9th Circuit Court of Appeals Upholds Blocking Arizona Law

April 11, 2011

"That 50 individual states or one individual state should have a foreign policy is absurdity too gross to be entertained. In matters affecting the intercourse of the federal nation with other nations, the federal nation must speak with one voice." Justice Richard A. Paez

In a world of depressing and unwelcome headlines, today's news is cause for celebration.  The Ninth Circuit Court of Appeals supported Arizona Federal Judge Susan Bolton's opinion blocking provisions in the controversial Arizona immigration.

The three member panel who wrote the 87-page opinion was composed of Justices Richard A. Paez, John T. Noonan, and Carlos T. Bea. The opinion was written by Justice Paez, concurred by Justice Noonan with partial concurrence and partial dissent by Justice Bea.

A year ago Arizona Senate Bill 1070 was signed into law. The bill was labeled as unconstitutional, racist, divisive and It was met with protests, boycotts and outrage.

On July 6, 2010 President Obama and the U.S. Department of Justice sued Arizona to block the law.  The 25-page complaint was filed in the District Court of Arizona and names the State of Arizona and Governor Jan Brewer as defendants.  The lawsuit called for declaratory and injunctive relief to prevent the law from going into effect.

One day before the Arizona anti-immigration law was scheduled to go into effect, on July 28, 2010 Judge Susan Bolton of the U.S. District Court of Arizona blocked the most controversial provisions of S.B. 1070. The provisions that were blocked by the preliminary injunction include: requiring verification of immigration status, arrest for failure to carry immigration papers, making it illegal for an illegal immigrant to solicit work, and allowing a warrantless arrest for a potentially removable alien. These provisions are all preempted by federal immigration law according to the order.

Within days of the ruling, Arizona Governor Jan Brewer filed an appeal CNMI AG Edward Buckingham joined 8  Republican AGs in filing a legal brief to support the Arizona law. Most of the Republican AGs were running for the office of Attorney General and their action was labeled a political ploy. AG Buckingham apparently supported the law because it fits the administration's agenda of maintaining local control of labor and immigration.

Today's decision is a victory for human rights and the Obama Administration. Hopefully, it will stand as a deterrent to states with Republican governors who are threatening copycat legislation. Clearly, the Arizona law (and the CNMI's PL 15-1078 and PL 17-1) are preempted by federal law.

Justice Paez wrote:
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 [Homeland Security] agents.

Congress has created a comprehensive and carefully calibrated scheme and has authorized the Executive to promulgate extensive regulations for adjudicating and enforcing civil removability.
I think one of the interesting points in the opinion concerns the severe damage that the racist Arizona law has played as far as foreign relations. From Justice Paez:
The record before this court demonstrates that S.B. 1070 does not threaten a “likelihood . . . [of] produc[ing] something more than incidental effect;” rather, Arizona’s law has created actual foreign policy problems of a magnitude far greater than incidental. Garamendi, 539 U.S. at 419 (emphasis added). Thus far, the following foreign leaders and bodies have publicly criticized Arizona’s law: The Presidents of Mexico, Bolivia, Ecuador, El Salvador, and Guatemala; the governments of Brazil, Colombia, Honduras, and Nicaragua; the national assemblies in Ecuador and Nicaragua and the Central American Parliament; six human rights experts at the United Nations; the Secretary General and many permanent representatives of the Organization of American States; the Inter-American Commission on Human Rights; and the Union of South American Nations.

In addition to criticizing S.B. 1070, Mexico has taken affirmative steps to protest it. As a direct result of the Arizona law, at least five of the six Mexican Governors invited to travel to Phoenix to participate in the September 8-10, 2010 In Crosby, the Supreme Court gave weight to the fact that the Assistant Secretary of State said that the state law at issue “has complicated its dealings with foreign sovereigns.” 530 U.S. at 383-84. Similarly, the current Deputy Secretary of State, James B. Steinberg, has attested that S.B. 1070 “threatens at least three different serious harms to U.S. foreign relations.”

In addition, the Deputy Assistant Secretary for International Policy and Acting Assistant Secretary for International Affairs at DHS has attested that Arizona’s immigration law “is affecting DHS’s ongoing efforts to secure international cooperation in carrying out its mission to safeguard America’s people, borders, and infrastructure.” The Supreme Court’s direction about the proper use of such evidence is unambiguous: “statements of foreign powers necessarily involved[,] . . . indications of concrete disputes with those powers, and opinions of senior National Government officials are competent and direct evidence of the frustration of congressional objectives by the state Act.” Crosby, 530 U.S. at 385.14 Here, we are presented with statements attributable to foreign governments necessarily involved and opinions of senior United States’ officials: together, these factors persuade us that Section 2(B) thwarts the Executive’s ability to singularly manage the spillover effects of the nation’s immigration laws on foreign affairs.
Justice Noonan concurred with Justice Paez.  These three statements from his opinion stood out to me:
"Federal foreign policy is a pleonasm. What foreign policy can a federal nation have except a national policy? That fifty individual states or one individual state should have a foreign policy is absurdity too gross to be entertained. In matters affecting the intercourse of the federal nation with other nations, the federal nation must speak with one voice."

