The Justice Department is reportedly moving toward challenging the Arizona law. If true, it would be a rare case where the United States directly challenges a state law as opposed to waiting to intervene as an amicus. Given the increasing number of cities and citizens planning to challenge the law, there is no paucity of plaintiffs requiring such a challenge. I will be discussing this issue tonight on Countdown.
An early challenge by the Justice Department would indicate that it is not going to wait to create an “as applied” challenge based on actual enforcement. That would make it more likely that the challenge would be based on preemption. That would be a tough challenge in my view. I do not see in the legislative history or language any congressional intent to preempt state laws to block concurrent jurisdiction. That would leave an implied preemption argument under the Supremacy Clause of Article VI.
The Court does not presume such preemption, which would have to be based on an inherent conflicts between federal and state law. Here the state is claiming to be assisting the federal government by rounding up illegal aliens.
In De Canas v. Bica, 424 U.S. 351 (1976), the Court ruled unanimously that California could exercise such concurrent jurisdiction. At issue was section 2805(a), stating that “no employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” In a decision written by liberal icon William Brennan, the Court rejected preemption under the Supremacy Clause, Art. VI, cl. 2, of the U.S. Constitution, by the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., the comprehensive federal statutory scheme for regulation of immigration and naturalization. This was obviously, however, before the current federal scheme was put into place.
Secretary Napolitano told the Judiciary Committee that the law “will detract from and siphon resources that we need to focus on those in the country illegally who are committing the most serious crimes.” That is not enough of a preemption argument — we do not want to arrest people under the law. It will be hard to argue that arresting federal violators interferes with federal enforcement unless the policy is non-enforcement.
The law is being characterized as a separate or alternative state enforcement system as opposed to a concurrent enforcement scheme. That is far from obvious from the language which was written to track the federal law. Unless preempted, the assumption is that the state can exercise concurrent jurisdiction. As the Court stated in lyer v. Doe, 457 U.S. 202, 228 (1982),
“Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.”
This is why I have been more interested in the reasonable suspicion provision. On its face, it is hard to see how that standard could be applied constitutionally except when officers determine status at the time of another criminal violation. The problem is that the strongest challenge to that provision would be based on actual enforcement — which various groups clearly do not want to wait for. Courts may view an effort to challenge the likely application of the reasonable suspicion provision as a demand for an “advisory opinion” — which courts do not render given the requirement of an actual “case or controversy” under Article III.
I do seem to remember something about “vagueness” and “arbitrariness” in testing the constitutionality of statutes. Maybe someone in the DOJ has come across those cases.
Prof Turley,
Thank you for this additional post. You are clearly looking at this case more objectively than those in the media are, including Mr. Olbermann.
Here is a summary of the basis provisions of SB 1070 from the official AZ website:
Provisions
Enforcement of Immigration Law
· Prohibits law enforcement officials and law enforcement agencies of this state or counties, municipalities and political subdivisions from restricting or limiting the enforcement of the federal immigration laws to less than the full extent permitted by federal law.
· Requires officials and agencies to reasonably attempt to determine the immigration status of a person involved in a lawful contact where reasonable suspicion exists regarding the immigration status of the person, except if the determination may hinder or obstruct an investigation.
· Stipulates that if the person is arrested, the person’s immigration status must be determined before the person is released and must be verified with the federal government.
· Stipulates that a law enforcement official or agency cannot solely consider race, color or national origin when implementing these provisions, except as permitted by the U.S. or Arizona Constitution.
· Specifies that a person is presumed to be lawfully present if the person provides any of the following:
Ø A valid Arizona driver license.
Ø A valid Arizona nonoperating identification license.
Ø A valid tribal enrollment card or other form of tribal identification.
Ø A valid federal, state or local government issued identification, if the issuing entity requires proof of legal presence before issuance.
· Requires that if a person is convicted of any state or local law, on discharge from imprisonment or on the assessment of any monetary obligation imposed, ICE or U.S. Customs and Border Protection (CBP) must be immediately notified.
· Authorizes a law enforcement agency to securely transport an unlawfully present alien to a federal facility.
