United States v. Arizona
Working my way through Judge Susan Bolton’s 36 page opinion in United States v. Arizona proves once again that dense technical law is often the source of great political struggles. Her opinion spends lots of time on the question of whether there is sufficient irreparable harm to allow for the United States government to get an injunction before the statute goes into effect. She also gave effect to the severability provision of the Arizona statute that let many of its provisions survive, even as others were struck down. I have no question that under the federal law of preemption, if the Arizona statute does frustrate the enforcement of the federal standards it must give way. What preemption says in effect is that under our constitutional order, the lowliest federal statute or regulation takes precedence over any state law, including all constitutional provisions and all legislation.
The World War II case of Hines v. Davidowitz is a powerful weapon for the federal government in this case with respect to the key provisions of the statute that deal with stops, detentions and arrests on the one hand, and with the presentation of papers on the other. If there is any action by the state that increases the burdens on the federal government, there is a credible case for preemption. I do not agree with Judge Bolton’s interpretation of the statute on some key points, and think that it was unwise of the federal government in this case to seek an injunction against the enforcement of the statute before it was put in effect. But as a matter of black-letter law, the U.S. is likely to win on appeal—and face the political consequences of taking a strong stand on a highly popular and highly divisive law.
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Jun '10
Re: United States v. Arizona
There's a saying, that a conservative is a liberal who got mugged. Well, I was that liberal who got mugged (knocked down, and pocket picked in a quick 1-2 motion) many years ago. The conservative part happened quite a bit later--a delayed reflex. I mention it because, when I (the State of Arizona in my little analogy) called the police (the Feds in my analogy) they came to fill out a form, but they weren't the least bit interested in finding the mugger. That was clear. To be fair, I was on the ground and didn't see much, but I sort of know how Arizona feels, dealing with the Feds. I was out about $25, some replaceable plastic cards, and I had a slight scrape on my arm. In the big scheme of things, nothing, and what bothered me most was that nobody in charge could even pretend to care. At least the police didn't sue me for wasting their time, so that's a plus....
May '10
Re: United States v. Arizona
Do you have a thought about how this will play out on its path to the Supreme Court and then within the Supreme Court? I'm assuming this will get that far.
May '10
Re: United States v. Arizona
Professor Epstein, you say you believe the U.S. is likely to win on appeal. I agree with your assessment on the preemption argument. However, the vitriol spewed on the subject has always been better cast as an argument on Equal Protection grounds. Evidenced by the DOJ dropping the argument from its brief, it appears that argument is fairly weak. Do you agree?
President Obama, a former law professor at your distinguished law school, has been criticizing the law based on the supposedly racist undertones. Does the fact that the DOJ had to resort to a preemption argument undercut the Obama Administration's criticisms of the law? Can the opponents of the Arizona immigration statute and the Obama Administration really claim any moral victory when the law is struck down on preemption grounds?
Feb '10
Re: United States v. Arizona
a test
Jul '10
Re: United States v. Arizona
This is the problem with the law. Depending on your policy preferences, you can say the U.S. is likely to win on black letter law. I can find a dozen anti-illegal alien lawyers who say the state of Arizona will prevail.
States already routinely run searches for a variety of statuses, including outstanding warrants, child support orders, and non-immigration identity checks. Each of these checks potentially could delay release of an innocent person or burden some federal agency.
States already have redundant statutes with the Federal government regarding illegal substance possession, distribution, and sale, sexual deviancy, and and kidnapping. Do those put undue pressures on the government?
The difficulty of course is the pressure between the 4th and 10th Amendment. I'm still looking for difference between the Arizona law and U.S. statute.
I'm sure it's right next to penumbra.
May '10
Re: United States v. Arizona
Professor Epstein: I might sign on but for the case's procedural posture. When I seek preliminary injunctions, I have to show irreparable harm through evidence of real, tangible harm. Granted, the U.S. is in a different posture when it defends its Constitutional prerogatives or individual liberties, but preliminary injunctive relief suspending the operation of a state statute still requires a showing of irreparable harm. I just don't see how a preliminary injunction is justified based on claims that the Department of Homeland Security may have difficulty responding to immigration status inquiries from Arizona (which Congress has directed them to respond to by federal statute) or that people under lawful arrest will receive police scrutiny - and the foregoing doesn't even account for the fact that all this is speculative because the statute never became effective in the first place!
