Sunday, August 15, 2010

Is it illegal to make illegals illegal?

So, I pissed myself off the other day. I saw a collection of opinions by law professors on The New York Times website concerning the U.S. District Court Judge’s decision in the immigration case brought by the federal government against Arizona and read them.

I had already formed somewhat of a general opinion on the whole issue, mostly favoring the state. That is, I liked the law and only had a few quibbles with it. I offered a comment before I read the judge's opinion, something I try not to do. It’s not that anyone is scoring me on whether I change my mind or not, but I try not to do it because news reports or opinion pieces of most court cases are generally only political or ideological. By that I mean completely skewed. I thought that these law professors would be a little more realistic, but, when I read the actual opinion, saw they were as willing to exaggerate or twist as any so called pundit (by the way, if I ever use the word pundit without the "so called" prefix, please assume it. 

And,  after I read the court's opinion (twice now), I changed my mind a little. I had not the background in immigration law to really see the whole picture, and now, at least, I see it better. When Arizona first passed its law (and I did read that), the consensus was that if the federal government sued Arizona the issue would be about the law being too vague and therefore a violation of the due process clause (14th amendment). But, everyone also knew, or thought, anyway, that the underlying issue was really whether the law was racist. But, the federal government apparently realized that they had a weak case on that ground as the law specifically made racial profiling unlawful and to a large extent mirrored federal law.

But some learned soul at the Attorney General’s office knew something that Eric Holder (the attorney general) and Barack Obama (the law professor) and Janet Napolitano (Department of Homeland Security and former Arizona governor) didn't know and when they sued they went on much stronger grounds that almost no one saw. I certainly wasn’t expecting it.

Preemption is a fairly esoteric legal issue that only comes up when federal law is pitted against state law. In a nutshell, the constitution contains a supremacy clause, which basically places federal law over state law. Sounds easy. Unfortunately, not.

Preemption happens two ways. If congress actually says we mean to take this area for ourselves and the states can’t legislate about it, that’s express preemption. But, if the courts feel that congress has made such a comprehensive scheme that it appears they intended to preempt, without actually saying it, that’s implied preemption. Implied preemption happens when either the federal scheme is so pervasive that it appears the congress has occupied the field, and also where a state law interferes or makes impossible to enforce federal law. Naturally, there's a lot more to it, but I felt eyes glazing over all ready.

Express preemption is fairly easy. But whether or not there should even be implied preemption is not seriously argued by almost anyone anymore. It is well established and even the two ideologies – liberal and conservative – like it. Neither side wants the states going off the reservation when they have control of the federal government.

Here the question is - has congress preempted the field of immigration. Although states’ rights enthusiasts would like the federal government’s power limited to powers expressly mentioned in the constitution, they can’t realistically argue that immigration isn’t one of them, as naturalization, migration and importation are all specifically mentioned there.

In fact, over 30 years ago the Supreme Court held in an 8-0 decision that congress has clearly preempted the states when it comes to immigration, in a case called De Canas v. Bica (1976). And, when you think about it, there’s good reason for it. You can’t have 50 states making the rules for who gets to be in the country and who doesn’t, who is an illegal, who gets thrown out and how. It would be like having the states being able to declare war. In some areas everyone recognizes unanimity is a good thing.

But, it's never that simple. In the same '76 case, the court also made it clear that states can make laws which affect immigrants as long as they aren’t speculative and only indirectly affect them.

So, the question here is not whether preemption applies to this case – it does, and as a general principal, Arizona doesn't really disagree. Justices as left wing as Brennan and Marshall and as right wing as Burger and Rehnquist all agreed to the De Canas decision. The real issue is whether or not the Arizona law affects immigration in a non-speculative and indirect way.

I wasn’t even keen on briefing cases when I was in law school, and I don’t intend to do it here either. But, following are some of the important things you might want to know about this case if you intend to have anything other than a polemical argument about it. If this seems dense to you, all I can promise you is that it is an attempt to make something complex as simple as possible while still being remotely comprehensive. You want more - read the case. You want less, you can find that on any news channel.

This was not a trial. No final decision was made. It was merely an attempt by the U.S. to have the court stay the law until the trial on their lawsuit. In order to win the motion they had to show that it was likely they would win at trial, that the U.S. would suffer irreparable harm if the motion wasn’t granted, and last, that the balance of equities and public interest was in their favor (yes, these are vague standards but are, far as I know, except for the public interest part, the standard elements in every similar motion throughout the country).

The district court (that is, the lowest federal court judge who will handle this case) did not enjoin the entire law. For one thing, the law, which contained some new provisions but also amended some old laws, contained a provision which stated that if some of the provisions were found unconstitutional, the rest could stand on their own. Although the U.S. asked for this, it's argument that the law was an "integrated statutory enactment with interlocking provisions" probably made everyone giggle, but didn't wash.