· Requires a law enforcement agency to obtain judicial authorization before securely transporting an unlawfully present alien to a point of transfer that is outside of Arizona.
· Prohibits, except as provided in federal law, officials and agencies of counties, cities, towns or other political subdivisions from being prevented or restricted from sending, receiving or maintaining information relating to the immigration status, of any individual or exchanging that information with another governmental entity for the following official purposes:
Ø Determination of eligibility for any public benefit, service or license.
Ø Verification of any claim of legal domicile if legal domicile is required by law or judicial order.
Ø If the person is an alien, determination of the person’s compliance with federal registration laws.
Ø Pursuant to federal laws regarding communication between government agencies and federal immigration agencies.
· Stipulates that these provisions does not implement, authorize or establish and cannot be construed to implement authorize or establish the REAL ID Act of 2005, including the use of Radio Frequency Identification (RFID).
· Allows a person who is a legal resident of this state to bring an action in superior court to challenge officials and agencies of the state, counties, cities, towns or other political subdivisions that adopt or implement a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.
· Requires the court to order any that a violating entity pays a civil penalty of at least $1,000 and not to exceed $5,000 for each day that the policy has remained in effect after it has been found to be violating these provisions.
· States that the court will collect the penalty and transmit the collected monies to the state Treasurer for deposit in the Gang and Immigration Intelligence Team Enforcement Mission (GIITEM) Fund.
· Authorizes the court to award court costs and reasonable attorney fees to any person or any official or agency that prevails in a case brought under these provisions.
· Indemnifies officers against actions brought under these provisions, except if the officer has been adjudged to have acted in bad faith.
http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/49leg/2r/summary/h.sb1070_04-19-10_astransmittedtogovernor.doc.htm
Move over Arizona:
TPMDC
AL-GOV Candidate: English-Only Driver’s License Tests Please! (VIDEO)
Eric Kleefeld | April 28, 2010,
AL-GOV candidate Tim James (R)
The campaign of gubernatorial candidate Tim James (R-AL) says that his ad proposing English-only driver’s licenses tests has been a big hit — and that it represents a simple solution to the illegal immigration problem that has become a huge issue in the state.
http://tpmdc.talkingpointsmemo.com/2010/04/algov-candidate-english-only-drivers-license-tests-please-video.php
This all seems to be so silly! I don’t understand that if someone is “illegal” the law can’t arrest them? Does each State need it’s own law concerning “illegal alliens?” Did Arizona tell their police to arrest only Mexican “Illegal” alliens, or all illegal alliens? There are so many from Canada & Brittain as well you know! Is that racial profiling against white folks too? Mexico it seems cant get over losing that little war we had with them…where we won Texas and established a “border”. We need a super-fence and US Army patrols to keep the “crime element” out of the US from it’s main source, Mexico!! There is also a stupid law that makes a baby born here (in the US) a US citizen, even if the parents came here illegally! The best way I see of solving these problems is to make Mexico a State! We can take it over, and easily control the Mexican border…I hope! Too many Mexicans is why we have so much crime, and conflicts, I believe there is more racial profiling by Mexicans & Blacks, than whites!
For sure! I here all the time about whites being “racial”, but it’s a way to justify their crimes only…the way I see it.
LOL @ Mac – has to be a troll, right?
FFLEO, thanks for the citation to the Arizona statute. I have now had a chance to read it completely. From a stylistic standpoint, it is not good work. It appears to have been drafted with a degree of haste and it shows in the wording and sentence structure.
Substantively, I understand Prof. Turley’s distinction between statutes which are unconstitutional on their face and those which may prove to be unconstitutional in their application. However, I still believe that the statute is facially unconstitutional. The “reasonable suspicion” standard will invite abuse and litigation. The meaning of the phrase “any lawful contact” is also open to broad interpretation. For example, if I stop a police officer to ask for directions, does the circumstance of my request mean that I am obligated to prove my citizenship upon demand? If I produce a Florida driver’s license, how is the officer supposed to determine whether it meets the requirements of the Arizona law? How many pretextual traffic stops will the legislation encourage? May the State of Arizona mandate that the State of X issue an Arizona-approved form of identification for State of X residents who don’t drive, but who wish to travel through or vacation in the State of Arizona?