With that, I saw no justification for an extraordinary remedy like a preliminary injunction. Maybe the Court's order would be defensible as a final judgment based on a fully developed record, but a preliminary injunction is a real stretch and invites suspicion that the court was more concerned about results than the application of law to fact.
Jul '10
Re: United States v. Arizona
Pat: Professor Epstein, you say you believe the U.S. is likely to win on appeal. I agree with your assessment on the preemption argument. However, the vitriol spewed on the subject has always been better cast as an argument on Equal Protection grounds. Evidenced by the DOJ dropping the argument from its brief, it appears that argument is fairly weak. Do you agree?
President Obama, a former law professor at your distinguished law school, has been criticizing the law based on the supposedly racist undertones. Does the fact that the DOJ had to resort to a preemption argument undercut the Obama Administration's criticisms of the law? Can the opponents of the Arizona immigration statute and the Obama Administration really claim any moral victory when the law is struck down on preemption grounds? · Jul 28 at 10:49pm
I would say that, logically speaking, the two are possibly unrelated. Just because one argument falters doesn't mean that there aren't equal or stronger arguments available that ultimately achieve the same purpose.
The only way it would blow up on the big O is if people suddenly understood the distinction between an "Equal Protection" argument and a "Preemption" argument.
Jun '10
Re: United States v. Arizona
Okay, if we accept that the government wins on the letter of the law, what's the public perception likely to be? What do you call a government that refuses to meet its most basic obligation to defend the nation while (passively) aiding what can be construed as a foreign invasion? The current administration is so at odds with the will of the American people at this point that the estrangement might provoke something more than a backlash at the ballot box. All it takes is a single match to ignite a great conflagration. I think Codevilla has it right; we are engaged in a war between the ruling oligarchy and the rest of us. Let us pray that our (small "r") republican virtues carry the day.
May '10
Re: United States v. Arizona
Professor Epstein, I have a couple of questions.
Because this was facial challenge to the statute, isn't the standard whether the Arizona law can never be applied in a manner that is not preempted by federal law. For each hypothetical Judge Bolton says will preempt federal law isn't there at least one situation in which it doesn't? If so, doesn't that mean the Arizona law survives the facial challenge.
The other thing I note is that Judge Bolton compares the letter of the Arizona law not to the letter of the federal law but to the enforcement preferences of the current administration. If that is the correct approach, hasn't the court basically said that Congress is irrelevant to this discussion. In effect, the letter of the federal law is not the issue but the policy decisions made to enforce it is.
My solution on appeal is to put the federal law and the Arizona law, without section headings or other identifying characteristics (punctuation, etc) on two blank sheets of paper and if a majority of the judges can correctly identify which one is which, then we can discuss whether the federal law is preempted.
Re: United States v. Arizona
On this issue, Charlie "No Reaction" Crist takes leadership to a new level.
Re: United States v. Arizona
Pat: Professor Epstein, you say you believe the U.S. is likely to win on appeal. I agree with your assessment on the preemption argument. However, the vitriol spewed on the subject has always been better cast as an argument on Equal Protection grounds. Evidenced by the DOJ dropping the argument from its brief, it appears that argument is fairly weak. Do you agree?
President Obama, a former law professor at your distinguished law school, has been criticizing the law based on the supposedly racist undertones. Does the fact that the DOJ had to resort to a preemption argument undercut the Obama Administration's criticisms of the law? Can the opponents of the Arizona immigration statute and the Obama Administration really claim any moral victory when the law is struck down on preemption grounds?
There is no moral victory on preemption, it is just a level of authority issue. And the equal protection argument against this statute could be brought by anyone. But on areas of immigration, as it relates to health and safety, it is hard to win that kind of a challenge even after the law is in effect. Impossible I think on a facial basis.
