April 24, 2010

"Were I representing Arizona, I’d argue that the federal government is in default on its 'protection against invasion' responsibility, and that this empowers the state to resort to self-help."

Says Glenn Reynolds, citing Article IV, Section 4 of the U.S. Constitution. ("The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.")
Not sure how that would play out, but it would make an interesting law review article. And a fun oral argument.
I'm pretty sure how it would play out. The courts would apply the political question doctrine and say that Article IV, Section 4 is a "textually demonstrable commitment" of the question to Congress and the Executive. It is for them and not the courts to say what constitutes an "invasion" and what protection is warranted. Even though it would not be a lawsuit against the federal government, attempting to get a court to compel it to act — it would only be a justification of the state's acting in its own defense — the courts would refuse to interpret and apply that provision of the Constitution.

UPDATE: Glenn fights back on the political question doctrine. He connects Article IV, Section 4 to Article I Sec. 10. ("No State shall... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.")
Arizona is not — yet, anyway — engaging in war, but it’s clear from this language that it’s constitutionally empowered to do so when invaded, even if the federal government does nothing (and perhaps even in the face of federal objection). Arizona’s legislation is passed in response to armed people coming across the border and killing Arizonans, which sounds rather like an invasion. If that’s the case, then lesser responses to invasion are, arguably, permissible as well in the face of federal inaction. What the courts will do with this is, of course, uncertain (and likely not tied very closely to the actual text of the Constitution!) but it’s certainly not a frivolous argument.
An immediate military response to a sudden invasion that "will not admit of delay" is clearly distinguishable from the long influx of migrants to which the state has responded with a stringent policy of requiring and checking papers and deporting people. Arizona has adopted its own immigration policy, because it doesn't like the policy the federal government is following. But the federal government has complete power over immigration. This "invasion" concept is offered as a work-around to that power.

I think that if the Arizona policy were challenged and Arizona argued it had suffered an invasion that the feds wouldn't deflect, that the courts would say: It's not for us to decide what constitutes an "invasion." Congress and the Executive have already made their decision about that, and the Constitution makes that the final answer. As they say in political question doctrine talk, there's "the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government... an unusual need for unquestioning adherence to a political decision already made... [and] the potentiality of embarrassment from multifarious pronouncements by various departments on one question."

At that point, the court would be back at the original barrier to the state's law: the exclusive federal power over immigration.

31 comments:

Alkibiades said...

Don't these "political question" cases resolve themselves when one of the two sides blinks? I think of those cases where anti-protestors have sought injunctions against overseas military actions - no judge is going to ordera sheriff to impound an aircraft carrier, or whatever. So a state says it will do such-and-such because the federal government has been negligent, and various federal officials say so-and-so in response. Once the state has acted, it becomes put-up-or-shut-up time for Congress: get serious about either enforcing the laws or immigration reform. Or, finding ways of penalizing a recalcitrant state. Like, withholding funding for unemployment, or highways, or education.

Hagar said...

How is Arizona's legislation different from resolving that the State will now proceed to enforce the existing immigration laws, as opposed to all the states and localities that have adopted resolutions directing their police to not enforce these laws?

Which resolutions contribute the most to anarchy?

Peano said...

"The courts would apply the political question doctrine and say that Article IV, Section 4 is a "textually demonstrable commitment" the question to Congress and the Executive."

Huh? I'm not sure what you meant to say here, but I'm pretty sure it wasn't that.

Alkibiades said...

A brainstorm!

(1) Build a huge fence along the border - and I mean, YOOGE;

(2) Hire "undocumented" laborers and first-generation citizens to paint murals all along the American side, depicting their aspirations for citizenship and what citizenship means for them;

(3) hire underemployed artists (redundant?) to supervise the project's aesthetics, but without comprimising its authenticity.

Result: A border fence gets built; productive labor is found for the unemployed; and the ongoing project can foster a "national conversation" about immigration.

If we're going to have the unfocused, scattershot economic policies of the depression, let's at least have the beautiful federally-funded public works projects of the depression!

Hagar said...

Isn't there something in the Constitution that says the States shall recognize the Federal Government, as well as each other, and cooperate in the execution of all properly constituted laws?

Ann Althouse said...

"Isn't there something in the Constitution that says the States shall recognize the Federal Government, as well as each other, and cooperate in the execution of all properly constituted laws?"

There's the Supremacy Clause, but the states have some reserve sovereignty, so "properly constituted laws" leads to the question what do the states still have power to do. Also, the federal government can't use the states to enforce their laws. Read United States v. Printz. The state courts have to enforce federal law, but the state executive and legislative branches are entitled to operate independently if they want.

Anil Petra said...

Don't you have it backwards?