There is a great deal more that can be said about the public policy underlying the legislation, but bad public policy is not unconstitutional. In the absence of federal preemption in this area, however, we may eventually wind up with a confusing and absurd patchwork of local legislation that can only be overcome through the adoption of a uniform internal passport for travel among the various states. This legislation is a product of pure policial pandering.
Mike Appleton:
I am not in favor of an internal passport/national identity card but some sort of national ID card could be used to prevent voter fraud as well as get some sort of handle on illegal aliens.
You are right in that this is ripe for abuse on a grand scale. The police would have to be saints and well versed in law for this to work.
Mike A.
Thank you for your legalistic opinions.
Byron, I totally agree with you on the burden on the police. We already expect more of them than we should. And my own (slightly cynical) view of human nature tells me that those few cops who will actually feel comfortable implementing the statute are also the few most likely to abuse their authority in the process.
FFLEO, LOL. Thanks, but I hope I’m not coming across as too legalistic.
Re: “Ø A valid federal, state or local government issued identification, if the issuing entity requires proof of legal presence before issuance.”
My state, Washington, is one of the three states that does NOT require legal presence before issuance – in fact, a visiting non-citizen could fairly easily get a DL here if they really wanted to. So, if I am travelling through AZ and I get stopped by a cop for any reason and he decides that my accent or general suspiciousness of the LEOs in general is enough to warrant questioning my citizenship, will I then be detained until the Federal Government can fully provide proof of my citizenship because my state does not meet thier standard of proof?
If Sheriff Joe was not enough, this is one more reason to avoid AZ…
Making it EASIER to immigrate is the appropriate response – not this poorly written law that will be arbitrarily enforced inviting abuse by LEOs. These immigrants would rather come in through the gate than a dangerous crossing where they have to pay/fund violent criminals. Make it easier to enter (i.e. raise the quotas and eliminate much of the paperwork) and track and many of the problems would resolve themselves at a MUCH lower fiscal cost as well as less infringement on constitutional rights.
There is no better place I could think of to ask this question and does it have any effect on what is going on in Arizona now:
UNITED STATES V. BRIGNONI-PONCE.
U.S. Supreme Court
United States v. Brignoni-Ponce, 422 U.S. 873 (1975)
United States v. Brignoni-Ponce
No. 74-114
Argued February 18, 1975
Decided June 30, 1975
422 U.S. 873
Syllabus
The Fourth Amendment held not to allow a roving patrol of the Border Patrol to stop a vehicle near the Mexican border and question its occupants about their citizenship and immigration status, when the only ground for suspicion is that the occupants appear to be of Mexican ancestry. Except at the border and its functional equivalents, patrolling officers may stop vehicles only if they are aware of specific articulable facts, together with rational inferences therefrom, reasonably warranting suspicion that the vehicles contain aliens who may be illegally in the country. Pp. 422 U. S. 878-887.
(a) Because of the important governmental interest in preventing the illegal entry of aliens at the border, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, an officer whose observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country may stop the car briefly, question the driver and passengers about their citizenship and immigration status, and ask them to explain suspicious circumstances; but any further detention or search must be based on consent or probable cause. Pp. 422 U. S. 878-882.
(b) To allow roving patrols the broad and unlimited discretion urged by the Government to stop all vehicles in the border area without any reason to suspect that they have violated any law, would not be “reasonable” under the Fourth Amendment. Pp. 422 U. S. 882-883.
http://supreme.justia.com/us/422/873/
How is it possible for you to get on a plane? Could not a terrorist get a drivers license?
At least on cop in Arizona gets it.
Pima County Sheriff Clarence Dupnik “called the law “racist” and “disgusting” and “stupid” and, in his “nuanced judgment” could not be enforced without mandatory racial profiling. Dupnik’s reckoning of the legal issue is that he’s just as likely to be sued for racial profiling as he is for not doing enough racial profiling, so he’s standing pat, and will not enforce the new law.”
