Arizona et al. v. United States
No. 11–182. Argued April 25, 2012 — Decided June 25, 2012
From the Majority Opinion as delivered by Justice Kennedy:
Congress has specified categories of aliens who may not
be admitted to the United States.
Unlawful entry and unlawful re-entry into the country are
federal offenses.
Once here, aliens are required to register with the Federal
Government and to carry proof of status on their person.
Failure to do so is a federal misdemeanor.
Federal law also authorizes States to deny non-citizens a
range of public benefits and it imposes sanctions on employers who hire
unauthorized workers.
Congress has specified which aliens may be removed from
the United States and the procedures for doing so.
Aliens may be removed if they were inadmissible at the time
of entry, have been convicted of certain crimes, or meet other criteria set by
federal law.
Removal is a civil, not criminal, matter.
Yet the GROUNDS for removal are "unlawful"
entry or re-entry - both acts being federal offenses.
Yet failure to register with the Federal Government is
a federal misdemeanor.
Yet failure to carry proof of status on their persons
is a federal misdemeanor.
A principal feature of the removal system is the broad
discretion exercised by immigration officials.
Up to and including "discretion" to refuse to
uphold federal law...??? I think not!
Federal officials, as an initial matter, must decide
whether it makes sense to pursue removal at all.
In other words, enforcement of existing law is...
discretionary? (But in any case, this is tangential to the matter at hand;
Arizona never claimed the power to deport illegal aliens. Basically, all
Arizona law demanded was that federal immigration officials do their job.)
If removal proceedings commence, aliens may seek asylum
and other discretionary relief allowing them to remain in the country or at
least to leave without formal removal.
Again... no one was ever disputing this.
Discretion in the enforcement of immigration law embraces
immediate human concerns.
Depends how the law is written by Congress!
Unauthorized workers trying to support their families,
for example, likely pose less danger than alien smugglers or aliens who commit
a serious crime.
Fine. But while no one is arguing against the existence
of prosecutorial discretion, there's a huge difference between prioritizing
enforcement of the law vs. refusing to enforce the law. Only Congress can
"exempt" entire categories of illegal behavior from enforcement and if
this is their will this will must be expressed concretely in law - via statute.
The equities of an individual case may turn on many
factors, including whether the alien has children born in the United States,
long ties to the community, or a record of distinguished military service.
Blah, blah, blah... again... this is for Congress to
decide - not the Chief Executive (he who is sworn to UPHOLD the law) and not a
judge or even the Supreme Court as a body unless the mechanism is to overturn
the law on Constitutional grounds. (The opposite is occurring here; the High
Court is pinning its decision on the dubious claim that Congress "intended"
their Constitutional laws to be unenforced.)
Some discretionary decisions involve policy choices that bear
on this Nation’s international relations. Returning an alien to his own country
may be deemed inappropriate even where he has committed a removable offense or
fails to meet the criteria for admission. The foreign state maybe mired in
civil war, complicit in political persecution, or enduring conditions that
create a real risk that the alien or his family will be harmed upon return. The
dynamic nature of relations with other countries requires the Executive Branch
to ensure that enforcement policies are consistent with this Nation’s foreign
policy with respect to these and other realities.
An unacceptably slippery slope. In any case, we're not
talking about targeted enforcement (or rather targeted non-enforcement) based
upon foreign nationality in relation to a specific foreign relations issue
which is of such immediate and important nature that the President must deal
with it unilaterally; we're talking about illegal aliens in toto under normal
circumstances within a framework of existing law.
[S]tate laws are preempted when they conflict with
federal law.
True... however... Arizona's law did NOT conflict with
federal law.
In preemption analysis, courts should assume that “the
historic police powers of the States” are not superseded “unless that was the
clear and manifest purpose of Congress.”
Folks... it was the Obama administration which claimed
Arizona's law was in conflict with Federal Law - it wasn't Congress! Here's
where the High Court majority's slight-of-hand shows itself! The High Court
majority deliberately conflates the actual constitutional powers of Congress
with the actions of an out of control Executive Branch which is itself failing
- deliberately failing - to abide by the Laws and clear intent of Congress!
Section 3 of Arizona's SB 1070 creates a new state misdemeanor.
It forbids the “willful failure to complete or carry an alien registration
document . . . in violation of 8 United States Code section 1304(e) or
1306(a).” In effect, §3 adds a state-law penalty for conduct proscribed by
federal law.
Yeah? So...???
The United States contends that this state enforcement
mechanism intrudes on the field of alien registration...
How...??? (That's ridiculous!)
