On Monday, the Supreme Court handed down its decision in Arizona v. United States, upholding part of Senate Bill 1070 and striking down other parts. Last year, a previous Arizona law on immigration was also before the Supreme Court and was upheld in Chamber of Commerce v. Whiting. With both of these decisions now in the books, its possible to combine them to figure out what the rules are for state laws on immigration.
First, immigration is primarily a federal issue. Any solution to any problems with the current system for deciding who gets to come to the US, who gets to stay once they get here, and who gets sent back will be made at the national level.
Second, state laws on immigration will only be permitted if the state can point to some provision in federal law that supports the claim that the federal government has opted to permit the state to supplement federal immigration law. Last year, the Supreme Court found that federal law expressly permitted states to sanction employers who hired illegal immigrants by sanctioning licenses, and thus Arizona was free to revoke the license to do business in Arizona of any business that employed illegal immigrants. This year, federal law permits local law enforcement to contact the federal government to check immigration status of detainees, so Arizona is free to require its local law enforcement to do so.
On the opposite side of the coin, if the state tries to impose a penalty that is not permitted by federal law, that law is preempted and will be struck down. So no state fines on illegal immigrants for having a job or for being an illegal immigrant. Likewise, a state can't arrest an immigrant for being deportable in a circumstance in which a federal immigrations officer could not arrest the immigrant.
Third, the Supreme Court really did not make a decision on the validity of Section 2(B) -- the "papers please" provision. The Supreme Court rejected an argument that the provision was preempted solely because it might impose an additional workload on federal officials. Because the Administration's sole challenge was the issue of pre-emption (which was the only challenge that the Administration really had standing to make), the Supreme Court did not directly address the other potential challenges.
The Supreme Court, however, did give hints about how it would view a future challenge, and those hints were not good for Arizona. In a two-page segment, the Supreme Court suggested that the statute needed to be narrowly interpreted and that it would not authorize extending a detention beyond the period authorized by other purposes -- i.e. investigating the underlying offense and writing a ticket or, if arrested, holding until bond is posted. As the state courts have not yet interpreted and applied Section 2(B), the Supreme Court held that challenges based on speculation about how it will ultimately be interpreted by Arizona courts are premature.
The issue (and the only issue) facing the Supreme Court was whether four provisions of Senate Bill 1070 (the "Support our Law Enforcement and Safe Neighborhoods Act", a great example of Orwellian Double Speak) were preempted by federal immigration laws. There are three basic ways that laws can be preempted. First, a federal statutes (or in a very limited number of categories, a constitutional provision) can expressly forbid a law (e.g. many federal product safety laws provide that states can't put additional label requirements on products subject to those laws). Second, a state statute can conflict with a federal statute). Third, the federal statute can "occupy" a field to the extent that there is no room left for state laws.
Two important cautions about the procedural position of the case. First, the case at the present time merely involves a preliminary injunction. At this stage, the question is whether the United States can show some harm from allowing SB 1070 to go into effect and a reasonable chance that the US would prevail on the merits. Second, the challenge is a facial challenge to a law that has not been implemented. That means that the courts are supposed to allow the law to go into effect if there is any interpretation of the law which would be valid. By taking the case at the preliminary injunction phase (as shown by the argument), the Supreme Court has blown past the rules governing whena preliminary injunction is appropriate and proceeded straight to the merits that technically have not yet been decided at the trial level That leaves the fact that this is a facial challenge which helps Arizonaon some of the provisions.
At this point, one provision is likely to survive, one is a real close call, and two are likely to be in trouble.
Officially, the new Supreme Court term does not start until next Monday. However, this Monday is the "long conference" -- the conference in which the Supreme Court decides which cases to accept out of those cases that have piled up over the three months since the Supreme Court issued its last opinions at the end of June. The Supreme Court will probably issue an order next week with the "grants" from this conference to allow these cases to be on the January and February dockets.
The first argument of this year's term is three consolidated cases from California regarding state reimbursement rates for Medicaid and whether California complied with the federal statute in setting those rates. Also in October, there are cases on the validity of the federal sex offender registration statute, when state habeas petitioners should be able to pursue claims that they failed to raise in state post-conviction proceedings (and the degree to which they have a right to counsel in such proceedings), when a religion can use religion as a valid basis for not hiring somebody, whether off-shore oil workers are entiltled to compensation for injuries received on-land in the course of their employment.