From: http://www.huffingtonpost.com/2010/04/28/pima-county-sheriff-calls_n_555895.html
Good on you Sheriff Dupnik.
Buddha:
Pima County Sheriff Clarence Dupnik is one of brightest folks I ‘ve seen on television in a long time. Experienced, articulate, and persuasive, Dupnik clearly articulated the flaws in the law both legally and practically. He was also a pretty fair warm-up band for JT.
I agree that the law may not be facially unconstitutional given the concept of concurrent jurisdiction to enforce immigration law in De Canas. However, I see it as unconstitutional in application given the impossibility of articulating an objective standard for reasonable suspicion that a person is an undocumented alien. There are simply no factual distinctions available between documented and undocumented aliens unless you resort to racial profiling or the officer’s hunch. This is not a Terry v. Ohio situation in which the police can point to specific and articulable facts to justify a pat-down. And just a pat down, mind you.
In Terry, the basis for the stop was suspicious activity by Terry and his companion while walking back and forth in front of a store window many times, looking in the window, and then the men discussing what the surveillance revealed among themselves. This was, in the view of the observing officer, classic casing of a business prior to an anticipated robbery. The government could point to specific facts which justified an experienced officer reaching the conclusion that the men in question were planning a robbery and that his life and those of other citizens might be in jeopardy. The pat down was not an invasive search but limited in scope to accomplish the purpose of assessing the threat to the officer’s safety.
While many civil libertarians decry any stop without probable cause, Terry represented a compromise between no intrusion on the dignity of the person by the State and the State’s interest in protecting the safety of the officer in the face of the reasonable suspicion of harm or criminal activity.
The first time a pretty Swedish co-ed is stopped for a broken tailight, speaks to the officer in broken, heavily accented English and is subsequently found to have overstayed her student visa, is first detained by local authorities and finally turned over to ICE for deportation, there’s going to be hell to pay.
Well, I have a solution to this constitutional crisis. If Number One raises her right paw—the viewers’ left—then the Arizona law is constitutional. Alternatively, if she raises her left paw—the viewers’ right—then the law is not constitutional. That is more logical than the current rhetorical postulations.
Professor Turley, you lost some points by stating the overused “show me your papers” phrase in your interview.
http://jonathanturley.org/2010/04/25/welcome-number-one-i-have-been-expecting-you/
“Dupnik says he will enforce AZ immigration law if ‘forced’ to do so”
“A year ago, Dupnik said schools should be asking about the immigration status of students, saying it’s wrong for taxpayers “to spend the millions and millions and millions of dollars that we do catering to illegals.”
He stood behind that stance Wednesday, but said it doesn’t mean his deputies should be asking everybody on the street for documents.”
http://azstarnet.com/news/local/govt-and-politics/article_25ec5cdc-52fe-11df-8063-001cc4c03286.html
______________________
The sheriff needs to read the new law because he is mistaken that it allows his deputies or any other LEOs to “be asking everybody on the street for documents.”
Queen:
“The first time a pretty Swedish co-ed is stopped for a broken tailight, speaks to the officer in broken, heavily accented English and is subsequently found to have overstayed her student visa, is first detained by local authorities and finally turned over to ICE for deportation, there’s going to be hell to pay.”
only if she is a member of their bikini team
FFLEO:
as a former leo what is your take? You have a good idea as to the general psychological make-up of leo’s, will they over reach? Will they find this to be a pain in the neck or will they even enforce it?
This is a 2 edged sword in my opinion and has the ability to go against legal citizens. It could theoretically lead to people being held without any good cause.
For example I am a left wing redneck and don’t like gun owners, I could find some reason to detain people with NRA bumper stickers, I may not be able to hold them for any length of time but I can sure harass them. Or if I am a right wing redneck and don’t like Obama I could hold someone with that bumper sticker. If you remember it was done recently by DHS.
It is, in my opinion, ripe for serious abuse.
