November 1, 2010

9th Circuit Judge John T. Noonan Jr. can't understand the Justice Deparment's argument that the Arizona immigration law is preempted by federal law.

At oral argument today:
"I've read your brief, I've read the District Court opinion, I've heard your interchange with my two colleagues, and I don't understand your argument," Noonan told deputy solicitor general Edwin S. Kneedler. "We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That's not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don't have an argument."

"With respect, I do believe we have an argument," responded Kneedler, who said the Arizona law is unconstitutional and threatens civil liberties by subjecting lawful immigrants to "interogation and police surveillance.''
Yeah, well, but that's not preemption.

Here's my old post trying to make sense of the preemption argument. I came up with this (admittedly strange and politically inadvisable) argument:
The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration. Given that federal policy and the supremacy of federal law, one could argue that it is not within the state's proper power to dictate a different policy and impose it on the federal government (by referring a lot of new cases of individuals violating federal law).
I really need to see the whole transcript. Ah! Here's today's oral argument:

53 comments:

Methadras said...

Nice smack down. I wouldn't have said it so judiciously.

mesquito said...

Maybe the suit was brought for purely political reasons.

HDHouse said...

The federal government has, no doubt, fallen down on the job on any number of judisdictional issues that could preempt state actions. But isn't the threshold point that if they (the feds) do a good job or a bad job or simply no job whatsoever, they get first and last dibs and preempt anything that the states put forth.

Arizona passed a law that effectively trys to preempt federal jurisdiction. What if a patchwork of laws were passed - one each by each border state and all worded to fit the individual state's peculiar interests.

Preemption seems to be the remedy to a potential crazy quilt.

Sigivald said...

HDH: How does one preempt jurisdiction?

The only way the Arizona law works at all is that the things they're being sent to the Feds for are, you know, kinda illegal. Under Federal law.

If the Feds don't like that, they should... change the law to reflect what is actually desired. If it wasn't against Federal law, they wouldn't have anything to send people to the Feds for, would they?

What if states had various laws tailored to fit their interests?

What if we had Federalism?

Huh, yeah. Am I supposed to be skeered or something?

Synova said...

We're supposed to have a crazy-quilt. The Feds just have to learn to deal.

In any case, I'm seeing you create a whole new Consitutional Power of Federal Government to force laws on states. All the Feds have to do is pass a law, any law at all, and then fail to enforce it. The failure of the Feds to enforce the Federal law will then prohibit the States from passing or enforcing any similar law.

In real life, though, the states enforce all sorts of Federal law. The Feds couldn't possibly do it all themselves.

Human nature being what it is, the predictable result of any sort of prohibition on duplicating or enforcing Federal laws is going to be a punitive adherence to that rule. Just like when a boss cracks down concerning promptness in a workplace where people come in early and stay late to get projects done. All of a sudden everyone follows the rules, leaves work undone, clocks out and goes home.

HDHouse said...

Synova said...
"In real life, though, the states enforce all sorts of Federal law."

precisely the point. Federal law. They can enforce it or perhaps elect not to do much about it but they have to deal with it, not vice versa.

The federal government may be a convenience to some but it is a necessity to others and there are certain parts of the federal mechanism that binds the country - law being one of those parts.

this type of thing needs to be settle fairly soon as the "pot" elections tomorrow are another preemption.

Comrade X said...
This comment has been removed by the author.
Comrade X said...

except the pot election is the opposite of the AZ one. If prop 19 passes and the feds win the AZ case, won't the state be barred from enforcing federal prohibition?

Revenant said...

It doesn't sound like the DoJ put their top guys on this case.

former law student said...

People educated in law might want to, oh I dunno, read the US's brief, Document No. 80 in the case on justia.com CV 10-1413-PHX-SRB

The preemption arguments are well laid out. For instance, Congress decided not to make working in the US without authorization a crime. Arizona does. The only sure documentation one can carry to prevent being detained till ICE gets back to Arizona law enforcement -- however many hours or days or weeks that takes -- are Arizona state IDs, or tribal IDs. A drivers license from another state may pass Arizona's muster or it might not.

What's interesting is that if, say, a Texas resident vacationed in Arizona with his Mexican sweetie, the Texan would be guilty of an offense as well, for "transporting an alien into the State."

Lucien said...

