Ninth Circuit Upholds Injunction Against AZ Immigration Law

[Richard Parker]

Hot off the docket: http://www.ca9.uscourts.gov/datastor...45_opinion.pdf

So this panel at least thinks that key parts of the law are likely preempted. Are they right? I think they are, as this is what I predicted.

More thoughts from me, and minor gloating directed at Bricker, to come, but I thought i would solicit feedback first.

Eta: title is unfortunate typo. Bad iPhone, bad.

[Czarcasm]

[Mod mod]Changed "lawn" to "law" in title. Will change it back if OP was really about keeping those pesky furriners off his grass.[Mod mod]

[emacknight]

Originally Posted by Richard Parker

Hot off the docket: http://www.ca9.uscourts.gov/datastor...45_opinion.pdf

So this panel at least thinks that key parts of the law are likely preempted. Are they right? I think they are, as this is what I predicted.

More thoughts from me, and minor gloating directed at Bricker, to come, but I thought i would solicit feedback first.

Eta: title is unfortunate typo. Bad iPhone, bad.

Could you translate that into moron for me? And maybe condense it down a bit? I too would like to gloat.

[Whack-a-Mole]

Originally Posted by emacknight

Could you translate that into moron for me? And maybe condense it down a bit? I too would like to gloat.

IANAL but from the following linked article this ruling upholds the lower court ruling.

(From the Decision)

The relevant provisions of S.B. 1070 facially conflict with Congressional intent.

...

We stress that the question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way... This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.

...

By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents.

SOURCE: http://www.tucsonsentinel.com/local/...sb1070_appeals

[Morgenstern]

pdf warning advisible.

[Richard Parker]

It says PDF right in the link!

Emack: the gist is that they agree with the district court that the federal government's framework for dealing with immigration prevents states from taking matters into their own hands. But this is just a preliminary injunction, meaning they could change their mind once the whole thing is fully litigated.

[Diogenes the Cynic]

Washington Post story.

Evidently, this is not technically a ruling on the Constitutionality of the law, per se, but a ruling on whether the judge had a right to impose an injunction. Still, it has the effect of continuing to prevent the law from being enforced..

[Bricker]

1. The Ninth Circuit is the most reversed federal circuit.

2. I have always acknowledged that the weakest point on this law -- or, if your prefer, the point on which it's most vulnerable to being overturned -- is federal preemption. For example, see this post::

Originally Posted by Bricker

Well, if it gets overturned on the basis over preemption, I'll be mildly surprised, but not shocked to my very core. I regard the preemption argument as wrong but tenable.

If it's overturned because of some Equal Protection-type claim, I will humbly and sincerely eat helping after helping of crow.

[SantaMan]

Originally Posted by Bricker

1. The Ninth Circuit is the most reversed federal circuit.

Huh, I thought this was a canard. I had understood that because of its volume, the 9th circuit was both the most overturned and the most reaffirmed, and that percentage wise, they are about on par with other circuits. Am I mistaken?

[Diogenes the Cynic]

The law hasn't been ruled on at all per se. Only the injunction.

The fact that thge 9th is often overturned is emblematic of nothing but the different partisan make of the the 9th and the Supreme Court. I'm pretty sure that if this gets to SCOTUS, the decision will break down along predictable party lines.

[Richard Parker]

1. What happens to the Ninth Circuit's record if you adjust for Reinhardt not being on the panel and per capita size? (I'm kidding, mostly.)

2. Oh, I was thinking of another quote of yours, Bricker:

Originally Posted by Bricker

OK, let's make it interesting -- $100 says that the law survives a pre-emption challenge. It may get scuttled at the district court, but the final judgement (circuit or scotus) will be that it's not pre-empted.

Bet would be a push if Congress passes a new law that might more definitively pre-empt it.

What do you say?

Originally Posted by Richard Parker

I would say I cannot ethically take that bet. But I'm happy to simply bet personal honor as the more accurate legal analyst. I'll even give you 3:1 odds.

Originally Posted by Bricker

I'll accept your counteroffer. A win for me will give me the right to point out that I'm three times the legal analyst you are. That might be worth more than the $100, come to think of it.