In 1940, as international conflict spread, Congress added
to federal immigration law a “complete system for alien registration.” The new
federal law struck a careful balance. It punished an alien’s willful failure to
register but did not require aliens to carry identification cards.
Hmm... (Read on...)
Federal law now includes a requirement that aliens carry
proof of registration...
OK, so we're back to federal law requiring aliens to
CARRY proof of registration... which is what Arizona's SB 1070 required! (So
where's the conflict with federal law...???)
Aliens who remain in the country for more than 30 days
must apply for registration and be fingerprinted.
According to existing FEDERAL law.
Where Congress occupies an entire field, 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.
OK, folks... understand... at this point the High Court
majority is basing their ruling NOT on the Constitution itself, but upon past
decisions of... er... itself as an institution. While the High Court majority
is CLAIMING that it is CONGRESS which has foreclosed Arizona's ability (or the
ability of ANY state) to enact laws which MIRROR federal law, this is not the
case. Indeed, CLEARLY what the Supreme Court is doing is UNDERCUTTING federal
law and enacted by Congress! (Again... the High Court majority is siding with
the EXECUTIVE BRANCH in opposition to BOTH Arizona AND the Congress of the
United States whose will is demonstrated via existing statute - which, again,
Arizona is MIRRORING... not undercutting!
Federal law makes a single sovereign responsible for
maintaining a comprehensive and unified system to keep track of aliens within
the Nation’s borders. If §3 of the Arizona statute were valid, every State
could give itself independent authority to prosecute federal registration violations...
No! The states would be prosecuting violation of STATE
law which was written to mirror federal law! Arizona's SB 1070 would apply only
in Arizona. And again, since Arizona's SB 1070 MIRRORS rather than contradicts
federal law... (*SHRUG*)... there is simply no Constitutional basis for the
High Court to overturn it on these grounds. Period.
...“diminishing the Federal Government’s control over
enforcement” and “detracting from the ‘integrated scheme of regulation’ created
by Congress.”
Nonsense. Gobbly-gook.
Were §3 to come into force, the State would 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.
OK. Let's say we buy this on a case by case basis. Just
for the sake of argument. But we're not talking "case by case," we're
talking "blanket." We're talking prosecutorial "discretion"
which goes so far as to become executive branch undermining of actual
Congressional statute - i.e. undermining of "The Law." What the High
Court majority seems to be saying is that federal executive branch
"policies" of the moment can somehow override the actual LAW absent
some sort of immediacy or "special circumstances" that preclude the
reformulation of actual law!
There is a further intrusion upon the federal scheme.
Even where federal authorities believe prosecution is appropriate, there is an
inconsistency between §3 and federal law with respect to penalties. Under
federal law, the failure to carry registration papers is a misdemeanor that may
be punished by a fine, imprisonment, or a term of probation. State law, by
contrast, rules out probation as a possible sentence (and also eliminates the
possibility of a pardon). This state framework of sanctions creates a conflict
with the plan Congress put in place.
So then don't strike down the law - simply limit
penalties of the state law to those which exist under federal law.
Unlike §3, which replicates federal statutory
requirements, §5(C) enacts a state criminal prohibition where no federal
counterpart exists. The provision makes it a state misdemeanor for “an
unauthorized alien to knowingly apply for work, solicit work in a public place
or perform work as an employee or independent contractor” in Arizona.
And...? So...? What's the problem? This state law is
CLEARLY complimentary to federal law - not in conflict with it.
The United States contends that the provision upsets the
balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and
must be preempted as an obstacle to the federal plan of regulation and control.
Folks... again... unlawful entry and unlawful re-entry
into the country are federal offenses. If it's unlawful to be here (the U.S.)
in the first place than certainly it's illegal to be in Arizona in the first
place and thus... Arizona's SB 1070 §5(C) is CLEARLY complementary to federal
law - NOT in conflict with it.
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. ... Proposals to make unauthorized
work a criminal offense were debated and discussed during the long process of
drafting IRCA. Congress rejected them. In the end, IRCA’s framework reflects a
considered judgment that making criminals out of aliens engaged in unauthorized
work — aliens who already face the possibility of employer exploitation because
of their removable status — would be inconsistent with federal policy and objectives.
OK. But is there any paper trail showing the Congress
specifically meant for individual states to lack such power? In other words,
just because Congress declines to create a "federal offence" does
this mean that the states lack the power to create state laws whose purpose is
to further the clear intent of federal law which provides that unlawful entry
and unlawful re-entry into the country are federal offenses?
IRCA’s express preemption provision...is silent about
whether additional penalties may be imposed against the employees themselves.
Get this, folks... (Read on...)
Although §5(C) attempts to achieve one of the same goals
as federal law — the deterrence of unlawful employment — it involves a conflict
in the method of enforcement.