Byron,
The potential for LEO abuse has always been there, is there now, will always be there, and in my opinion, it is increasing. As we are observing with the proposed lowering of law school requirements (2L instead of 3L requirements) and within many other fields, we are dumbing-down every aspect of training and intellectual pursuits. There are lower standards for LEOs and waivers for past criminal behavior and drug use—as with military admissions. I do not think you can avoid the potential for increased abuse or error in any profession when there are lower standards of admission, retention, and performance evaluations.
Current officers—without the new Arizona law—can now exact the abuses you suggested. I do not routinely watch Fox News and I do not have a T.V. so my access is via internet; however, I suggest that you view this interview by Megan Kelly (very easy on the eyes) with this AZ Senator Antenori to get his interpretation of some scenarios that might occur under the new law.
http://www.foxnews.com/on-air/america-live/index.html#/v/4168832/arizona-lawmaker-defends-immigration-law/?playlist_id=87651
I don’t see how this law could last long as a practical matter. Wouldn’t any US citizen that is arrested for not having “proper documentation” have a 1983 action? In order to receive qualified immunity for a false arrest the officer needs to have good faith and probable cause. I would think the expenses incurred both in defending these actions and as a result of potential tort damages doled out would make enforcement costs prohibitive.
mespo,
I missed that Countdown. I wish I had caught it.
Mr. Obama is spreading rumors that the Arizona police are going to ask Hispanics who are going out to get ice cream with their kid can be harassed by the police ‘asking for their papers.’ I loathe that Nazi-charged phrase.
Dem and Republic debate.
http://www.foxnews.com/on-air/america-live/index.html#/v/4170463/public-opinion-about-immigration/?playlist_id=87651
Obama takes immigration reform off agenda
SUZANNE GAMBOA, Associated Press Writer
Posted April 29, 2010 at 9:16 p.m
WASHINGTON — Immigration reform has become the first of President Barack Obama’s major priorities dropped from the agenda of an election-year Congress facing voter disillusionment.
http://www.naplesnews.com/news/2010/apr/29/obama-takes-immigration-reform-agenda/
Just before Obama took Immigration reform off his agenda:
________________________________
National ID Card Included In Democratic Immigration Bill
“The Democratic proposal includes increased money for border patrol and drug war agents, equipment, helicopters and unmanned drones. It would create a national ID — which is dubbed a “biometric social security card.” Though Democrats insist that it is not an ID card and can only be used for employment purposes.”
http://www.huffingtonpost.com/2010/04/29/national-id-card-included_n_557721.html
Obama Helped Kill Immigration Reform In 2007 and he just killed it yesterday by announcing that they have too much on their plate.
http://www.creators.com/conservative/robert-novak/dorgan-s-poison-pill.html
I believe I predicted exactly this: Arpaio is making his move!
http://www.abc15.com/content/news/phoenixmetro/central/story/Arpaio-kicks-off-new-crime-sweep-targeting-west/cvv68R9fwkKKXw9PyEiBvA.cspx
Change in the Arizona ‘Immigration’ Law
Quote:
{“In deciding whom to stop, police may not factor in race, ethnicity or national origin
Immigration law scaled back
PHOENIX – State lawmakers voted late Thursday to repeal one of the more controversial provisions from the new law aimed at illegal immigration.
It was among the last things lawmakers did before adjourning the regular legislative session about 11 p.m.
HB 2162, approved by the House and Senate, changes the law to specify that when deciding whom to question about immigration status, police may not use race, ethnicity or national origin as a factor.
That is a significant change from SB 1070 as it was approved by lawmakers and signed less than a week ago by Gov. Jan Brewer. That version of the law permits police to consider any of those factors when deciding if there is “reasonable suspicion” someone is not in this country legally, as long as it is not the only reason for investigating further.”}
http://azstarnet.com/article_584c7a04-ab2b-576b-9b50-280b8da7ce99.html
FFleo:
“Change in the Arizona ‘Immigration’ Law”
**********************
Like I said in a another thread, the Court of Considered Public Opinion has ruled, and the good legislators of Arizona are slowly complying.