Now, the law was amended after that exchange, I think. So I'm ok with regarding the bet as nullified. And, of course, this is not the final judgment. Which is why my gloating is minor. But let's be clear about your position, which was not one of "I'll be mildly surprised."

[Bricker]

Originally Posted by Richard Parker

1. What happens to the Ninth Circuit's record if you adjust for Reinhardt not being on the panel and per capita size? (I'm kidding, mostly.)

2. Oh, I was thinking of another quote of yours, Bricker:







Now, the law was amended after that exchange, I think. So I'm ok with regarding the bet as nullified. And, of course, this is not the final judgment. Which is why my gloating is minor. But let's be clear about your position, which was not one of "I'll be mildly surprised."

I said "mildly surprised" a month after accepting the bet (May 2010); it's not a recent revision of my estimation in response to the Ninth Circuit's actions.

My position remains the same: I don't believe that this is a legitimate case of federal preemption, and I don't believe the courts will see it that way. I was confident enough to offer a $100 bet, and accept a bet about personal honor as a legal analyst. From my perspective, the change in the law was at best neutral to the issue of federal preemption, and only helped the law's palatibility overall, so I don't wish to consider the bet void on that basis.

But since the change in the law put your side in worse position, I'd be willing to permit you to withdraw from the wager.

Otherwise, I'm good.

[Richard Parker]

Originally Posted by Bricker

I said "mildly surprised" a month after accepting the bet (May 2010); it's not a recent revision of my estimation in response to the Ninth Circuit's actions.

I incorrectly assumed that the staking of a wager reflected some conviction beyond that which could be described as subjecting you to mild surprise if wrong.

Originally Posted by Bricker

My position remains the same: I don't believe that this is a legitimate case of federal preemption, and I don't believe the courts will see it that way. I was confident enough to offer a $100 bet, and accept a bet about personal honor as a legal analyst. From my perspective, the change in the law was at best neutral to the issue of federal preemption, and only helped the law's palatibility overall, so I don't wish to consider the bet void on that basis.

When you say, "I don't believe the courts will see it that way," you're excluding the U.S. District Court for the District of Arizona and the Ninth Circuit Court of Appeals, which seems like an odd definition of "courts." Or do you mean that something about further factual development might change the outcome?

As to the wager, I haven't looked closely at what was changed in the law. We can keep our wager in place regardless, given its somewhat frivolous nature. I strongly suspect something will change before this case sees SCOTUS on final judgment.

______

As to the opinion itself, I don't think they left themselves a lot of leeway for going the other way on final judgment. Certainly Noonan didn't. So I suspect that if neither Congress nor AZ amends something before then, this will see SCOTUS. But there might be cases decided by SCOTUS in the interim that affect the outcome.

Preemption is an interesting issue from a political perspective. In recent years, the conservative wing has been more likely to find preemption than their states-rights tendencies might suggest. I'm thinking in particular of Buckman, in which Rehnquist wrote:

Policing fraud against federal agencies is hardly “a field which the States have traditionally occupied,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), such as to warrant a presumption against finding federal pre-emption of a state-law cause of action. To the contrary, the relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law. Cf. Boyle v. United Technologies Corp., 487 U.S. 500, 504—505 (1988) (allowing pre-emption of state law by federal common law where the interests at stake are “uniquely federal” in nature). Here, petitioner’s dealings with the FDA were prompted by the MDA, and the very subject matter of petitioner’s statements were dictated by that statute’s provisions. Accordingly–and in contrast to situations implicating “federalism concerns and the historic primacy of state regulation of matters of health and safety,” Medtronic, 518 U.S., at 485–no presumption against pre-emption obtains in this case.

Given this analytical framework, we hold that the plaintiffs’ state-law fraud-on-the-FDA claims conflict with, and are therefore impliedly pre-empted by federal law.2 The conflict stems from the fact that the federal statutory scheme amply empowers the FDA to punish and deter fraud against the Agency, and that this authority is used by the Agency to achieve a somewhat delicate balance of statutory objectives. The balance sought by the Agency can be skewed by allowing fraud-on-the-FDA claims under state tort law.

