9th Cir: Arizona Immigration Law Preempted as Obstacle to Objectives of Congress

The Ninth Circuit affirmed a preliminary injunction enjoining enforcement of 4 provisions of Arizona’s immigration law, Support Our Law Enforcement and Safe Neighborhoods Act (“Act”), SB 1070.

The court found the Act to be preempted by federal immigration law, because the Arizona statute was an obstacle to the full purposes and objectives of Congress.  U.S. v. Arizona, 2011 WL 1346945 (9th Cir. Apr. 11, 2011).  Paez (nominated by Clinton) wrote the court opinion.  Noonan (nominated by Reagan) wrote a concurrence.  Bea (nominated by Bush II) penned a vehement dissent, though he dissented only in regard to two of the four challenged provisions.

The court began by considering preemption of Section 2(B) of the law, which mandates verification of immigration status with the federal government for any person who is arrested.  Later in the provision, the law states that a person is presumed not to be unlawfully present in the United States if the person provides a form of identification listed, such as a driver’s license. Arizona argued that law enforcement officials are required to check immigration status only if there is reasonable suspicion about immigration status.  The court rejected that argument as contrary to the clear language of the statute.

The court set forth two preemption principles.  First, the “purpose of Congress is the ultimate touchstone.”  Second, the presumption against preemption applies when Congress legislates in a field traditionally occupied by states.  Yet, since the identification of immigrants is not a matter typically left to states, no presumption against preemption was warranted.

The court found that, in the Immigration and Naturalization Act (“INA”), Congress intended for state efforts to identify immigrants to be closely supervised by the Attorney General.  The court stated: “Not only must the Attorney General approve of each individual state officer, he or she must delineate which functions each individual officer is permitted to perform.”  The court held that 2(B) was preempted by these provisions of the INA requiring supervision by the Attorney General.  In response to the dissent focusing on the INA requirement for states to “cooperate” with the federal government, the majority stated in a footnote: “given that the United States has had to sue the State of Arizona to stop it from enforcing S.B. 1070, it is quite clear that Arizona is not ‘cooperating’ with the federal government in any sense of the word. Arizona does not seek intergovernmental cooperation—it seeks to pursue its own policy of ‘attrition through enforcement.’”  The court concluded that 2(B) is an obstacle to the full purposes and objectives of Congress, as expressed in the INA.

The court further stated that the Act in general “has had a deleterious effect on the United States’ foreign relations, which weighs in favor of preemption.”  The court noted that numerous countries, such as Mexico and many others in South America, had publicly criticized the Arizona law.  An Assistant Secretary for the Department of Homeland Security testified that the Arizona law had a deleterious effect on the federal government’s efforts to secure international cooperation to safeguard America’s borders.

Section 3 of the Act imposes fines and jail terms for failure to carry an alien registration document, unless a person has authorization to be in the US.  The court again concluded that there is no presumption against preemption for such a state law.  The INA has federal penalties for failure to carry registration documents, with no reference to state participation.  Therefore, the court found, the Arizona law was contrary to congressional intent. The court further indicated that the INA provides a comprehensive statutory scheme for regulating registration which preempted the state law.

Section 5(C) of the law imposes criminal sanctions for an unauthorized alien applying for work, soliciting work in a public place, or working as an employee or independent contractor.  The court noted that in a prior decision, the Ninth Circuit had held that the power to regulate the employment of unauthorized aliens is within traditional state police powers.  The court therefore did apply the presumption against preemption in reviewing this provision.

The applicable federal law regarding employment of aliens is the Immigration Reform and Control Act (IRCA).  In that statute, Congress decided to place consequences on employers who hire undocumented immigrants but not on employees.  Relying on a prior Ninth Circuit decision, the court held that the text and legislative history of the IRCA demonstrated that Congress had decided that aliens who obtained work should not be incarcerated or fined for working.  The court concluded that it was “likely” that Congress intended to supersede state authority.  The court stated that by “pulling the lever of criminalizing work,” the Arizona Act stands as an obstacle to the full purposes and objectives of Congress.

Section 6 of the Act permits arrest of an individual if the officer believes that the individual has committed an offense that makes the person removable from the United States.  The court found that arresting immigrants for civil immigration violations is not a field traditionally occupied by states, and therefore the presumption against preemption did not apply.  The court concluded that “Section 6 authorizes state and local officers to effectuate more intrusive arrests than Congress has permitted.”   As a result, “Section 6 interferes with the carefully calibrated scheme of immigration enforcement that Congress has adopted, and it appears to be preempted.”  The court noted that its decision was consistent with a Sixth Circuit opinion but contrary to a Tenth Circuit opinion.  The Ninth Circuit panel found the Tenth Circuit’s analysis of legislative history to be unpersuasive.  The Ninth Circuit concluded that Section 6 stands as an obstacle to the full purposes and objectives of Congress.

For all 4 provisions at issue, the court indicated that the “potential to lead to 50 different state immigration schemes piling on top of the federal scheme, weigh[s] in favor of the preemption” of the Arizona law.

After lengthy consideration of likelihood of success on the merits, the court summarily concluded that all the other factors for a preliminary injunction were met.

Justice Noonan joined the opinion but wrote a separate concurrence “to emphasize the intent of the [Arizona] statute and its incompatibility with federal foreign policy.”

Justice Bea wrote a visceral dissent that mocked the majority, even though he concurred with much of the majority’s reasoning in regard to Sections 3 and 5(C) as well as the majority’s conclusion that those 2 provisions were preempted.  Nevertheless, Bea stated: “a foreign nation may not cause a state law to be preempted simply by complaining about the law’s effects on foreign relations generally. We do not grant other nations’ foreign ministries a ‘heckler’s veto.’”

Bea ridiculed the majority’s interpretation of the text of Section 2(B) with a footnote containing a lengthy quote about Humpty Dumpty from Lewis Carroll, Through the Looking Glass and What Alice Found There.  The dissent asserted that there was no federal foreign relations goal that Section 2(B) conflicted with.

Regarding Section 6, the dissent argued that the majority had gone beyond the limited arguments of the federal government, interpreting the federal immigration law too broadly.  The dissent contended that states had “inherent authority to enforce federal immigration law” and therefore Section 6 was not conflict preempted.

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