So, despite what you may have read or heard, most of the law Arizona law still stands and is now in effect. There are four provisions which were stayed pending trial because the judge found that it’s likely the U.S. will win on these four parts (plus the irreparable harm and balance of equity stuff I'll get to later).

The immigration laws are somewhat complex and often puzzling. For example, I did not know the following. In fact, I'm betting only a small group of immigration lawyers know:

*It is not a federal crime to be unlawfully present in the U.S., although oddly, it is a crime to unlawfully enter (or to re-enter after deportation) or do a few other related things. This wasn’t an oversight. Congress determined it should not be a crime. As Johnny Carson used to say - "I did not know that"(but it was funny when he said it).

*Nor is it a crime for an unlawful alien to apply for or to work here. I did not know that.

*Immigration law already has a scheme where it can work with certain local governments on immigration issues wherein the Department of Homeland Security can contract with the states to have certain trained employees work on immigration. Arizona participates in it. I did not know that (but, unlike the first two, it kind of makes sense).

Let’s look at the four sections the court stayed and see why the court found it more likely the U.S. will win on these points and then, you lucky dogs, I’ll tell you what I think.

Section 2 requires that an officer make a reasonable attempt to find out the immigration status of someone who is arrested, stopped or detained and if there is reasonable suspicion he is not legally here, and that, if arrested, they must keep him detained until they have verified his legality.

I think we can all agree that being stopped, restrained or arrested is a traumatic event that needs to avoided by authorities who have this awesome, if necessary, power over us. We all know it is going to happen to innocent people, and we have to deal with that. And, we have safeguards in the 4th (they need probably cause to arrest and an arrested person needs to be brought before a magistrate very quickly) and 8th amendments (reasonable bail) which protect us.

Looking at the last part of this section (holding onto suspect after arrest), this means that not only will unlawful aliens be held until the authority feels they are certain as to the immigration status, but also legal aliens and citizens will be held.

Remember, the law requires the authorities to enforce the law to the max at the penalty of civil suits. Yet, this would allow them keep citizens, lawful aliens and even citizens in jail indefinitely after arrest (normally, many people who are arrested are not “booked” or go to jail, etc.) until they feel satisfied they have evaded their personal liability. This isn't the usual - sorry, sometimes the innocent get arrested - this would undoubtedly be a violation of 4th amendment rights and the 8th amendment right to reasonable bail. Even if you feel illegals are the worst threat to our nation and don't care what happens to them – how can this be justified for lawful aliens or citizens?

Moreover, as Arizona authorities must do mandatory checks on immigration status with DHS and ICE, the U.S. has complained that handling these greatly increased requests interferes with the government’s own policy decisions as to which requests to handle (and the people will sit in jail until they do them). And, yes, the courts have found that merely overburdening a federal agency may trigger preemption. As the court noted, the problem can’t be looked at in a vacuum as numerous other states (apparently 18) are considering a similar law. However, it certainly could be argued that this complaint is speculative and not worthy of an injunction prior to trial or it actually happening.

The first part of section 2, which requires officers to check the immigration status upon reasonable suspicion a person who is lawfully stopped, detained or arrested may be illegal, raises the same issues as detention after arrest, but also another. While it is repeatedly stated that aliens are required to carry their papers with them in public, the U.S. pointed out that there are a number of situations where lawful aliens who the United States is aware are in the country but who will not have papers. I have to say, I did not know this either. These include foreign visitors:

- from visa waiver countries

- seeking asylum whose cases have not yet been adjudicated

- with “temporary protected status”

- applicants for certain non-immigrant visas (I had to look this up, but it refers basically to those who are victims of certain specified crimes and their families).

- those petitioning for help under the Violence Against Women Act.

Keep in mind, this is going to happen a lot because the authorities MUST apply this process to any person they reasonably suspect is an unlawful alien who so much as jaywalks or walks their dog without a leash (examples used by the court). And don’t argue with this too much, oh ye supporters of the law, because that is specifically what Arizona intended – a "war" of attrition on illegal aliens. Regrettably, others will be affected who have constitutional rights or are being afforded protection by the government.

The issue of not over-burdening lawful aliens (not to mention citizens) is one congress considers quite important. The U.S. has argued and the court agreed that the federal government long ago decided we are not a country where aliens’ papers are going to be routinely checked as it is too much of a burden on lawful aliens. This is important not only for lawful alien and citizen rights, but because the U.S. has an interest how our citizens are treated abroad too, not to mention its relationships with other countries whose citizens may be involved. It is a fair argument that we have a border problem or crisis, but it is also a fair argument that we have a democratic system and elected leaders who made these decisions.

Section 3 makes it a crime for aliens not carry their federal registration papers.  Basically, this makes it a state crime to violate federal law. And, there is nothing inherently wrong with a state doing just that in the abstract.

