Preemption

  • 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.

  • April 26, 2012
    Guest Post

    By Omar Jadwat, Senior Staff Attorney, ACLU Immigrants’ Rights Project


    I was at Wednesday’s Supreme Court argument in Arizona v. United States, observing with particular interest because I am counsel in the separate civil rights coalition challenge to S.B. 1070 (and challenges to the five copycat state laws that were enacted in 2011). I’d urge those who are following this case to pay attention to the following issues, which based on the accounts I’ve seen so far, appear to be underreported :

    First, while much of the argument revolved around Section 2(B), the “show me your papers” provision of S.B. 1070, the discussion seemed to imagine a law quite different from the one the state legislature actually passed. S.B. 1070 itself directs state and local police to detain individuals for investigation and determination of their immigration status, but during the argument, several exchanges construed the section as merely serving to notify the federal government of an individual who was otherwise properly detained. Prognostication around the argument fails to factor in this significant retreat from the plain language of the statute.

    Second, this has always been a case about discrimination, harassment and racial profiling. It is true that there is no separate legal claim based on the Equal Protection Clause in the federal government’s case (although there is one in the civil rights coalition’s case). But it is equally true that from its inception, S.B. 1070 has been synonymous with racial profiling, and for good reason – as law enforcement officials from around the country have repeatedly confirmed, and as our clients’ experiences demonstrate.

  • April 26, 2012
    Guest Post

    By Gabriel J. Chin and Marc L. Miller. Chin is a Professor of Law at the University of California, Davis, School of Law, and Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. SeeSB1070 in the Supreme Court,” their pre-oral argument analysis for ACSblog.


    The argument in the SB1070 case went 20 minutes over its scheduled hour.  Most of the justices' questions addressed Section 2, which requires local police to investigate the immigration status of anyone stopped by the police who they suspected of being undocumented. 

    Justices Kennedy and Scalia each asked the fundamental question of whether “a state must accept within its borders a person who is illegally present under federal law.” Paul Clement answered no, frankly claiming for the states the powers of deportation and border control.

    Justice Scalia agreed. 

    This question is at the heart of the case. All provisions of SB1070 are roundabout ways of forcing undocumented aliens to leave.  If Arizona has direct regulatory authority over illegal immigration, they need not operate indirectly; Arizona should just pass a law requiring the undocumented to leave, punishing them if they refuse.

    Arizona did not do this because it doubts it has that power.  Such a claim would be at odds with the traditional approach, as represented, for example, by Chief Justice Burger, joined by Justices White, Rehnquist & O’Connor dissenting in Plyler v. Doe,who wrote: “A state has no power to prevent unlawful immigration, and no power to deport illegal aliens; those powers are reserved exclusively to Congress and the Executive.”

    But if states do not have the power to regulate directly, then, as Mr. Clement recognized when answering this question, their claim to be able to do so indirectly is undermined.

    In the modern electronic glow that seeks to cast major cases into six word headlines and sound bites, many commentators have observed that the justices supported Section 2. It was common ground among the justices and counsel that an officer acting on her own (rather than by statutory mandate) may question a suspect about immigration status, at least so long as it does not prolong a detention.

    But looking at the exchanges between the Justices and the advocates, a more nuanced picture emerges.