In November, the Supreme Court will hear cases on the right to counsel in the context of failed plea negotiations (e.g. if the attorney screws up the negotiations can a defendant go back to the last best offer after taking a different offer or being convicted at trial), on whether, for suggestive identifications, the suggestiveness has to come from police misconduct or can come from unofficial sources, whether a warrant is required before law enforcement can install a tracking device on a car, whether federal laws on animal slaughter preempt more stringent state laws, and whether federal railroad regulations preempt state torts.
In December, the Court will hear two cases on patents (one involving pharmaceutical patents and one involving bio-medical patents), the interaction of bankruptcy law and tax law, and several cases on the jurisdiction of courts to hear a variety of complaints.
At the present time, there are three cases that will likely be on the January docket (leaving room for seven more). One involves mandatory union dues in closed shops and the notice which has to be given on those who may wish to exercise their right to not pay the part used for political purposes. One involves the FCC and regulation of fleeting obscenity. The final case involves whether the Family and Medical Leave Act permits damages suits against state governments, notwithstanding the Eleventh Amendment.
While unlikely to be addressed at this conference, there are three major cases that will likely come before the Supreme Court this term -- the Affordable Care Act, the Arizona immigration laws, and Proposition 8/Defense of Marriage Act. Right now, it is a very close call as to whether any of these cases will be granted in time to be heard on the merits this year. It is likely that cert will be granted on some of these cases, but that the argument will probably not be heard until next year.
Overall, it looks like four topics will predominate this fall. First, about one-third of the cases either directly or indirectly (habeas and 1983 cases) involve criminal justice issues. Second, the degree to which federal statutes preempt state laws and state common law actions. Third, the degree to which -- for a variety of reasons --certain actions may not be brought in federal court. Finally, patent law continues to be an area that interests the Robert Court.
This past Thursday, the United States issued an opinion in U.S. Chamber of Commerce vs. Whiting. This case involved a challenge by the Chamber of Commerce (and others) to the first of Arizona's statutes attempting to assert a state role in the on-going immigration debates. In relevant part, the Arizona statutes require Arizona employers to use the federal e-verify system for all new hires and threatens to remove any state licenses from a business that hires aliens that do not have the right to work in the United States. The Chamber of Commerce (and others) challenged this statute on the ground that federal immigration laws preempted states from passing such laws. The U.S. government filed a brief in support of the Chamber position on the licenising provision, but opposing the Chamber position on the use of e-verify.
The case was decided by a vote of 4-1-3 with Justice Kagan recusing. The four Justices in the plurality (Chief Justice Roberts writing the opinion, joined by Justices Alito, Kennedy, and Scalia) issued an opinion finding that neither requirement was either expressly or implicitly preempted. Justice Thomas joined the opinion on several parts, but only concurred in the judgment on other parts. However, Justice Thomas did not write an opinion, so we don't know why he didn't join the plurality on all of the issues.
By way of background, federal law can preempt either by express language or by implication. A law expressly preempts state law if it uses terminology such as "no state shall pass a law imposing additional requirements." Implied preemption occurs when the state law is inconsistent with the federal law or the federal law is so comprehensive that it leaves no room for additional law.
As to the licensing scheme, the Supreme Court focused on language in the immigration law which precludes the imposition of criminal or civil sanctions "other than through licensing and similar laws." The majority found that the Arizona definition of a "license" mirrored how "license" is used in several federal statutes. The minority thought that the Arizona definition of a license was broader than the meaning of the licensing in that exception and thus was expressly preempted. On the question of implied preemption, the plurality felt that the express exception to preemption and the similiarity between the federal laws and the Arizona laws precluded a finding of implied preemption. They also disagreed with the Chamber assertion that the Arizona penalties were so severe that they upset the balance drawn by Congress on this issue. Because Justice Thomas concurred in the judgment on implied preemption, he clearly felt that there was no implied preemption, but we do not know why he felt there was no implied preemption.