However, the Supreme Court long ago held (Hines v. Davidowitz [1941]) that the federal registration act was a “single integrated and all-embracing system” and precludes the states from either conflicting with OR complementing the law if it conflicts with congress’s purpose.

The Arizona law plainly seeks to complement the federal law. The U.S. argued and the court agreed that this is in conflict with the federal immigration law because it shifts the penalties involved and that “stands as an obstacle to the uniform, federal regulation scheme”. This seems to me to be one of the court’s weaker decisions, but I do not think it is absolutely without merit. If the U.S. has decided in a field which only they can regulate that the penalty for such and such a violation is X, is it not a conflict to have a State decide it is Y.

Section 5 makes it a crime for an unlawful alien to solicit, apply for or perform work. Here again, the U.S. argues that Arizona’s law conflicts with its own and this is clearer than in section 3. As I stated earlier, it is not a crime for an illegal to seek or do work. Congress considered it and decided against it. Thus, the U.S. argued that Arizona’s criminalization of the failure, where none existed in the federal scheme, is pre-empted pre-empted.

Arizona argued that there is no express preemption by congress (well, d’uh – it be easy if there was) and that work is traditionally a function of the state and preemption should not be lightly inferred in that situation. And there is some case law supporting this position (and as always, some others making it less than clear). The court however, found it was likely the U.S. would win this point, given that it has so regulated the field, but deliberately left these actions un-criminalized. I'd like to make that clearer, but its really foggy.

Section 6 permits an arrest without a warrant if there is probable cause the person has committed an offense that would make them removable from the United States. The court took pains to note it isn’t clear what it means as Arizona authorities already seem to have this power. It obviously refers to aliens as only they can be removed from the U.S.  And Arizona, in argument, suggested it is only for those aliens who committed crimes outside of Arizona but who are now in Arizona. Moreover, the court noted that it was also putting Arizona's officers in the position of making a determination which Justice Alito has noted is very complex and really is the determination of judges - that is - which offenses are removable? Consequently, she believed that it made it likely that Arizona officials would make a lot of mistakes in trying to apply this rule. This is by far the weakest of the court’s holdings.

As to the question of whether the U.S. will suffer irreparable harm if the motion isn't granted, whether the balance of equities are in its favor and this is in the public interest, the court answered yes based upon the premise (and case law) that a state violating a federal constitutional right or law always (or presumptively) causes irreparable harm, is inequitable and against the public interest. As the federal government is in charge of foreign relations, not the states, and this law has already (fairly or unfairly) caused an international sensation, this does not seem to me illogical, although perhaps overstated.

One might fairly suggest that what seems like irreparable harm one week, may seem like nothing the next. One could argue that there have been enumerable actions by our government which have caused irreparable injury to our relations with other countries, yet, somehow, when the mood is right, we even get past it with such implacable historical foes as Britain, France, China and Russia. Our long war with Vietnam doesn't seem to have created irreparable harm. What’s so irreparable here? Is Mexico going to stop doing business with us or declare war? 

Nevertheless, I doubt the courts will look at it this way - the finding of the first element - the likelihood of victory after trial will itself satisfy the other two elements as well.

So, here are my conclusions. Forget the political bull you hear from both sides. 

Overall, I think this judge did a fair judicial job. She did not enjoin the whole law, as was requested. She did not enjoin all the specific sections the U.S. argued in favor of enjoining. The sections she did enjoin may, in fact, be shown to be preempted after trial. In my humble opinion -

- as to section 2 (the one concerning checking immigration status before the prisoner is released), I think the court is correct, although I think the strongest argument is not preemption, but the 4th amendment.

-as to section 3 (the one concerning failure of aliens to carry papers), the only real issue is that the state penalties differ from federal ones. That may be enough to trigger preemption because, if the federal government completely control who is in the country and what they have to do, then they must be able to control the penalties, not the state. If Arizona is smart, it will modify its law and take this one out of issue.

- as to section 5 (the one where congress has decided that illegal aliens working is not a crime), if that's what congress decided, then a state cannot decide differently. Even though employment is normally within the police power of the state, it is not where the only target and concern is purely an area of federal law for which preemption has been found. As an analogy, congress controls the nuclear energy sector. A state law which concerned itself with nuclear energy within the state, even if dealing with employment, would likely still be found to be preempted. I see no real difference between express preemption and areas where the Supreme Court has already found implied preemption.

- as to section 6, (the warrantless arrest section), I had real trouble with this. If Arizona officers are empowered to do this anyway, I do not see how it can be enjoined simply because some of the people they do it to might be illegal aliens who committed a crime in another state. I do not see how the U.S. can win on this section and thus, would not have enjoined it.