Mespo,
A good republic through representative ‘democratic’ government must function as such—via reasoned checks and balances.
So the DOJ is going to challenge the Arizona bill? Strange…since it is based on federal law. Even it it weren’t, does this mean Washington approves of the invasion of our nation along with the crime and destruction it brings? Guess so.
Today, May 1, is a big Communist holiday. Do you suppose there is a link? Illegals and their supporters are going to march our streets today demanding that we let them continue to invade our nation. Only in America is this allowed. I wonder what other countries would think if we stopped being PC and stood up for ourselves? Political correctness is national suicide.
I just read “Mac’s” post, and while I hope that he didn’t intend to be taken seriously, I fear that he did. At the outset I will point out that I do have a proverbial dog in this hunt, being a lawyer who has practiced in the field of immigration for more than 2 decades and who is married to a Colombian national.
That having been said, I will paraphrase Mark Twain by commenting that “it ain’t so much what a man doesn’t know as what he does know that just ain’t so.” This is particularly true about undocumented aliens. The first misconception about them is that they represent a drain on our economy and eat up vital public services for which everyone else picks up the tab. Yet just the reverse is true. Most undocumented aliens work, albeit in menial labor, and pay substantial amounts of tax. They pay sales tax, just like the rest of us, and they pay property taxes, either directly as property-owners or indirectly as tenants. Those that have social security numbers or tax identification numbers invariably also pay income taxes. Since schools are supported by property taxes, it is incorrect to presume that undocumented aliens attending public schools are riding on somebody else’s dime.
The second misconception about them is that they are “criminals.” Aliens as a whole are arrested and criminally charged at a far lower rate as a percentage of their population in the US than are US citizens. Moreover, the fact that they are here without any valid status does not make them criminals. The Immigration and Nationality Act is predominantly civil, and undocumented entry and unauthorized presence are civil violations, not criminal ones. The punishment is deportation, and few of the constitutional protections afforded to criminal defendants are accorded to individuals charged with immigration violations.
The third misconception is that they have a “legal” means of immigrating to the US. The immigration laws and quotas are so restrictive that it is almost impossible for unskilled workers to legally secure employment and residency in the US. Indeed, the waiting list for even skilled workers (even in shortage areas like nursing) is about 5 years. So, you say, let them stay in Mexico? Who do you imagine will pick the fruits and vegetables that you buy at the grocery store? I will agree that US citizens and lawful residents MIGHT be interested, but only if the wages paid were substantially higher. How many of us could afford produce if the wages for itinerant farm workers went up that much? How many small growers would be able to remain in business if the cost of harvest were to increase by that much?
Mac talks about Canadians and Brits. It is almost impossible for a Canadian to violate the immigration laws of the US, since most are admitted without a visa and are not given a Form I-94 giving them a specified authorized stay. They are treated as “duration of status” unless and until either the Department of Homeland Security or an Immigration Judge determines in the course of proceedings that they have violated the terms of their stay.
Finally, Mac criticizes the “law” that gives citizenship to children born of undocumented parents here in the US. That “law” happens to be the US Constitution. I recommend that you read it sometime.
Now why would they do something like that? It is crazy to think that AZ can’t do what it wants.
Interesting that you don’t present the language of the Constitution which pertains to citizenship by birth. Some problem there?
Of course there is a problem, because it requires “subject to the jurisdiction of the US”. That is turn means “Not owing allegiance to anybody else. That is what it means.”
Does anyone seriously believe that illegal immigrants and their children owe allegiance only to the US?
How naive are you, or is it just inconvenient and better left unmentioned?
Maybe this will help them…
Undocumented student’s arrest called part of ‘civil rights disaster’
“The future of Arizona already exists in Cobb County and Gwinnett County [also in Georgia],” said Jerry Gonzalez, executive director of the Georgia Association of Latino Elected Officials.
http://www.cnn.com/2010/US/05/14/georgia.student.immigration/?hpt=T2
This is a very well reasoned post and the most rational and well-mannered discussion of this legislation I have read on-line. Thanks.