A lot of that language applies with even more force to the regulation of immigration, it seems to me. Immigration is clearly a federal concern, not traditionally regulated by states. And the federal government strikes a number of delicate balances with immigration law, not least of which is our foreign policy, another area of particular federal concern.

[Bricker]

Originally Posted by Richard Parker

I incorrectly assumed that the staking of a wager reflected some conviction beyond that which could be described as subjecting you to mild surprise if wrong.

If I'm standing at the craps table, and someone says, "I'll bet you 2 to 1 it's a seven!" then I'll take that bet, even though I would feel only mild surprise if a seven actually comes up.

When you say, "I don't believe the courts will see it that way," you're excluding the U.S. District Court for the District of Arizona and the Ninth Circuit Court of Appeals, which seems like an odd definition of "courts." Or do you mean that something about further factual development might change the outcome?

I meant the final judgement rendered by the court system.

[Diogenes the Cynic]

I wold submit that your confidence is based entirely on knowing that the Supreme Court has a conservative majority and not on the actual merits of the case. If SCOTUS had a liberal majority, you wouldn't be betting.

[Bricker]

Originally Posted by Diogenes the Cynic

I wold submit that your confidence is based entirely on knowing that the Supreme Court has a conservative majority and not on the actual merits of the case. If SCOTUS had a liberal majority, you wouldn't be betting.

Which "merits" do you mean?

That question probably doesn't matter, because either way, you're right (in a sense, anyway) and wrong (in another sense).

If you're talking about the merits of the federal preemption question, this is not an area of law that always lends itself to utterly clear determinations. Look at American Insurance Association v Garamendi. At issue there was a California law, the Holocaust Victim Insurance Relief Act of 1999, that was intended to allow Holocaust survivors and their families to collect on life insurance payments from policies issued to Holocaust decedents by German insurance companies. Without being able to point to any specific provision of federal law, treaty, or even any statement of an executive brach contrary purpose, the Supreme Court said:

California seeks to use an iron fist where the President has consistently chosen kid gloves. The efficacy of the one approach versus the other is beside the point, since preemption turns not on the wisdom of the National Government's policy but on the evidence of conflict. Here, the evidence is more than sufficient to demonstrate that HVIRA stands in the way of the President's diplomatic objectives

But this was a 5-4 decision, and who were the dissenters? Scalia, Thomas, Ginsberg, and Stevens -- hardly "the conservatives" or "the liberals" in a bloc. Justice Ginsburg wrote the dissent, which Stevens, Thomas, and Scalia joined, and she said:

Although the federal approach differs from California's, no executive agreement or other formal expression of foreign policy disapproves state disclosure laws like the HVIRA. Absent a clear statement aimed at disclosure requirements by the "one voice" to which courts properly defer in matters of foreign affairs, I would leave intact California's enactment.

It's obvious, I suppose, which approach I feel is correct.

So how are you right? My confidence is based on the current Court's composition, yes, but not as a strict "liberal/conservative" breakout, but on what the justices have said in the past on similar issues. Obviously, if the current Court included O'Connor and Souter, I might sing a different tune.

[Bricker]

Supreme Court heard oral arguments today.

Court observers seem to think the Court is leaning towards letting Arizona keep their law. The only area where there seemed to be some sentiment for stomping on them was the trespass -- that is, Arizona making it a crime to be in Arizona if you're an undocumented alien.

[Richard Parker]

Someone should email Scalia a copy of Buckman. Based on the argument, in which he maintains that enforcement priorities have never been the basis for preemption, he seems to have forgotten his participation in that case.

Alas, we're still only at the PI.

[SantaMan]

http://westreferenceattorneys.com/20...eversal-rates/

[Bricker]

Originally Posted by SantaMan

http://westreferenceattorneys.com/20...eversal-rates/

From your link:

The Times points out that while seventy-nine percent may not be unusual in terms of past records, twelve of the reversals this year were unanimous which, it argues, may indicate that the Ninth Circuit is more “often out of step with even the high court’s liberal justices.” But implicit in this remark is an assumption that Supreme Court opinions, even if unanimous, are somehow more “correct” – certainly, a debatable conclusion.

