Guest blogged by Ernest A. Canning
Arizona Gov. Jan Brewer and the GOP state legislature received another setback to their controversial anti-immigrant legislation on Monday. In a 2-1 decision, the Ninth Circuit Court of Appeal upheld an earlier U.S. District Court finding that puts the breaks, for now, on a number of provisions in the bill.
In their ruling in United States vs. Arizona, the court found a number of the most controversial provisions of the state’s SB 1070 were likely preempted by the federal Immigration and Nationalization Act (INA). The decision leaves in place a preliminary injunction by the lower court barring enforcement of key provisions of the Arizona law.
The case does not, however, address the issue of whether SB 1070 gives rise to unlawful racial profiling.
The doctrine of preemption derives from the Supremacy Clause of the U.S. Constitution. If Congress intends federal law to “occupy the field” or if state law conflicts with a federal statute, it is said to be “preempted” by federal law, which means that the federal law, as the supreme law of the land, supersedes state law…
The Majority Opinion
The court’s opinion was written by Circuit Judge Richard Anthony Paez, a Clinton appointee, and joined by Circuit Judge John T. Noonan, Jr., a Reagan appointee. Noonan also wrote a separate concurring opinion.
The court found that Section 2(B) of SB 1070 is likely preempted because it seeks to “usurp the Attorney General’s role in directing state enforcement of federal immigration laws.”
Section 3 of SB 1070, which seeks to punish “unauthorized immigrants for their failure to comply with federal registration laws,” the court said, is likely preempted because “states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or compliment, the federal law….”
Federal law likely preempts Section 5(c) which makes it unlawful for an undocumented immigrant to apply for work because Congress made an “affirmative choice not to criminalize work as a method of discouraging unauthorized immigrant employment.”
Section 6, one of the most controversial of the legislation’s clauses, permitting peace officers to arrest a person without a warrant if there is probable cause to believe they have committed a public offense that makes the person removable from the U.S., is likely preempted by federal law, according to the court, because “Federal law does not allow these officers to conduct warrantless arrests based on probable cause of civil removability.”
Rejecting Arizona’s argument, the court concluded:
George W. Bush appointee dissents
Circuit Judge Carlos Tiburcio Bea, who was nominated to serve on the 9th Circuit by George W. Bush in 2003, wrote a dissenting opinion which essentially disagreed with the majority’s interpretation of both SB 1070 and the INA.
Bea contended that Congress “expressed its intention that state officials should assist federal in checking the immigration status of aliens.” He asserted that this is what SB 1070 accomplished.
Arizona’s unelected governor expresses dismay
Back on Nov. 20, 2008, Brad Friedman warned President Barack Obama that if he appointed Arizona’s then elected Democratic Governor Janet Napolitano to head Homeland Security, he would produce a “nightmare” for Arizona; that, by law, Napolitano would be replaced by then Secretary of State Jan Brewer, whom he described as “a right wing loon†and one of this nation’s “worst†Secretaries of State, who played a key role in bringing unverifiable Diebold touch-screen voting systems into the state, long after they had been shown by computer scientists and security experts to be inaccurate, unreliable, and easily tampered with.
Brewer, undaunted by the 9th Circuit’s ruling, stated:
Therein lies the core preemption issue — whether Congress intended to adopted a single, unified national approach to immigration or desired 50 different approaches in which each state adopts its own immigration laws.
Unclear whether U.S. Supreme Court would take up case
Arizona has not yet announced whether it will file a petition for a hearing in the U.S. Supreme Court. As Phoenix attorney Stephen Montoya, who filed one of the original federal cases against SB 1070 observed, “The odds are against (the court accepting) it, but the odds are not…overwhelming.”
One of the criteria the Supreme Court weighs on whether a hearing should be granted is whether there is a division amongst the U.S. Circuit Courts of Appeal on an issue.
While both the 9th Circuit, and the 6th in United States vs. Urrieta, have ruled that the states “do not have the inherent authority to enforce the civil provisions of federal immigration law,” that conclusion is at odds with the 10th Circuit’s decision in United States vs. Vasquez-Alverez.
If the Supreme Court refuses to hear the case, the 9th Circuit ruling will likely sweep the controversial SB 1070 into the dust bin of history.
Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).
This case is probably going to the Supreme Five … like Bush v Gore did.
A judge in Ohio who lost by a mere pittance is asking The Supreme Five to revisit Bush v Gore.
Political hot potato issues are winding through the system.
I was just in AZ and was reading about this issue. The state gov claims the immigration law policy is bad for business and they claim businesses cancelled conferences and tourism was down. I don’t believe this – businesses who exploit immigrants want them around. Tourism and conferences are down everywhere.
Thanks, Dredd, for the fascinating link, which entails a great deal more than a legal challenge to the validity of Bush v. Gore.
The case arises from the razor-thin Hamilton Co. Ohio election contest between John Williams and Tracie Hunter for the position of juvenile judge. The initial count placed Williams ahead of Hunter by 23 votes.
