhere?  Yes or no?

    For example, why doesn't the law simply state that based on "reasonable suspicion," aliens will be cited and asked to appear before a federal judge to determine whether they are indeed, deportable.  That means many and perhaps most people won't appear, but there will be a record of it, and the next time they are stopped, if they are, their failure to appear before a judge - and the outstanding warrant - will be grounds for deportation.

    What's wrong with that scheme?

    It seems to me this would satisfy Bolton's concern about the proposed law allowing mass detentions and warrantless stops and deportations.
    It would also give Arizona a stronger "deterrent" against millegla immigration, since a reasonable suspicion stop would put you in the system, so to speak.

    SB 1070 (none / 0) (#7)
    by stewlaw2009 on Wed Jul 28, 2010 at 07:46:59 PM EST
    Another point.

    Arizona currently is a signatory to the Secure Communities program, which uses a federal database in Arizona jails to screen illegal aliens at the time that they are booked, or arrested.  Fingerprints are sent to the feds to see if the criminal suspects have priors - and also to see if they are illegal.  

    So, why couldn't Arizona police use a portable version of that system out in the field, or simply bring the people they stop to a jail, and immediately verify whether they are deportable or not?

    They are DOING THIS NOW, and the system is being spread to jails nationwide.   It would not place the decision on deportation in the hands of state or local police, and would not require indefinite mass detentions.  The screening is done right away.

    SB 1070 (none / 0) (#8)
    by stewlaw2009 on Wed Jul 28, 2010 at 08:02:11 PM EST
    Third point - and I'll let you respond, if you would.

    You imply in your analysis that Hines and De Canas are two different kettles of fish?

    De Canas liberalized the arena of autonomous state immigration enforcement, you say, because it dealt with employment matters, which are more likely to be in the purview of states.

    Generally speaking, you imply, the presumption of federal pre-emption is stronger than this.

    I'm not sure how you sustain this argument?  Maybe you are right, but I do not know the foundation for this argument.  Can you say more?

    It seems to me that the key issue is really whether the feds have EXPRESSLY pre-empted state action, and if they haven't, states are generally on solid ground to come up with laws that complement and even extend federal law.

    We saw this in the Arizona legal Workers (or employer sanctions) case.  The key issue wasn't that it was an empoyment matter, but that the feds had explicitly limited the purview of its decision to monetary fines, as opposed to suspoension or revocation of business licenses, and the like.

    In other words, if Arizona had tried to pass an even tougher employer sanctions law that dealt with fines only, it would have been pre-empted by federal law.  What allowed it to escape was that licensing had been expressly NOT included in the federal law, yes?.

    In fact, I am unaware that the feds have EVER  made an argument for federal pre-emption of state immigration law enforcement as it applies to state police powers.  Have they?   Have the feds, in any of their laws, for example, Section 287 (g) of the INA or more recently, in Secure Communities, said that the standards used in these laws to determine reasonable suspicion, or that the priorities of enforcement (hard-core criminal aliens versus small-time misdemeanors offender) have to be upheld by states also.

    I don't think so, in fact.  So why would Bolton say that Arizona's criteria are pre-empted?  Presumably because she's arguing for implied pre-emption, as opposed to express pre-emption.

    Okay, fair enough, but what's the actual foundation for that argument?  Why is more agggressive state action presumed somehow to be pre-empted, even if it's not expressly pre-empted.

    I ask this because Bolton herself focused on this in the hearing.  She grilled the Justice Drepartment lawyer abut why Arizona wasn't free t pursue a more aggressive version of police enforcement, just as it does with its more aggressive version of employer sanctions?

    I don't think what you have summarized provides us with an adequate answer to this question.

    Many thanks for fielding these...

    SB 1070 (none / 0) (#9)
    by stewlaw2009 on Wed Jul 28, 2010 at 08:11:02 PM EST
    Finally, here's the irony of Bolton's argument that mandatory verification under Arizona's law will "burden" legal residents:

    Right now, under Secure Communities, the federal program I cited earlier, mandatory verification is occurring and legal residents are also being caught up in the net.

    According to DHS, Secure Communities mid-indentifies US citizens as illegals 5% of the time.

    So, if Bolton's right, is Secure Communities also unconstitutional?  Should the Justice Department being suing itself?

    Or do the feds somehow have the right to place this undue burden on legal residents - but states do not?  If so, why?