Debate away. But for the purposes of my comment, yes, the Supreme Court is more correct, in that it definitively sets the law of the land. If the discussion revolves around whether a particular legal proposition will ultimately survive, and someone points out the Ninth Circuit opposes it, the fact that the Ninth gets smacked down as often and as thoroughly as it does is certainly relevant for predicting what the ultimate fate will be.

If you wish to argue that there is some other authority, more "right" than SCOTUS, go ahead. My point was simply what the law will end up being. And for that question, yes: Supreme Court opinions are in fact more correct.

[SantaMan]

Originally Posted by Bricker

From your link:
the fact that the Ninth gets smacked down as often and as thoroughly as it does is certainly relevant for predicting what the ultimate fate will be.

So the 9th doesn't get reversed signifcantly (percentage wise) but when it is reversed, it gets more definitively reversed?
This is not what I hear when people say "most reversed", but if that's your nuance, go with it, I guess.
I am assuming "smacked down" does not refer to run of the mill reversals, but only for unanimous reversals? Otherwise the "as often"" would seem to be a stretch.

As far as "who is right more often", I have no dog in that fight.

[CoolHandCox]

From the above link, 9th Circuit is third most reversed; without comment (emphasis added):

The [Supreme] Court reversed or vacated seventy-nine percent of the decisions it reviewed. Circuits with the highest percentage of reversals included the [1st] Sixth Circuit (eighty-three percent) and the [2nd] Fifth Circuit (eighty percent). The [3rd] Ninth Circuit came in third at seventy-nine percent.

There is nothing remarkable about these figures. SCOTUS scorecards demonstrate that over time the Supreme Court will typically reverse or remand seventy to seventy-five percent of the cases it hears. Most (if not nearly all) circuits are reversed at levels well above the fifty-percent mark year after year...What is interesting, though, is the reaction to these numbers – in particular, the media’s condemnation of the Ninth Circuit...

[Richard Parker]

And the Supreme Court has ruled that 3 of the 4 provisions of the Arizona law are unconstitutional. It has withheld judgment on the constitutionality of the requirement that officers check immigration status.

ETA: Opinion here: http://www.supremecourt.gov/opinions...11-182b5e1.pdf

[Bricker]

Well, I was wrong. But not a huge surprise, since I always regarded the preemption argument as the strongest one:

Originally Posted by Bricker

Well, if it gets overturned on the basis over preemption, I'll be mildly surprised, but not shocked to my very core. I regard the preemption argument as wrong but tenable.

If it's overturned because of some Equal Protection-type claim, I will humbly and sincerely eat helping after helping of crow.

So -- I'm mildly surprised, but not shocked to my very core. I regarded the preemption argument as wrong but tenable, and it turns out to be tenable enough to be right.

Good call, Richard Parker.

[Richard Parker]

If three justices agree with your position, there's not much room for bragging about legal acumen on either side. It was close enough to warrant certiorari and to split the court, after all. So while I believe this bet has technically won me certain bragging rights, I choose not to exercise them at this time.

I would point out that we got the Chief though.

Do we suppose that the fact that Kennedy drafted this even though the Chief was in the majority means that the Chief will be drafting the Obamacare opinion?

[Bricker]

Originally Posted by Richard Parker

If three justices agree with your position, there's not much room for bragging about legal acumen on either side. It was close enough to warrant certiorari and to split the court, after all. So while I believe this bet has technically won me certain bragging rights, I choose not to exercise them at this time.

I would point out that we got the Chief though.

Do we suppose that the fact that Kennedy drafted this even though the Chief was in the majority means that the Chief will be drafting the Obamacare opinion?

Do they horsetrade like that?

[John Mace]

What was the breakdown of justices concurring with the various rulings? In particular, which justices upheld the "show me your papers" provision?

[BobLibDem]

Originally Posted by John Mace

What was the breakdown of justices concurring with the various rulings? In particular, which justices upheld the "show me your papers" provision?

Moe Alito, Larry Thomas, and Curly Scalia all wrote opinions that they would have upheld all 4 provisions.

[Bricker]

Originally Posted by John Mace

What was the breakdown of justices concurring with the various rulings? In particular, which justices upheld the "show me your papers" provision?

All of them.

I think. At least, all said it couldn't be challenged unless the challengers showed it was being misused; it wasn't improper on its face.