Hunter successfully sought a U.S. District Court order which resulted in the counting of a small portion of some 1,000 “wrong precinct” provisional ballots, which then placed Hunter in the lead. The question pertains to whether “wrong-precinct” votes should be tallied when they are the product poll worker error; whether Ohio’s standards are sufficient to assure equality in counting.
From an election integrity standpoint, the case exposes the possibility that Ohio may be headed in the wrong direction.
Hart InterCivic announced that “three voting locations in Hamilton County, Ohio will take part in a pilot program to test [its] electronic poll book.”
Ohio’s newly elected Republican Secretary of State, Jon A. Husted has utilized Williams v Hunter to advance the idea that poll workers be given “access to electronic poll books, rather than the printed books and maps…Also, Husted wants absentee voters and provisional voters to provide all nine digits of their social security numbers.”
During the 2010 election, Brad provided an example of just what might occur because of the e-poll book “solution.”
TX: Collin County – E-pollbooks, networks fail at “vote centers” disenfranchising untold numbers of voters. (Collin County Observer)
According to our information, voting in many locations was interrupted due to the issues with electronic pollbooks and networks, and the resulting phone calls into the Elections Office overwhelmed their capacity to receive and handle calls.
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Technicians in the field are working to correct the IT issues, but making changes to the software while voting is in process raises multiple security concerns.
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We hate to say “I told you so…” but the Observer has been sounding the alarm on this issue for years.
Ernest,
Yes, the Ohio case is a fascinating one, as is the Arizona case which is the subject of your post.
Both have to do with federal law overlay or overlap (supremecy, preemption) … the shadow zone between state power and federal power.
You know, the Ohio judge case has some similarities to the Wisconsin Supreme Court election.
There one of Prosser’s ex-staff (who has been involved in some election criminal investigations in the past) found votes on her personal work computer.
You said, concerning the Ohio case: “The question pertains to whether “wrong-precinct” votes should be tallied when they are the product poll worker error; whether Ohio’s standards are sufficient to assure equality in counting.”
The Wisconsin question might be “are those who are officials allowed to conduct their affairs in a manner that brings disrepute to the election system” when it violates or infringes on equal application of the law.
It may not be justiciable, but perhaps it should be because the appearance of impropriety can be just as damaging as actual impropriety in some cases.
Ernie:
A number of interesting and sometimes quizzical factors here. The hierarchy of law, as we both well know, dictates that the lower shall not thwart or interfere with the higher, as is common to any well organized pyramid architecture – and is indeed the very reason for any vertical organization whatsoever. That would mean that the higher should come down on antagonistic lower system abreactions like a ton of bricks…yet it hasn’t. So, the first question would be “Why?”
Well, I read your citation and am baffled. It says “”states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or compliment, the federal law”. Er…”compliment”??? So I hie me to Black’s and find (I have the 5th ed.) no legal-specific definition of the term. Webster’s, as a fallback, only extends the usual: “an expression of respect”, etc. Thus, the second question is: “What on Earth is the meaning of ‘compliment’ in the cited usage???” Perhaps I’m missing some strange legal-colloquial slang?
The third question is: “Is it a typo – was ‘complement’ intended?” But, no, that makes no sense either. Black’s show no non-standard legal application and all Webster’s present and ancient meanings are positive…amid a triad of negatives: “conflict”, “interfere”, “curtail”. Thus, the largest question so far is: “Huh?????”
Apparently-inept semantic footwork to the side, the case seems pretty clear-cut (and racial profiling therein mooted if so), meaning: the Fed is trying its best to allow Ariz. to keep its policy by invoking no penalty and playing footsie with a gaggle of miscreants. Thus, I must take a debating issue with your:
“Therein lies the core preemption issue – whether Congress intended to adopted [sic] a single, unified national approach to immigration or desired 50 different approaches in which each state adopts its own immigration laws.”
I hold that it most definitely intends nothing but exactly what it has written but may leave enforcement to the State, and enforcement never includes sabotaging clear intent, never intends preemption in any sense,. The lower may not do anything which violates the higher, in this case: a Fed statute. Thus, Bea’s idiotic…well, I’m not sure what it is, a weird divertive sotto voce quasi-tautology perhaps?? – is all the more bizarre and nakedly striking. Either he’s a Clarence Thomas level moron or knowledgeable he will encounter no backflash in his arrogantly condescending and fleering vocabulary, and thus is essaying a hubris-bloated birdflip.
Ern, help me out here. What the hell am I missing? Have we become so cowed that we tolerate these kind of displays in jurisprudence now?
Mark:
The court’s choice of the word “complement,” while perhaps inaccurate, is simply a statement that once Congress occupies the field, a state may not pass a law that seeks to alter the federal statute, even if the state believes it is doing so to “augment” what Congress intended.
If a state law is preempted, it may not be enforced. So, the question of whether SB 1070 amounts to an unlawful attempt at racial profiling is moot. Absent a Supreme Court reversal, SB 1070 is a nullity.