(*JUST SHAKING MY HEAD*)
The correct instruction to draw from the text, structure,
and history of IRCA is that Congress decided it would be inappropriate to
impose criminal penalties on aliens who seek or engage in unauthorized
employment.
I disagree! If Congress had meant to forbid individual
states from imposing criminal penalties on aliens who seek or engage in
authorized employment, then Congress would have written this into federal law!
In fact, they did so with regard to employers!
IRCA’s express preemption provision, which in most instances
bars States from imposing penalties on employers of unauthorized aliens, is
silent about whether additional penalties may be imposed against the employees
themselves.
(*SHRUG*)
As a general rule, it is not a crime for a removable
alien to remain present in the United States.
OF COURSE IT IS! IT'S AN ONGOING CRIME!
Section 6 of S. B. 1070 provides that a state officer, “without
a warrant, may arrest a person if the officer has probable cause to believe . .
. [the person] has committed any public offense that makes [him] removable from
the United States.” The United States argues that arrests authorized by this
statute would be an obstacle to the removal system Congress created.
SOUNDS INSANE, RIGHT?!
If the police stop someone based on nothing more than
possible removability, the usual predicate for an arrest is absent.
I don't see why. I don't see why because the above
"As a general rule, it is not a crime for a removable alien to remain
present in the United States" is simply insane!
Folks... if you become an "illegal alien" via
entering our borders illegally without proper approval and documentation then
how does STAYING - doubling down on the initial illegal act - render one NOT a
criminal? It's gobbly-gook! It's crazy!
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.” The law also provides that “any person who is
arrested shall have the person’s immigration status determined before the
person is released.” The accepted way to perform these status checks is to
contact ICE, which maintains a database of immigration records.
Three limits are built into the state provision. First, a
detainee is presumed not to be an alien unlawfully present in the United States
if he or she provides a valid Arizona driver’s license or similar
identification. Second, officers “may not consider race, color or national
origin . . . except to the extent permitted by the United States [and] Arizona
Constitution[s].” Third, the provisions must be “implemented in a manner
consistent with federal law regulating immigration, protecting the civil rights
of all persons and respecting the privileges and immunities of United States
citizens.”
The United States and its amici contend that, even with
these limits, the State’s verification requirements pose an obstacle to the
framework Congress put in place.
Nonsense!
The first concern is the mandatory nature of the status
checks. The second is the possibility of prolonged detention while the checks
are being performed.
The mandatory nature ensures equal treatment; as to
"prolonged" detention... (Read on...)
Consultation between federal and state officials is an
important feature of the immigration system. Congress has made clear that no
formal agreement or special training needs to be in place for state officers to
“communicate with the [Federal Government] regarding the immigration status of
any individual, including reporting knowledge that a particular alien is not
lawfully present in the United States.” And Congress has obligated ICE to
respond to any request made by state officials for verification of a person’s
citizenship or immigration status. See §1373(c); see also §1226(d)(1)(A)
(requiring a system for determining whether individuals arrested for aggravated
felonies are aliens). ICE’s Law Enforcement Support Center operates “24 hours a
day, seven days a week, 365 days a year” and provides, among other things,
“immigration status, identity information and real-time assistance to local, state
and federal law enforcement agencies.”
In other words... existing federal law should make
"prolonged" detention a very rare occurrence indeed. If local
authorities seek to subvert existing law there are existing remedies for both
federal authorities AND arrestees to rely upon.
The United States argues that making status verification
mandatory interferes with the federal immigration scheme.
Ridiculous! (How so...?!?!)
Congress has done nothing to suggest it is inappropriate to
communicate with ICE in these situations... Indeed, it has encouraged the
sharing of information about possible immigration violations.
A federal statute regulating the public benefits provided
to qualified aliens in fact instructs that “no State or local government entity
may be prohibited, or in any way restricted, from sending to or receiving from ICE
information regarding the immigration status, lawful or unlawful, of an alien
in the United States.” The federal scheme thus leaves room for a policy
requiring state officials to contact ICE as a routine matter.
Yes! Obviously!
[I]f §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 preemption — at least
absent some showing that it has other consequences that are adverse to federal
law and its objectives.
At this stage, without the benefit of a definitive
interpretation from the state courts, it would be inappropriate to assume §2(B)
will be construed in a way that creates a conflict with federal law. As a
result, the United States cannot prevail in its current challenge.
§2(B) stands! The heart of the bill stands!
§§3, 5(C), and 6 of S. B. 1070 are preempted.
I will continue this posting with the dissents of
Justices Scalia, Thomas, and Alito over the coming days...
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