In the headline quote, it's a federal suit to invalidate Arizona law.

If the Guarantee Clause is a political question, won't the Court step away, and let the State of Arizona determine its meaning?

Mark O said...

This is an powerful political strategy because it puts Obama in a most difficult position. Of course, he slinks back into calling it racist (in his way) but the fact is that the Federal government has defaulted on its obligations. There likely are other areas in which states can claim the Feds have equally defaulted.

Yet, I'm not certain Obama dares challenge the law. His response will certain set up futher state manuevers against the ever widening Federal reach.

EDH said...

I'm a little confused.

Does the poltical question doctrine make the courts more or less likely to strike down AZ statute on constitutional grounds?

Would politcal question simply serve as a rebuttal to this potential Art IV, sec 4 defense against a Supremacy Clause challenege to the statute?

At a minimum, what struck me about the AZ statute was its invocation of "reasonable suspicion." That suggested to me that at a minimum the courts would, on 4th amendment grounds, apply the "specific and articulable facts" standard from Terry v. Ohio, which would have its own limiting effect on the "when practicable" latitude officers are given to stop and detain people reasonably suspected of being in the coutry illegally.

George said...

This is one case where the primacy of self preservation will trump the intricacies of constitutional law.

Ken Mitchell said...

I am, no doubt, confused; I usually am. But in this case, it seems to me that the Federal government has established immigration laws that the Federal officials responsible for enforcing these Federal laws are refusing to enforce. Arizona proposes to enforce Federal law, in the face of the refusal of Federal ICE officials to do so.

This is unlike (for example) the case in California, where Federal drug laws are being ignored by STATE officials.

Michael said...

Why should we allow states to outlaw illegal behavior?

Hagar said...

Professor:
So, the State may tell its police not to bring the violator of a Federal law before a State court?

But there is nothing that says it cannot choose to do so, is there? And if the State does, the court must enforce the pertinent Federal law?

AST said...

I think we've painted ourselves in a corner by letting our concern for civil liberties overshadow other legitimate concerns and responsibilities none only of government, but of citizens. I've never understood by people thought that a national ID was such a bad idea. Few of us were really aware before 9/11 how easy it had become for American society to be infiltrated by terrorists and illegal aliens. We didn't want to be inhospitable.

It seems so elementary that if you leave the front door of your home standing open, you shouldn't be surprised to find some strangers wandering around inside.

Calypso Facto said...

Thank you Ken and Hagar for echoing my own confusion: How can the the President feign outrage at local officials enforcing Federal law? (Somewhat rhetorical, since I know that politicians need be neither logical nor consistent. Especially when pandering to a specific interest group.) But if they don't like the law as it stands, they can always change it. He takes Captain Renault's indignation to new depths: "I'm shocked, SHOCKED, to find enforcement of Federal law going on here!"

The President also doesn't bolster his case against state action when he starts off with: "Our failure to act responsibly at the federal level..."

And his follow up argument that the problem of illegals crossing the border to commit crimes can be solved by granting amnesty to existing illegals is a complete non sequitur.

wv: chedin. Enforcing the laws we wrote that might be unpopular with a constituent group we covet is chedin!

Calypso Facto said...

I wanted to research the immigration issue more, but got distracted by strippers at the UW Med School party!

The Law School is going to have to up (so to speak) the entertainment quotient, Professor!

David said...

Some have pointed out the difficult position Obama is in -- Arizona's law draws attention to the fact the federal government has not been protecting the border. Allow me to comment on the difficult position Obama's remarks created for the Arizona Governor.

First, some background: While serving as Governor, Janet Napolitano sent the National Guard to the border. The amount of crime in the border area dropped significantly. However, the cost of putting the Guard on the border was expensive, so Governor Napolitano sent the federal government the bill. She argued the feds should foot the cost because the use of the Guard was made necessary by federal inaction. Today, DHS Secretary Napolitano is refusing to pay the bill sent to DHS by Governor Napolitano. Today, the state does not have the money to send the Guard to the border (it was running a surplus when Napolitano sent the Guard; it has a huge deficit today).

Arizona Governor Brewer reportedly has placed several calls to the White House the past few weeks. She hoped to get some promise that the feds would step up enforcement, pay for the use of the Guard, or take some other action that would allow her to veto the Bill if it passed. Instead, she got a public lecture from Obama. How could she veto the Bill under that circumstance? The law is supported by a majority of Democrats AND Republicans in Arizona. Vetoing the Bill without any concrete promise from Obama to address the problem would have required immense political courage. Vetoing the Bill after Obama publicly lectured the state for acting irresponsibly and without any concrete promise to address the problem would have been political suicide.

Hagar said...

Can the Secretary of Homeland Security, the Attorney General, etc., be sued or impeached if they are acting on the President's instructions?

I would say there is also a question of the President's Oath of Office.

Ann Althouse said...

@Peano The word "of" was left out by mistake. Fixed.

cf said...

Ann, Does your argument become weaker with each unfunded mandate Congress passes which does not limit the obligation of the states to fund programs for citizens?

How much is left of federalism--indeed of sovereignty ,though that's another question--when wide open borders make states and citizens responsible for such payments to non citizens and persons not legally authorized to even be here?

Nick said...

As I understand the law, the federal government has complete power over immigration. States may not pass laws that are "regulations of immigration."

The question is what a "regulation of immigration" is. SCOTUS has said that it is this:
"a determination of who should or should not be admitted into the country, and the conditions under which a legal immigrant may remain."

De Canas v. Bica, 424 US 351 (1976).

This is clearly not that. It is a regulation upon a class of people that the federal government has already deemed to be illegally present. Courts have upheld such laws on countless occasions. The law itself is carefully crafted to only target those who have violated federal illegal entry and illegal reentry laws (8 USC 1324, 1326).

Simply put, there are no preemption issues here at all. At least that I can see.

Grames said...

"Arizona has adopted its own immigration policy, because it doesn't like the policy the federal government is following."

This is a lie, the Arizona laws cites 8 USC 1373 - Sec. 1373. and defers to federal authority on determining who is an immigrant.

Paul said...

Isn't it revealing that the federal government isn't concerned that so many municipalities have declared themselves sanctuary cities, where immigration law will not be enforced, but it does seem to be concerned--or at least Obama is outraged--when a state wants to enforce the law?

It's as clear as can be that the elites, business interests, and the federal government do not want to impede the constant flow of cheap labor and potential Democrat voters from Mexico.

LonewackoDotCom said...

I'm not a constitutional scholar, but I'll point out that states do have some role in immig. enforcement given to them by the feds. The 287 (g) program for instance.

Can't the AZ law be considered to be OK in the same way that that program is OK?

P.S. While these questions are useful, it might be just a smidgen more helpful if Althouse could turn her attention to all the MSM lies about the basic facts of the bill.

For instance, * CNN's "FAQ" on the bill lies, as did * Rachel Maddow and several others. It's a much more pressing need to fight back against such lies. It's too bad that no one else is doing it.

cf said...

Good argument, Nick.

Michael said...

16. 16 angels can dance on the head of a pin. Or, as a lawyer friend once quipped in connection with another lawyers antics: he spends his time trying to separate the fly shit from the pepper

Ann Althouse said...

"If the Guarantee Clause is a political question, won't the Court step away, and let the State of Arizona determine its meaning?"

It is within the political question doctrine, which means it is left to the political branches of the federal government, not to the states. See Baker v. Carr.

k*thy said...

"The Law School is going to have to up (so to speak) the entertainment quotient, Professor!"

Was this a unofficial Dean's Cup event?

Steven said...

It would seem implicit in Article I section 10 that the state gets to decide for itself if it is in "such imminent Danger as will not admit of delay." After all, the whole point of the imminent danger exception is to allow action without Federal approval.

So Arizona points to some case of violence perpetrated by an illegally present foreigner (that is, "an invasion"), declares that the danger is too imminent to await of delay, and moves forward with its effort to expel the foreign invaders (illegal immigrants) from Arizona.

The Federal Government then declares there is no invasion or imminent danger. Fine, let's assume the Feds can do that.

Arizona then points to the next violent crime committed by an illegally-present foreigner, declares "Imminent danger! Invasion!" and resumes its anti-invader efforts. It continues them until the next official Federal determination there is no imminent danger to Arizona.

Then Arizona points to the next violent crime by an illegally-present foreigner . . .

You can't get an order requiring Arizona get permission for future declarations of imminent danger for the simple reason that the Constitutional exception exists specifically to allow Arizona to act without permission.

cubanbob said...

"Ann Althouse said...
"If the Guarantee Clause is a political question, won't the Court step away, and let the State of Arizona determine its meaning?"

It is within the political question doctrine, which means it is left to the political branches of the federal government, not to the states. See Baker v. Carr.

4/24/10 5:41 PM"

What happens if one of the houses of congress changes hands in November? Obama and the senate can't force the house. Arizona wins by default. Suppose another state passes a similar bill?
Perhaps Texas. And like the Florida lawsuit against the mandates that now have a number of states joining in, who is to say this bill won't get traction in a number of states? In this game of chicken, at this time the states have the better hand. Obama is truly above his pay grade as a governing politician and is certainly the living embodiment of the Peter Principal.

g2loq said...

Ah don't think AZ passed that law to generate fun oral arguments among lawyertons ...