Re: United States v. Arizona
Matthew Gilley: I just don't see how a preliminary injunction is justified based on claims that the Department of Homeland Security may have difficulty responding to immigration status inquiries [...] or that people under lawful arrest will receive police scrutiny - and [...] all this is speculative because the statute never became effective in the first place!
Great question and much depends on what it is that you think that the US has to show at trial to win. If it is actual interference with operations, then as I said in the original post, you are surely correct. This is premature. But if, as seems to be the law, the only thing that the federal government has to show is that it is opposed, the case comes out otherwise. It is here that the peculiar fact that the US is bringing the action matters. When it is a private plaintiff, the position of the government is often unknown and sometimes is not known until it voices them. But when the US is the plaintiff its position is revealed when the suit is filed. Nonetheless, I still think that the case is as a political matter too premature.
Re: United States v. Arizona
Another terrific question. But the federal government in this case has all the cards, right or wrong. The real question is whether it chooses to waive its exclusive control over aliens witnin the United States. That decision under federal law is delegated to the executive branch as part of its enforcement powers. So if it chooses not to waive, that ends the story. This is not a case where the scope of the statutory authority is in question, at which point you have to compare the two statutes. The federal power is just too plenary and that is consistent with the original constitutional scheme on the control over immigration. In the end, a political battle of epic proportions.
May '10
Re: United States v. Arizona
Richard Epstein
. . . That decision under federal law is delegated to the executive branch as part of its enforcement powers. So if it chooses not to waive, that ends the story.
Another question. Can the inaction of the federal government be taken as a waiver or abandonment of the right to exclusively enforce immigration? If not an outright waiver, isn't it sufficient evidence to show that the federal government hasn't preempted the entire field? If Congress had intended for the US policy to be that the current administration's enforcement policies preempt any and all state input on the issue, it could clearly do so through the statute. I'd even allow that DNS could do it through regulation. The courts have not traditionally treated immigration as an area of law, like the Commerce Clause, where there is no room for state input on the issue.
It seems to me that the federal immigration scheme encourages state participation in enforcement rather than preempts it. Far from imposing a burden the Arizona law appears to relieve one. Don't the feds need to show more than "we wouldn't do it that way" to prevail on a facial preemption claim.
Jul '10
Re: United States v. Arizona
Perhaps I'll be clearer:
Under federal law ((8 U.S.C. § 1304), all aliens are required to “at all times carry with him and have in his personal possession any certificate of alien registration” issued by the federal government. Also in the Federal code is this: federal officials are mandated to “respond to an inquiry by a…State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual.” (8 U.S.C. §1373).
How does this not square with
Section 2(B) of S.B. 1070, which states:
For any lawful stop, detention or arrest made by [an Arizona] law enforcement official…in the enforcement of any other law or ordinance…where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable effort shall be made…to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released.
It only makes sense if the attorney arguing against that is driven by a personal policy preference.
Jul '10
Re: United States v. Arizona
My problem with this ruling is more fundamental. I am the first to admit that I don’t understand the fine legal points of the ruling. My problem is how arbitrary the ruling seems. It seems to me that no matter what Arizona did and no matter how carefully they crafted the law it would have been struck down.
I have to admit this ruling shakes my confidence in the rule of law. There is this strange reverence for the law coupled by contempt for legislatures that I don’t understand. As a citizen how do I petition my government for redress of grievances? I don’t have confidence that my position will prevail even if I follow the rules.
Jul '10
Re: United States v. Arizona
Mr. Epstein, Andy McCarthy has an interesting post that cites Plyer V. Doe (1982), and also notes Ms. Bolton's misapplication of Hines v Davidowitz) specifically:
"Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution tothe Federal Government, unchecked unlawful migration might impair the State's economy generally, or the State's ability to provide some important service. Despite the exclusive federal control of this Nation's borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.[emphasis added]
What do you think of his assessment?
BTW I really enjoy your participation in the podcast.