Ninth Circuit Upholds Injunction Against AZ Immigration Law

[SantaMan]

@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/11pdf/11-182b5e1.pdf

[Richard_Parker]

The Court analyzed four provisions of the law:

Section 3 and Section 5(C) both created Arizona law crimes for violation of immigration law – one attempting to mirror federal law and the other creating a new criminal prohibition related to employment. Both are preempted because Congress has “occupied the field,” meaning it has legislated in such a way as to implicitly prevent the states from passing their own laws on the subject. The Court cited Buckman, among other precedents, discussed above.

Where Congress occupies an entirefield, as it has in the field of alien registration, even complementary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 249 (1984). . . . Permitting the State to impose its own penalties for the federal offenses here would conflict withthe careful framework Congress adopted.* Cf. Buckman Co. v. Plaintiffs’ Legal Comm.*, 531 U. S. 341, 347–348 (2001) (States may not impose their own punishment for fraud on the Food and Drug Administration) . . . Were §3 to come into force, the Statewould have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies . . . The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment . . . Under §5(C) of S. B. 1070, Arizona law would interfere with the careful balance struck byCongress with respect to unauthorized employment of aliens.

Section 6 involves empowering the police to arrest people for suspected immigration violations. This provision too was preempted, in part because it is not a crime to be present unlawfully, and because federal law is otherwise the sole authority on when arrest of immigrants is appropriate. The Court relied extensively on 1357(g) which is the law setting up the ability for states to enter formal agreements with the federal government to mutually cooperate to enforce immigration law under the supervision of the Attorney General, as predicted here.

This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A principal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See §1357(g)(1); see also§1103(a)(10) (authority may be extended in the event of an“imminent mass influx of aliens off the coast of the United States”); §1252c (authority to arrest in specific circumstance after consultation with the Federal Government);§1324(c) (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements aresubject to the Attorney General’s direction and supervision. §1357(g)(3). . . . As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigration officer. See §1357(g)(2); cf. 8 CFR §§287.5(c) (arrest power contingent on training), 287.1(g) (defining the training). By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.

Finally, section 2(B) is the provision requiring officers to try to determine the immigration status of people stopped or detained for other legitimate reasons. The Court ruled that whether this provision is preempted will depend on how it is construed by the Arizona courts, in part because 1357(g) permits state officers to do this without the kind of agreement otherwise required for cooperation on enforcement of immigration laws.

[John_Mace]

Thanks for the analysis. As usual, my eyes glazed over when I tried to read the decision.

Does this mean that the last provision needs to make another round through the AZ courts, and then back to the SCOTUS? Else, how is it to be determined whether or not the state courts get it “right”?

[Simplicio]

Legalities aside, is there any point to having cops check peoples immigration papers if being an illegal immigrant is no longer state law?

[Richard_Parker]

@John_Mace

Does this mean that the last provision needs to make another round through the AZ courts, and then back to the SCOTUS?

Yes. Perhaps along with other so-called “as-applied” challenges, such as the racial profiling challenge.

@Simplicio

Legalities aside, is there any point to having cops check peoples immigration papers if being an illegal immigrant is no longer state law?

Sure. If the cops suspect that someone they have detained is an illegal immigrant, they can call INS and give them the info underlying the suspicion. INS can then issue a “detainer,” which is a request for the local jail to hold the person until INS can investigate, which by statute is 48 hours, I believe.

[Bricker]

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

@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]

@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?

[Bricker]

@Richard_Parker

Yes. Perhaps along with other so-called “as-applied” challenges, such as the racial profiling challenge.

Sure. If the cops suspect that someone they have detained is an illegal immigrant, they can call INS and give them the info underlying the suspicion. INS can then issue a “detainer,” which is a request for the local jail to hold the person until INS can investigate, which by statute is 48 hours, I believe.

And the opinion gives a good road map for how to construe the check-during-detention section (§ 2(B)) in a way that will survive. As long as those §2(B) checks are done during a legitimate detention and don’t cause the detention to run long, it should survive.

[Jophiel]

@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.

[BobLibDem]

@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.

[elucidator]

In German?

[Bricker]

@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:

@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).”

[Richard_Parker]

@Bricker

Do they horsetrade like that?

Not horsetrading as such. But typically if the CJ is in the majority on one of the biggest opinions of the term, he will write it, unless he is writing the other big one, I believe.

@John_Mace

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

Not sure which provision that refers to, since multiple ones would have required the immigrant to show papers. Kennedy, Roberts, Ginsburg, Breyer, Sotomayor agreed that 3/4 preempted but the 4th is uncertain. Kagan recused. Thomas, Scalia, and Alito all wrote separately. Thomas and Scalia would have found the entire law kosher. Alito agreed that section 3 was preempted and that 2(B) was uncertain, but said the rest was OK.

@Bricker

And the opinion gives a good road map for how to construe the check-during-detention section (§ 2(B)) in a way that will survive. As long as those §2(B) checks are done during a legitimate detention and don’t cause the detention to run long, it should survive.

Agreed.

[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.

[John_Mace]

@Bricker

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

Yes, that’s the one. It’s being called that on NPR today, so I thought that was commonly known, but maybe 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.