Uh oh - hold everything - facial versus "as applied" challenges

But . . . although I left this last complicated issue out, it is an important one. This case is a facial constitutional challenge. That means, the law is unconstitutional in all applications. Let me give you an easy example. If a state passed a law that said no one may publish a political opinion disfavorable to the governor in power's party, that would clearly violate the 1st amendment on its face, without exception. There are no situations where it would not be.

The other kind of challenge is called "as applied" and is when the plaintiff asks for the law to be found unconstitutional in particular situations. The courts give the states and congress a lot of deference and these challenges are much more preferred by the courts.

Like much constitutional law, this tortured issue has a whimsical history and facial challenges . Under the Roberts court, facial challenges have been made very hard to win, and it has been argued, they may have made it close to impossible to win one, because it is often not hard to find a situation where a law would be constitutional.

Don't be surprised if the Supreme Court finds that the district court judge may have been partially right in her analysis except she did what she said she herself couldn't  do - created hypothetical situations where the law might be unconstitutional instead of asking - will this be unconstitutional in all situations? I can't deny that it appears to me that at least in some of the sections, the court may have done just that, particularly with regard to sections 2 (post arrest detention) and 6 (arrest for removable acts). All that would mean was that the facial challenge will have lost (at least for some sections) and that we can expect years of litigation out of Arizona and other states as to whether these laws were unconstitutional as applied. It is very hard to say whether the court will do this, but I suspect it will (the question is always - what will Kennedy do?). if it does, you will see state after state making these laws.

I personally am not a fan of the state of the law on facial challenges, but who am I?

Last thoughts

As the lower court recognized, Arizona is essentially a state under a slow motion siege by illegals from the Mexican border as are the other border states. Regardless of my approach here, most of the law is still in effect and I'm glad. It angered me that some politicians and civic leaders have boycotted Arizona for trying to protect its citizens and I would like to take a trip there in support (it is an unbelievably beautiful state if you haven't been there). I do not for a second believe this is a law with racist underpinnings (courtesy of unfortunate race baiting from the left). Were there plenty of jobs, were there not a drug and gang war going on bleeding into our country, were crime not so rampant, Arizona would be welcoming foreign Hispanic immigrants.
However, I also am chagrined at the right wing's assault of this court's character. She doesn't deserve it, whether she is ultimately right or wrong I believe she showed courage in rendering an unpopular opinion and her analysis in this thorny issue, was impossible to make without credible criticism from both sides.


  1. You forgot, Darrow, the well known taco defense. As in where in hell am I going to get a decent taco if you kick all the mexicalis out? Not to mention just who in the name of the maker is going to do all the housecleaning? Do you know how many people in my neighborhood hire house cleaners? Just by coincidence, many speak little bits of English, are short of stature, and call Mayans their "grandparents". These judges can all go diddle themselves if they think I'm gonna start pushing a vacuum around. And let's not even discuss empanadas, God's gift to the discriminating palate. That's reason enough alone to let the little bastards in. Finally, section 3, article 4, post-haste, ipso facto, who would go out to eat if, after the meal, they had to wash their own dishes?

  2. Damn, you're right. I hate it when I miss something big.

  3. Let's give it up for Bear who will be appearing here all week. He'll be headlining at Sphincter Busters comedy club next week. Try the veal and don't forget to tip your waitress.

    I agree with most of your substantive observations but I disagree that there was grounds for the stay. I don't see irreparable harm amd I don't think there was sufficient evidence of likelihood of success on the merits.
    I'm not a fan of implied preemtion. Premption should not be an applicable defense if the feds claim they have preemted a field but are refusing(as in this case) to enforce the law. A factual finding of willful non enforcement should nulllify the preemption.

    Also, as a general philosophy I am much more concerned with the feds moving the entire reservation than a stat running off it.

  4. Not an unreasonable argument (although not as good as Bear's.) But, if you could have your druthers and there is no implied preemption then you have to say that you are okay with sanctuary cities and even sanctuary states when a Republican administration is in office. Not sure you would be so eager for that. So, you have the problems, that, one, the Supreme Court long ago disposed of this issue and they are not going to change it b/c of non-enforcement (which is also a policy choice - how many agents available? - where to put them?, etc.) but also, two, the problem that you have 50 states with 50 solutions, plus the federal solution. Not a good idea says just about everyone (I think Thomas might agree with you).

    I don't believe I said I think it will stand (please don't make me read it again). I just identified the issues and tried to analyze them. I think there is a good chance they will knock it down based on the make up of the court, but, if so, it will be because of the facial challenge problem that there are circumstances where the sections might constitutionally apply and the court had to resort to hypotheticals in order to find as it did (on at least some of the challenges). However, I'm not sure that even a Scalia or Roberts wants a 50 state solution when it comes to immigration. If they do, then you might see a re-writing of the immigration law where congress expressly preempts.


Your comments are welcome.

About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .