Preemption

  • April 23, 2012
    Guest Post

    By Pratheepan Gulasekaram, Assistant Professor, Santa Clara University School of Law.  Professor Gulasekaram teaches Constitutional Law and Immigration.  He is currently working on a book with Prof. Karthick Ramakrishnan (political science, U.C. Riverside) on the political and legal dynamics of immigration federalism.


    Pro-immigrant advocates – and I count myself among them – will be anxiously listening to oral argument in U.S. v. Arizona, searching for clues as to whether the Court will uphold the preliminary injunction against Arizona’s now-notorious SB 1070.  Riding the momentum of district court and appellate court victories, and with the clear weight of precedent and academic opinion on its side, the federal government’s legal case appears sound.  For many progressives and immigrant advocates who have been wearily following the recent rise of state and local regulations the case appears to offer the promise of a final resolution to the question whether subfederal jurisdictions can engage in immigration enforcement.

    Except, it likely will not provide this anticipated resolution.  While a victory for the federal government could establish powerful Supreme Court precedent against subfederal participation, there are at least four reasons why Arizona will not end the contentious national debate and policy battle over state and local involvement in immigration regulation.  First, because Justice Kagan has recused herself, there exists a distinct possibility that the case could result in a split 4-4 vote, producing no majority opinion.  Second, the district court never enjoined the provision of SB 1070 that announced the state’s intention to make “attrition through enforcement” the policy of the state.  Third, the political and legislative dynamics producing this recent proliferation of state and local laws suggest that restrictionist policy activists will not be deterred by the Court’s decision.  And, finally, regardless of the result in the case, subfederal jurisdictions can, and in some cases must, participate in enforcement programs condoned by federal law.  I briefly elaborate on each of these points below.

  • March 21, 2012
    Guest Post

    By Sarah Crawford, Director of Workplace Fairness, National Partnership for Women & Families


    “This grading of Congress’s homework is a task we are ill suited to perform and ill advised to undertake.” 

    -- Justice Scalia’s concurring opinion in Coleman v. Maryland Court of Appeals

    By a narrow majority, the U.S. Supreme Court’s decision in Coleman v. Maryland Court of Appeals – has eroded the right of millions of state workers to take job-protected leave under the Family and Medical Leave Act of 1993 (FMLA) when faced with a serious illness, injury, or pregnancy. In these tough economic times of high unemployment, the Supreme Court has dealt another devastating blow to millions of workers – making them vulnerable to losing their jobs if they need time off for medical leave. The Court ruled that states cannot be sued for monetary damages for violating the FMLA’s medical leave provision, leaving state workers with little meaningful recourse if their employers deny the self-care leave guaranteed by the plain language of the FMLA.

    The FMLA set an important family and medical leave standard that guarantees eligible workers – both women and men – up to 12 weeks of job-protected, unpaid leave to recover from a serious illness or medical condition, including pregnancy or childbirth, or to care for a newborn, a newly adopted child or a seriously ill family member.

    Since its enactment 19 years ago, workers have used the FMLA more than 100 million times. The law has helped workers disabled by pregnancy or recovering from childbirth, workers with new babies and dying parents, workers who have had heart attacks and hysterectomies – in short, workers for whom job-protected leave is of critical importance.

    Petitioner Daniel Coleman was one such worker facing a serious illness who sought to exercise his rights to medical leave. He was working for a Maryland court when his doctor ordered bed rest. After requesting medical leave, Coleman was fired the next day. He then filed a lawsuit alleging a violation of the FMLA.

  • March 2, 2012

    by Nicole Flatow

    Lower-court challenges to state anti-immigrant laws are continuing to make their way through the courts, even as the U.S. Supreme Court prepares to hear a challenge to Arizona’s law, SB 1070.

    On Wednesday, U.S. District Judge Susan Bolton blocked another portion of the Arizona law that prohibits those seeking or offering day labor services from blocking traffic.

    In granting a preliminary injunction, Bolton said the plaintiffs were likely to prevail in their claim that the provision violates the First Amendment, because the law appears to limit particular speech, rather than regulating traffic generally.

    "The adoption of a content-based ban on speech indicates that the Legislature did not draft these provisions after careful evaluation of the burden on free speech," Bolton wrote.

    On Thursday, the U.S. Court of Appeals for the Eleventh Circuit heard oral arguments in challenges to two other anti-immigration laws in Alabama and Georgia, and announced that it would not decide the case until after the Supreme Court issues its decision.

    Discussing the Alabama law, which The New York Times called “the country’s cruelest, most unforgiving immigration law,” Judge Beverly Martin questioned whether the requirement that school officials determine the immigration status of students interferes with students’ constitutional right to a public education.

    The duty of public schools to educate children regardless of legal status was established by the Supreme Court 30 years ago in Plyler v. Doe.

    Considering the Georgia law, Judge Charles Wilson expressed concern over the burden imposed on the federal government by a provision that would authorize local officials to investigate the immigration status of “suspects” and to detain them, The Atlanta Journal-Constitution reports.

    “I wonder what the increased burden would be on the Department of Homeland Security to respond to all these data-gathering requests.” he said. “You would have to create an entirely new bureaucracy, wouldn’t you, just to respond to these requests?”

    During a recent American Constitution Society immigration symposium in Atlanta, Judge U.W. Clemon (pictured), the former chief judge of the U.S. District Court for the Northern District of Alabama, called the movement to pass these new state laws “just another manifestation of the hatred and disdain on the part of white republican state legislators for people who don’t look or sound like them.” He continued: 

  • February 23, 2012
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center


    The Supreme Court’s 5-4 decision in Douglas v. Independent Living Center, a case challenging California’s cuts in Medicaid reimbursement rates, can be summed up by the movie title: The Good, The Bad, and the Ugly.  The Good is the majority’s holding that refuses to deny court access to low-income Medicaid beneficiaries who had difficulty obtaining medications and other services when California slashed rates in violation of federal law.  The Bad is the narrowness of the court’s decision, which is limited to simple instructions to the lower court on remand.  And the Ugly is the dissent seeking to slam the courthouse doors on the poor.

    The plot (or facts) in this case bears no resemblance to the movie.  When California slashed Medicaid provider rates to save money, ignoring the impact on beneficiary access to care, providers and beneficiaries sued the state.  Federal Medicaid law requires states to ensure adequate access to care.  So, the state laws cutting reimbursement rates conflicted with federal law.  The suit alleged that the state rate cut statute was “preempted” under the Supremacy Clause of the Constitution by the contrary federal law.  Businesses routinely bring preemption challenges to state laws that allegedly conflict with federal law. 

    The state tried to get the case thrown out of court, arguing that beneficiaries could not bring a preemption suit to enforce the Medicaid statute.  But the Ninth Circuit, relying on over a century of Supreme Court cases permitting preemption cases to go forward, held that poor people have the same right to bring preemption challenges as businesses, and let the case proceed.  All other Circuits to consider whether preemption is available in these circumstances were in agreement. 

  • November 4, 2011
    Guest Post

    By William Funk, the Robert E. Jones Professor of Law at Lewis & Clark Law School and a Member Scholar of the Center for Progressive Reform. Together with two other law professors, Thomas McGarity of the University of Texas and Sandra Zellmer of the University of Nebraska, he has filed an amicus brief supporting respondents’ arguments against preemption. This is a cross-post from CPRBlog.


    On November 9 the Supreme Court will hear oral argument in National Meat Association v. Harris, wading once again into the mire of federal preemption. The National Meat case involves a California statute that prohibits the slaughter of non-ambulatory animals for human consumption and requires that non-ambulatory animals be immediately and humanely euthanized. A federal law, the Federal Meat Inspection Act (FMIA), thoroughly regulates, although one could question how strictly, the process of slaughtering animals for human consumption. It also contains an express preemption provision that prohibits states from making any “requirements within the scope of this chapter with respect to premises, facilities and operations of any establishment [subject to this chapter], which are in addition to, or different than those made under this chapter.” 21 U.S.C. § 678. But then it also provides that: “this chapter shall not preclude any State ... from making requirement[s] or taking other action, consistent with this chapter, with respect to any other matters regulated under this Act.” The National Meat Association filed suit for declaratory and injunctive relief against the California law as it applies to swine and the processing of pork, claiming that the California law is preempted by the federal law. The Ninth Circuit, in an opinion reflecting the inimitable style of Judge Alex Kozinski, held that the California law was not preempted. The court said that the California law merely identifies what animals may be slaughtered for human consumption, not how they are to be slaughtered. And the law’s provision requiring the euthanizing of non-ambulatory animals, the circuit court said, does not relate to the slaughtering of animals for human consumption.  The Supreme Court, against the advice of the Solicitor General, granted certiorari.