"The foreign policy of the United States preempts the field entered by Arizona. Foreign policy is not and cannot be determined by the several states. Foreign policy is determined by the nation as the nation interacts with other nations. Whatever in any substantial degree attempts to express a policy by a single state or by several states toward other nations enters an exclusively federal field." 
"The Arizona statute before us has become a symbol. For those sympathetic to immigrants to the United States, it is a challenge and a chilling foretaste of what other states might attempt. For those burdened by unlawful immigration, it suggests how a state could tackle that problem. It is not our function, however, to evaluate the statute as a symbol. We are asked to assess the constitutionality of five sections on their face integrated by the intent stated in Section 1. If we read Section 1 of the statute, the statute states the purpose of providing a solution to illegal immigration into the United States. So read, the statute is a singular entry into the foreign policy of the United States by a single state. The district court properly enjoined implementation of the four sections of the statute."
Governor Brewer has stated that Arizona will appeal.

Read the opinion:

According to Judge Bolton's order and this opinion from the 9th Circuit, provisions within the CNMI labor laws, both P.L. 15-108 and P.L. 17-1 should  be challenged.  The CNMI took their local immigration law and recodified it under their local labor law after federal immigration was applied to the CNMI.  They also added some provisions that conflict with and are preempted by federal law.  The governor's "special counsel," Howard Willens, clearly outlined the scheme in his comment to the Department of Homeland Security.  This conflicts with the federal rulings:
The current federal alien registration requirements create an integrated and comprehensive system of registration. See id. (finding that the Alien Registration Act, the precursor to the current alien registration scheme, created a “single integrated and all embracing system” of registration); 8 U.S.C. §§ 1201, 1301-06 (providing federal registration requirements and penalties). While the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens, De Canas, 424 U.S. at 358, the Supreme Court has also evaluated the impact of the comprehensive federal alien registration scheme and determined that the complete scheme of registration precludes states from conflicting with or complementing the federal law. Hines, 312 U.S. at 66-67. 
Section 3 attempts to supplement or complement the uniform, national registration scheme by making it a state crime to violate the federal alien registration requirements, which a state may not do “inconsistently with the purpose of Congress.” Hines, 312 U.S. at 66-67; see also A.R.S. § 13-1509(A). While Section 3 does not create additional registration requirements, the statute does aim to create state penalties and lead to state prosecutions for violation of the federal law. Although the alien registration requirements remain uniform, Section 3 alters the penalties established by Congress under the federal registration scheme. Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration. See Hines, 312 U.S. at 67. As a result, the Court finds that the United States is likely to succeed on its claim that Section 3 is preempted by federal law.
Since CNMI's law, P.L. 17-1 does create additional alien registration requirements it is absolutely clear that it is preempted by federal law.

For months the INCIS and the Federal Labor Ombudsman have been telling the CNMI foreign workers and the employers that umbrella permits cannot be revoked, and no foreign worker is required to register with the CNMI Department of Labor. The CNMI AG and DOL have defiantly challenged the federal agencies and federal law and attacked the federal officials who back the federal law's supremacy clause.

Judge Bolton ruled that "... the Court finds that Plaintiff is likely to succeed on its claim that Arizona’s new crime for working without authorization, set forth in Section 5(C) of S.B. 1070, conflicts with a comprehensive federal scheme and is preempted." This should apply similarly to CNMI laws that attempt to deny business licenses from employers who employees have not registered with DOL as well as some other provisions.

Regarding Section 6 of S.B. 1070 that "provides that an officer may arrest a person without a warrant if the officer has probable cause to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States,” Judge Bolton stated:
Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new A.R.S. § 13-3883(A)(5). By enforcing this statute, Arizona would impose a “distinct, unusual and extraordinary” burden on legal resident aliens that only the federal government has the authority to impose. Hines, 312 U.S. at 65-66. The Court thus finds that the United States is likely to succeed on the merits in showing that A.R.S. § 13-3883(A)(5), created by Section 6 of S.B. 1070, is preempted by federal law.
Read Judge Bolton's Order here.

The fact that Arizona even passed such a discriminatory law, the fact that CNMI has an even more discriminatory law than Arizona's, and the fact that other states are considering implementing their own racist laws should sound an alarm in Congress.  While the preliminary injunction can be viewed as a victory, no real victory will be realized until the passage of comprehensive immigration reform.  The members of the U.S. Congress must act on this now!

The ruling today confirms that key provisions within the CNMI "labor" laws are preempted by federal law. The CNMI law must be challenged.

See also these related posts:

President Obama Pushes Immigration Reform as Arizona Governor Signs Misguided Bill Into Law
Immigration Reform
President Obama Sues Arizona
Fallout From Arizona "Immigration" Law
Hate Group Pens Congressional Brief in Support of Arizona Law
Immigration Reform Debate
A Victory for Human Rights and the Obama Administration: Ruling on Arizona Immigration Law Issued
Two Days
CNMI AG Joins Michigan and 8 Other AGs to Back the Arizona Immigration Law
Arizona Files Appeal in Face of Nationwide Protests
Alien Registration

Disclaimer: This is not a legal blog. No opinion or statement should be perceived as legal advice. All posts are the opinion of the author or contributors who are expressing their First Amendment Rights.


Anonymous said...

There is no question that the CNMI law should be challenged. The question is who will challenge it?