The majority upheld section §2(B), which is described in the opinion thusly: "[It] requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person’s immigration status with the Federal Government." AT least , they said it couldn't be struck down unless a challenger showed it was being applied in an unconstitutional way.

The majority said:

Section 2(B) of S. B. 1070 requires state officers to make
a “reasonable attempt . . . to determine the immigration
status” of any person they stop, detain, or arrest on some
other legitimate basis if “reasonable suspicion exists that
the person is an alien and is unlawfully present in the
United States.”
.
.
.
However the law is interpreted, if §2(B) only requires
state officers to conduct a status check during the course
of an authorized, lawful detention or after a detainee has
been released, the provision likely would survive pre-
emption—at least absent some showing that it has other
consequences that are adverse to federal law and its objec
tives. There is no need in this case to address whether
reasonable suspicion of illegal entry or another immigra
tion crime would be a legitimate basis for prolonging a
detention, or whether this too would be preempted by
federal law.

Everyone in the majority agrees with that. In dissent, Scalia still agrees with that proposition:

Originally Posted by Scalia dissent

It is impossible to make such a finding [that §2(B) is unconstitutional]
without a factual record concerning the manner in which
Arizona is implementing these provisions—something the
Government’s pre-enforcement challenge has pretermitted.

And Thomas says something even more concrete in favor of § 2(B). Kagan took no part in the decision.

ETA: The "I think" above means "I think the provision you mean by 'show me your papers' is the one called § 2(B)."

[Jophiel]

Originally Posted by Richard Parker

Do we suppose that the fact that Kennedy drafted this even though the Chief was in the majority means that the Chief will be drafting the Obamacare opinion?

Conventional wisdom is that Roberts will be drafting the Obamacare decision no matter what. Either because he's in the majority against it or because he'll side with the majority for (if it was going that way) it in order to write the decision and strictly limit its reach.

[elucidator]

In German?

[Bricker]

And.... I have to say, I'm not really unhappy with this outcome. What we're left with is a law that requires an officer to check someone's immigration status if there's an acceptable reason to do so, but not to detain that person any longer than he otherwise could. And if the immigration check shows a problem, it's up to the folks at INS to ask for a detainer or not.

[elucidator]

And he could keep them into the slammer for 48 hours while they "check". But they can pretty much fuck with you anyway if they don't like your attitude, so nothing much has changed.

[Bricker]

Originally Posted by elucidator

And he could keep them into the slammer for 48 hours while they "check". But they can pretty much fuck with you anyway if they don't like your attitude, so nothing much has changed.

No, I think the Court signaled pretty clearly that that kind of detention to check immigration status would be a deal-breaker.

[elucidator]

"Your papers are in order. Why are your papers in order?"

[Fear Itself]

So, what would happen if a factually illegal alien is stopped, and when asked about his immigration status, relies, "I am a US citizen." ?

Can he be detained? Since US citizens are not required to carry documentation of their immigration status, does the inquiry stop there?

[Richard Parker]

Originally Posted by Fear Itself

So, what would happen if a factually illegal alien is stopped, and when asked about his immigration status, relies, "I am a US citizen." ?

Can he be detained? Since US citizens are not required to carry documentation of their immigration status, does the inquiry stop there?

Under the ruling, even if a state policeman has probable cause to believe an individual is an illegal immigrant, he may not make an arrest on that basis. Thus, your encounter comes to an end even if the immigrant replies, "I overstayed my visa, what's it to 'ya?"

The officer is free to call INS, but not detain the immigrant. The officer is also free to make an arrest (jaywalking?), detain for a reasonable period while INS processes the request, and follow an INS 48-hour detainer if it is issued.

[JKellyMap]

Originally Posted by Fear Itself

So, what would happen if a factually illegal alien is stopped, and when asked about his immigration status, relies, "I am a US citizen." ?

Can he be detained? Since US citizens are not required to carry documentation of their immigration status, does the inquiry stop there?

Or what about the opposite....if I, as a US citizen, decide to do some Freedom Rider-style activity, go to Arizona, carry no papers, and tell an officer (if asked) that I'm NOT a US citizen (a la the friends of Spartacus) -- or, just refuse to answer -- can the cop detain me while he contacts the feds? Sure looks that way.

