Preemption

  • April 26, 2013

    by Jeremy Leaming

    Despite the rhetoric to move beyond a perpetual “war on drugs” the Obama administration remains mired in the tough-on-drugs mindset and its Justice Department seems befuddled by the states that have legalized small amounts of marijuana for recreational use.

    The Government Accountability Office (GAO) issued a report revealing that the administration’s goals set out in 2010 have largely not been met. The report noted that the Office of National Drug Control Policy and other federal agencies established “seven Strategy goals related to reducing illicit drug use and its consequences by 2015.” GAO continued, “As of March 2013,” its “analysis showed that of the five goals for which primary data on results were available, one shows progress and four show no progress.”

    But, as The Huffington Post’s Matt Sledge reports drug czar Gil Kerlikowske, head of the Office of National Drug Control Policy has just released another drug control plan that builds on the policies the GAO has said are not working. More troubling, Sledge notes that the drug office’s budget “still devotes less than half of it funds to treatment and prevention. The GAO found that prevention and treatment programs are ‘fragmented’ across 15 federal agencies.”

    In an April 24 post on its web site, the Office of National Drug Control Policy bemoans “illicit drug use,” claiming “drug-induced overdose deaths now surpass homicides and car crashes as the leading cause of injury or death in America.” It also declares “we cannot arrest or incarcerate our way out of the drug problem.”

    The language from the administration’s drug control office is softer than rhetoric about the “war on drugs,” which the Nixon administration launched with the enactment of the Controlled Substances Act (CSA) several decades ago. But the administration’s drug control office is not embracing drug legalization or even any changes to the CSA, such as removing marijuana from the list of drugs deemed as dangerous as say heroin.

    The muddled message from the Obama administration -- not helped by its Justice Department’s silence on how it will respond to Colorado and Washington, where officials are crafting measures to implement and regulate the recreational use of marijuana -- is preserving tough-on-drugs policies.

  • June 26, 2012
    Guest Post

    By Margaret Hu, a visiting assistant professor at Duke Law School  


    In Arizona v. U.S., the Supreme Court only upheld Section 2(B) of the highly controversial Arizona immigration law, also known as SB 1070 (Arizona's Senate Bill 1070). Three other provisions of SB 1070 were struck down. Upholding Section 2(B), however, is problematic because it preserves the provision of the bill that invites state and local law enforcement to engage in racial profiling.  

    Section 2(B) is known as the "your papers please" or "show me your papers" provision of the highly controversial law. Some are reassured that the Court recognized that the constitutionality of the "show me your papers" provision of SB 1070 might be reconsidered at some point. The Court suggested the question is now whether Section 2(B) might create a problem of racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause, and other constitutional problems. In other words, Section 2(B) is not going to be thrown out now, before the law is implemented. But, if the law results in racial profiling, the Court said that this question could be dealt with in the future, when the evidence surfaces.

    Unfortunately, 25 years of immigration law experimentation with "show me your papers" policies have demonstrated that the future consequences of this provision can already be predicted: Section 2(B) will likely lead to widespread discrimination. 

    Those U.S. citizens and lawful immigrants who may "look or sound foreign" are likely to be the target of scrutiny, simply based upon their appearance. And because states may now perceive that they have the green light to bake "show me your papers" requirements into state immigration law, the racial profiling problems stemming from a "show me your papers"-based immigration policy will likely worsen.

  • June 25, 2012
    Guest Post

    By Alan B. Morrison, Lerner Family Association Dean for Public Interest & Public Service at George Washington University Law School


    The Supreme Court today by a vote of 5-3 upheld most of the rulings of the lower federal courts that Arizona’s efforts to supplement federal enforcement of federal immigration law was preempted by that law. Justice Kagan did not participate because she had worked on the case when she was Solicitor General. The ruling constituted a major victory for the Obama administration in a case that was vitally important to the Hispanic community.

    Others will join the debate on whether the majority or the dissent was correct. I am writing to explore how progressives and others who support the American Constitution Society should react to this decision and how it compares to other decisions in which preemption was invoked to set aside other state laws that we might favor. My thesis is that, for most people, where you stand on preemption is where you sit on the substantive laws being preempted. A few examples will illustrate the point, after which I will try to put the issue in some perspective.

    The proposition that federal law trumps state law if there is a conflict is not in dispute. The problem arises because Congress is often not clear, or does not anticipate what state laws might look like in a field where Congress has legislated. The Arizona case can fairly be described that way.  Nonetheless, the Supreme Court has also been clear that state laws that stand as obstacles to the objectives or means used in federal laws are also preempted, which was the claim made here when the United States sued over the Arizona law that avowedly sought to “discourage and deter unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Opponents of the Arizona law saw it as an effort to harass immigrants as well as other Hispanics, while proponents claimed that it was designed to take up the slack in federal enforcement. Progressives generally favored the preemption side, while conservatives (including the three dissenting Justices, who did not include the Chief Justice) supported Arizona. For States, being opposed to federal preemption is their almost universal response, although they often take a different position when the issue is whether state law preempts actions by counties or towns. The United States is a little less monolithic, but tends to favor preemption in many if not most cases.

  • June 25, 2012

    by Jeremy Leaming

    Although the Supreme Court invalidated three key provisions of Arizona’s outlandishly harsh anti-immigrant law, it left in place for the moment the law’s ignoble “show me your papers” measure.

    The majority in Arizona v. United States invalidated three provisions of the law, SB 1070, saying they could not be enforced because they conflicted with the federal government’s constitutional authority to set policy on immigration matters. Those provisions included Section 3 criminalizing the failure of persons to carry immigration documents; Section 6, barring undocumented immigrants from seeking work; and Section 6, allowing warrantless arrests when an officer has probable cause to believe a person who has committed a crime is undocumented.

    Justice Anthony Kennedy writing for the majority said the “national government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the nation’s meetings its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”

    But Section 2 (B), the “show me your papers” provision was upheld. The provision requires police to make a “reasonable attempt … to determine the immigration status” of persons stopped, arrested or detained on some other legitimate basis if “reasonable suspicion exists that the person” is “unlawfully present in the United States.”

    Regardless of how that provision is interpreted, Kennedy said it “only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption – at least absent some showing that it has other consequences that are adverse to federal law and its objectives.”

    Kennedy, however, said Arizona’s “show me your papers” provision may yet be susceptible to preemption or constitutional challenges. He said today’s opinion “does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

  • April 26, 2012
    BookTalk
    The Immigration Crucible
    Transforming Race, Nation, and the Limits of the Law
    By: 
    Philip A. Kretsedemas

    By Philip A. Kretsedemas, an associate professor of sociology at The University of Massachusetts Boston


    For the past two years, the national debate over police involvement in immigration enforcement has focused on Arizona Senate Bill 1070. When it was first enacted, SB 1070 was widely criticized for the broad discretion it allowed Arizona police to question people about their legal status. Much of this criticism focused on the problem of immigrant racial profiling. Opponents of the bill argued that it opened the door for the indiscriminate interrogation of anyone who looks like an unauthorized migrant.

    Even though these complaints figured prominently in the public debate over SB 1070, it is rather telling that they have dropped out of the legal arguments that have been marshaled against the bill. One reason for this curious situation is that complaints about racial profiling and selective enforcement have historically been framed as violations of Fourth Amendment rights. But it also so happens that the legal challenge against SB 1070 is being led by the Department of Justice which, for obvious reasons, is not interested in setting legal precedents that would limit the search and seizure power of the police. The Supreme Court, which is currently deliberating over the DOJ's lawsuit against SB 1070, also has a history of favoring the discretionary powers of law enforcement over Fourth Amendment considerations.

    It is important to keep this context in mind when evaluating the legal arguments that are being levied against SB 1070. The DOJ is advancing a finely pitched argument which takes issue with the law making powers of local governments but not the search and seizure practices of law enforcement. It is also bears noting that the DOJ is not opposing local immigration laws on principle. The DOJ supported Arizona's employer sanctions law (penalizing businesses that hire unauthorized migrants) which was subsequently upheld by the 9th Circuit and Supreme Court. The federal government also doesn't seem to be opposed, on principle, to the involvement of police in enforcing federal immigration laws. The Obama administration has actually given state and local police new opportunities to enforce immigration laws. It has only taken issue with local enforcement practices that operate outside of the federal-local enforcement arrangements that have already been authorized by federal law.