Doesn't the underlying problem for the DOJ arise from the idea that preemption is supposed to depend on the intents of Congress in enacting a statute, rather than the method of enforcement chosen by a particular administration many years later?

Suppose, for a moment, that the AZ statute and gone into effect, and someone facing criminal charges as a result of its enforcement raised preemetion as a defense. How far would that person get by arguing that the way in which a particular admniistration enforced immigration laws was the basis of preemption? If there were a change of administrations while the matter was pending, could either side seek reconsideration of a ruling on preemptoion based on teh change in administration?

Likewise, suppose the AZ statute is held to be preempted now, and a new president is elected in 2012 who takes a tougher stance on enforcement. Could Arizona's statute then be given effect on the ground that it was no longer preempted?

I think that one's reaction to these hypotheticals gets to how much the legislature's intent is supposed to be the touchstone for a preemption analysis.

Lucien said...
This comment has been removed by the author.
Bill Kilgore said...

Professor- If you've a moment, I've got a couple of questions which I haven't been able to get answers to and which you may be uniquely positioned to address.

With respect to preemption generally, substantially all of my knowledge on the subject comes from my Chemerinsky textbook (circa 2003.) That book, which I drug out in order to better understand this topic, couches the entirety of its preemption discussion in terms of Congressional action v. State action, and/or Congressional intent v. State conduct. However, for purposes of their anti-Arizona argument, the current Administration effectively ignored the Congress part of the movie and focused on the President's "policy" preferences. (I refer to this as Presidential Preemption, or even Mood Preemption, but that's a separate issue.)

Accordingly, my questions are these: (1) does the Chemerinsky book- assuming you're familiar with its recent printings- still discuss preemption in those terms? (2) Are those the terms with which you typically deal when discussing preemption? That is to say is there support for this "new" type of preemption. And (3) do you have a decent source for a preemption discussion generally because the D.Ct ruling in this case seemed so absurd that I have to assume there is something I'm missing.

Any help at all would be appreciated. As to my ultimate concern, per the D. Ct. ruling, the Constitutionality of substantially all state laws are dependent upon the identity of the President and his attitude towards the state law. For reasons that should not require articulation, that seems problematic in the extreme.

holdfast said...

The AZ law upholds, reinforces or mirrors the Federal law. It could be argued that it preempts, or is at least counter to, the [un]official Federal policy of failing to enforce Federal law, but ass Anne notes, that could make a really interesting precedent - I'm looking at you state "assault weapon" bans.

ndspinelli said...

When it comes to specific issues involving law, is when I defer to attorneys. Thanks.

AZDCbadger said...

Don't read too much into Noonan's comments; he's an odd duck.

A few days before oral argument, he has his clerk call the attorneys and ask where they went to law school and for whom did they clerk; not if they clerked, but who was the judge.

Ann Althouse said...

"However, for purposes of their anti-Arizona argument, the current Administration effectively ignored the Congress part of the movie and focused on the President's "policy" preferences."

If you listen to the oral argument, I think you'll see that the court is very focused on the text of Congress's legislation. The idea that the state is preempted by the administration's lax enforcement gains no purchase.

dbp said...

I see all of this as similar to the signing statements issue. People against them said that essentially the president is refusing to enforce the law. The argument for them was that it clarified how the law would be interpreted by the administration.

Here, the veil is off--there can be no doubt that the administration intends to not enforce the law. Isn't this an impeachable offense?

mesquito said...

There's that damn "purchase" again.

Sixty Grit said...

dbp - we can only hope so.

former law student said...

there can be no doubt that the administration intends to not enforce the law.

Hyperbole only weakens an argument. As the United States of America's brief points out, the administration is enforcing the law.

Approximately 25% of all ICE special agents are stationed in the five
Southwest Border offices, including more than 350 agents in Arizona. Id. ¶ 8
[SER 107]. During an average day, ICE officers remove from the United States
approximately 900 aliens. Id. ¶ 5 [SER 105]. Approximately half of those aliens
who are removed by federal immigration authorities each day are persons who had
committed crimes. Id.


But enforcement will be jeopardized if the state of Arizona starts shoving jaywalkers and other low-level miscreants at ICE, instead of the drug runners they would prefer to process.

Ignorance is Bliss said...

holdfast said...

...but ass Anne notes...

If you're going to insult the good Professor, at least spell her name correctly!

Gabriel Hanna said...

@fls:
During an average day, ICE officers remove from the United States
approximately 900 aliens.


Yes, they make a token effort.

But enforcement will be jeopardized if the state of Arizona starts shoving jaywalkers and other low-level miscreants at ICE, instead of the drug runners they would prefer to process.

Oh, WHATEVER. They've refused to take ANY of Arizona's regardless of what they might have done. They've made no exception for drug runners.

The government will sue you under the Civil Rights Act if you refuse to hire illegals who show even crude fake documents--as you have had to acknowledge--and IF they notify you that an someone who is working for you might be illegal they will sue you under the Civil Rights Act if you fire them.

Because they are so busy concentrating on drug runners.

former law student said...

The government will sue you under the Civil Rights Act if you refuse to hire illegals who show even crude fake documents--as you have had to acknowledge--

I forget -- how many such suits are pending right now? And how many have the feds brought up to this point?

New "Hussein" Ham said...

"The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration. Given that federal policy and the supremacy of federal law, one could argue that it is not within the state's proper power to dictate a different policy and impose it on the federal government (by referring a lot of new cases of individuals violating federal law)."

This is a non-sensical argument. It presumes that the "federal government" is a monolithic enterprise ... when our Constitution expressly provides that it not be monolithic.

The Congress makes the laws, and the Executive swears an oath to uphold those laws. When the Executive chooses not to uphold the laws passed by the Congress ... the State Legislatures are left with no alternative but to enact state laws that its Executive branches are sworn to uphold.

The "federal government" that you speak of, Ann, in your argument above, is not in fact "the government" but rather only one branch of it. And it happens to be the branch that isn't doing its fucking job - deliberately - as a way of undermining the authority vested by the Constitution in the Congress to pass the laws.

kathleen said...

um, FLS, what makes illegal immigrants illegal is immigration law, not drug trafficking law. an "illegal immigrant" jaywalking is just as illegal as an "illegal immigrant" drug trafficking.

Gabriel Hanna said...

@fls:

I forget -- how many such suits are pending right now? And how many have the feds brought up to this point?

Why do I always have to do YOUR homework? Several hundred every year.

http://www.google.com/url?sa=t&source=web&cd=1&ved=0CBMQFjAA&url=http%3A%2F%2Fwww.osc.gov%2Fdocuments%2Fpress%2F2005%2FGAO.pdf&rct=j&q=referrals%20per%20year%20OSC&ei=l2TPTMniJYP0tgO6uO2IBA&usg=AFQjCNEk4b0Z0YxzeVjYxQpruwGOFtPEWg&cad=rja

kathleen said...

" And it happens to be the branch that isn't doing its fucking job - deliberately - as a way of undermining the authority vested by the Constitution in the Congress to pass the laws."

Not to mention that the law considers Congress, the federal legislative branch which passed immigration laws in the first place, to be closest to the will of the American people -- moreso than the executive and the judiciary branches, whose agents are appointed (except for the Pres)

Roadkill said...

I suspect that if Arizona passed a law to promote compliance with Federal Tax law, the Feds would not be so animated in pressing the preemption argument.

former law student said...

an "illegal immigrant" jaywalking is just as illegal as an "illegal immigrant" drug trafficking.

Given limited resources, which miscreant do you want ICE to process?

Or do you want more of your income diverted to Federal immigration enforcement?

Martin L. Shoemaker said...

former law student said...

Or do you want more of your income diverted to Federal immigration enforcement?

Yes.

If you want to make a case that the economic and social costs of non-violent illegal immigrants (minus the economic benefits of non-violent illegal immigrant labor) are less than the costs of increased enforcement, I'm willing to look at that research. It's going to be complex research to do well, since it's going to be difficult to assess a cost value for such factors as "degrading respect for the law" and "increasing resentment in the general populace"; but I think with a lot of money and time and research, it may be possible to do that research and produce statistically significant results. If it exists right now, I haven't seen it, but I don't claim to be an expert.

Until you produce that research, however, my default assumption is akin to the broken windows theory of policing: if you pursue and prosecute even small violations, you reduce the large violations.

Jim said...

fls -

Or do you want more of your income diverted to Federal immigration enforcement?

Tell you what...you agree to more enforcement, and I GUARANTEE you I can find enough chunks of other federal spending to cut out in order to fund it.

You game?

SteveR said...

Or do you want more of your income diverted to Federal immigration enforcement?

If you lived where I live, you'd never ask such a stupid question.

c3 said...

As a citizen of the Grand Canyon State, as someone not in favor of SB 1070, as someone who's decried the "over the top" rhetoric of the opponents of SB 1070, I've said all along that in the long run this law will make little difference in AZ and mainly increase lawyer and court costs as its litigated.

Here's our first bit of evidence that it won't make any difference. But I'm willing to wait the 2+ years to see if I'm wrong.

On a side note, driving back from California I got my first glimpse of the "wall" just east of Yuma. Here's a picture of it in the dunes east of Yuma. It doesn't go over the mountains though.

Finally, a warning for Republicans. Don't let a politician's "Get tough on Immigration" push blind you to his fiscal irresponsibility

dave in boca said...

Ha ha ha... The political nature of this suit smells so bad that even the 9th Circus Court can't take it seriously. Wait, I've got an idea... why doesn't Obummer fire the stupid AG who instigated the suit, a certain Holder dude who has an iQ lower than Trig's will be after he completes his higher education.

that-xmas said...

FLS,

You're arguing that the federal government gets to decide when it wants to enforce the law. Rule by the whim of administrators is certainly not a system that leads to equal protection under the law. In your argument, you are advocating pure anarchy.

Bryan C said...

"But enforcement will be jeopardized if the state of Arizona starts shoving jaywalkers and other low-level miscreants at ICE, instead of the drug runners they would prefer to process."

That's not what's happening. But even if it was, why should AZ care what ICE "prefers" to do? ICE is not a policymaking or legislative body, it's a law enforcement agency. It's like the FBI asking states to stop arresting kidnappers because the Feds feel like focusing on bank robberies right now.

And are you seriously contending that ICEs huge resources are so poorly utilized that the agency can be effectively overwhelmed by a relative handful of illegals from a single state? That's pretty damning.

Fen said...

"there can be no doubt that the administration intends to not enforce the law."

Hyperbole only weakens an argument.

Except its not hyperbole. We have Obama and other Dems on tape claiming they are deliberately blackmailing voters with non-enforcement to get traction on immigration reform.

Its like the Feds saying "we're not going to protect NYC from a terrorist attack until they support our position on waterboarding"

The Ghost said...

Gee, doesn't federal immigration law "preempt" the sanctuary city laws in dozens of cities ?
Seem like the Justice department could win alot of those cases.

The Monster said...

The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration.

With all due respect, Professor, "real-world efforts" don't belong in a "preemption" discussion. Article VI's second paragraph reads [emphasis mine]:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

There is not a word privileging a policy of the Executive Branch (as expressed in those "real-world efforts") over State laws or constitutions. Only where Congress (which originally included a Senate elected by those State legislators constrained by this provision) acts within its own Constitutional authority to pass a law (or the Senate ratifies a treaty) must states defer to any "supremacy" (which, not unlike "separation" and "church", does not appear anywhere within the actual text of the Constitution).

If AZ is following the law, then "supremacy" is not involved. That the Federal Executive violates the law or fails to enforce it has no bearing on that fact.

Of course, that's a plain reading of the text, not the penumbras of emanations of inferences.

traditionalguy said...

@ The Monster...Your argument is a well done legal analysis. However you seem to have forgotten the real world basis of the supremacy clause, which we Atlanta Georgians still recall. It is spelled, William Tecumseh Sherman and his damned Army of the West, that descended from Illinois, Wisconsin and Ohio upon helpless States. That sort of ended your best arguments right there.

Bart DePalma said...

Ann:

The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration. Given that federal policy and the supremacy of federal law, one could argue that it is not within the state's proper power to dictate a different policy and impose it on the federal government (by referring a lot of new cases of individuals violating federal law).

Actually, this argument does not work very well either. The AZ law enforces federal law. What we are dealing with is lax enforcement of federal law law by the executive.

Since when does the desire of the executive to decline to enforce federal immigration law preempt states from doing so?

The entire preemption argument is nonsensical.

former law student said...

doesn't federal immigration law "preempt" the sanctuary city laws in dozens of cities ?

States (and municipalities) don't have to enforce Federal law -- a principle the Supreme Court most recently reinforced in US v. Mack. (Federal government could not force local law enforcement officers to perform Brady bill background checks. One argument Sheriffs Mack and Printz used was following federal law used up scarce law enforcement resources.

There is not a word privileging a policy of the Executive Branch (as expressed in those "real-world efforts") over State laws or constitutions.

The Constitution makes the President responsible for the faithful execution of the laws. The proper Constitutional remedy for not faithfully executing the laws is impeachment, not an end run.

The AZ law enforces federal law.

The Feds enforce federal law. But, states and municipalities can apply to enforce federal immigration law, under the direction of the federal government.

Moreover, the AZ law creates new, nonfederal law, principally because it creates several state crimes, some of which duplicate federal crimes, others which create new crimes in defiance of the will of Congress. But even if it duplicated federal law exactly, as the Supreme Court held in Hines v. Davidowitz back in the 40s, the AZ law would be unconstitutional.

former law student said...

Another question for all you constitutional scholars: What if Arizona enacts a plan to raise a militia to start shooting Mexicans as they cross the border, on the theory that Congress is neglecting its duty to summon the militia to repel invasions? Wouldn't all the arguments that Arizona is just filling a void apply here?

Alan S. Blue said...

I keep wondering how long the entire concept of paper money would last if the Secret Service were the only people allowed to diagnose "Possibly counterfeit." (They're currently where the discovery ends up for investigation.)

We have minimum-wage clerks administering this little federal law without any danger of "preemption."

former law student said...

The state of Arizona has no statutes regarding counterfeit money. They have respected that the US has preempted the field.

recon613 said...

Starting 21:44+ ...
Awwwwwwwwwwkwaaaaaaard!

recon613 said...

minute starting @ 21:44....
Awwwkwaaaaarrrd!

Jim Bullock said...

Given limited resources, which miscreant do you want ICE to process?

Oh, that's interesting. Maybe we should consider limiting ourselves to passing laws that we are willing and able to enforce, completely and consistently.

Seems to me that when we allow laws to be enforced only sometimes, what we call "discretion" looks a lot like "patronage." Ask any small-town restauranteur about local health an safety enforcement - it's who you know and whether they like you, more than anything.

As it stands in practice right now there are good illegal immigrants and bad illegal immigrants. The feds get to decide which is which, based on who knows what. Is this what we want?

Mattman26 said...

It sounds like there may well be portions of the statute that will be struck down. But on the key "preemption" issue, the fed's argument borders on the nonsensical, and the appellate panel seems appropriately skeptical. Federal statutes explicitly give state and local law enforcement officers the ability, when they wish to resolve doubts about a person's citizenship or immigration status, to send a query to federal officials; it appears to be completely discretionary on the part of the individual state or local officer. In the state statute, Arizona is telling its law enforcement personnel that they should exercise that discretion in favor of sending the query to the feds in every instance where a person's status is reasonably subject to question. The attorney for the feds here is arguing that for the state to direct its own officers' discretion --- the state is directing its officers to do a thing that a federal statute explicitly permits them to do --- is somehow an encroachment upon the federal government's authority. It's a crappy argument, and the judges clearly think so too.

mdgiles said...

As a layman (non lawyer), let me see if I understand the DoJ argument. They are saying that by passing a law, completely in line with the US law as written, the state of AZ is preempting, federal jurisdiction by assisting the Feds in the enforcement of their own laws. So if California legalizes pot, and the LEA's of California refuses to assist the US in enforcing drug laws, there would be no problem as the Feds, and only the Feds, can take any actions toward enforcement of Federal Laws?

former law student said...

[The DOJ] are saying that by passing a law, completely in line with the US law as written, the state of AZ is preempting, federal jurisdiction by assisting the Feds in the enforcement of their own laws.

That's not what the DOJ is saying, as I have pointed out above. But Hines ruled that states could not even copy federal immigration law exactly, and try to impose it on immigrants.

States can assist the Feds in enforcing Federal immigration law via Section 287(g) of the Immigration and Nationality Act (INA)

former law student said...

Seems to me that when we allow laws to be enforced only sometimes, what we call "discretion" looks a lot like "patronage."

So why send a cop out with a radar gun unless you have enough cops to cover all the streets at once?