I know you're supposed to answer cops' questions fully and honestly for most things, but this has been essentially declared beyond their purview, so does that change things?

[Bricker]

Originally Posted by Fear Itself

So, what would happen if a factually illegal alien is stopped, and when asked about his immigration status, relies, "I am a US citizen." ?

Can he be detained? Since US citizens are not required to carry documentation of their immigration status, does the inquiry stop there?

I'd repeat what I said in the interminable SB1070 threads: most probably yes, although the officer can check while he's completing the detention for the primary offense.... writing the ticket for speeding, for example.

But also as I pointed out in those threads, similar protections go unused all the time. "Can I search your car?" is asked in some form all the time, and all the suspect has to do to end that inquiry is answer in the negative... but many don't.

(Of course, as I laid out in detail in those threads, it's a but more subtle than that; police are trained to elicit consent by the way they ask their questions: "Say, you don't have any machine guns, grenades, anti-tank weapons back there, anything I should be worried about, do you? .... No? Mind if I take a quick look just for my safety?")

[Richard Parker]

Just to sum up:

If a cop stops someone, or otherwise detains him, for some reason other than immigration status -- e.g., speeding, jaywalking, or murder -- they can call INS to verify his immigration status. It is an open question how long they can keep him on that basis before hearing back from INS about what to do. But the Supreme Court made clear that it isn't very long.

If INS responds that the person is an illegal immigrant, but INS isn't interested, then the police can't hold him for the immigration issue. If the INS responds that the person is an illegal immigrant, and requests that he be detained, then the police can choose to follow that request and detain him for 48 hours (or not, if they don't want, since the feds cannot force local police to do their dirty work).

In no event can the police initially stop or otherwise detain someone solely for suspicion of an immigration violation. That's the job of the INS.

[Bricker]

Originally Posted by Richard Parker

In no event can the police initially stop or otherwise detain someone solely for suspicion of an immigration violation. That's the job of the INS.

Yes, but to be crystal clear: the Arizona law, even the parts struck down, did not purport to authorize that anyway.

[Richard Parker]

Originally Posted by Bricker

Yes, but to be crystal clear: the Arizona law, even the parts struck down, did not purport to authorize that anyway.

Huh?

Section 6 authorizes officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.” §13–3883(A)(5).

[JKellyMap]

Thank you, Richard Parker (and Bricker, and others), for that clear summary.

[Really Not All That Bright]

Is anyone saying a police officer can't ask for a driver's license when he pulls over a driver?

[doorhinge]

Originally Posted by Really Not All That Bright

Is anyone saying a police officer can't ask for a driver's license when he pulls over a driver?

According to the linked story, Chihuaha didn't have any identification. A drivers license would be considered identification.

When the deputy asked him for identification, he didn't have any because he's an illegal immigrant. The 36-year-old came from Mexico 12 years ago. Chihuaha was jailed for 3 days while his case was referred to federal immigration authorities. Now his family, including 13-year-old Abril, faces deportation.

A police officer can ask for a drivers license. They can also ask where you were born and if they can search your vehicle if they have a demonstrable reason to do so.

[Really Not All That Bright]

I repeat: has anyone said the police can't ask a driver for a driver's license?

[BigT]

They aren't following the law, because the law is not just about illegal immigrants. It includes rules on who has the right to enforce it. And that is the federal executive branch, and thus prosecuting those they do not choose to prosecute is violating the law, due to the supremacy clause.

[Really Not All That Bright]

Arizona wasn't trying to prosecute anyone. It can't. It was trying to hold them for further action by the feds, which is slightly different.

[GIGObuster]

Darn it, I really have to add a sarcasm tag to my posts, the part of "If Arizona wants to abuse and overreach on who to prosecute, that is fine" was indeed sarcasm. I actually expect Arpaio and henchmen to continue with the abuse.

[Bricker]

The law goes into effect next week. Opponents just lost a last-ditch effort to try to get a federal court to further hold off. Arizona may indeed check people for immigration violations as permitted in their law, but of course cannot prosecute those violations -- they can notify the feds and that's it.