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Monday, May 31, 2010

LawPrawfs on the Arizona Immigration Law

Carissa Hessick at Arizona State, and Toni Massaro, Marc Miller and I at the University of Arizona have written a summary and analysis of SB 1070, the new Arizona immigration law, available here.  We welcome comments, suggestions and critiques of our views, particularly because the complexity of the statute necessarily makes our work preliminary.  I may have a few additional posts on this issue in the coming weeks.

Posted by Marc Miller on May 31, 2010 at 07:19 PM | Permalink


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BZ says:
Thank you for this paper. Here are some comments:

1) This desperately needs proofing and tightening. E.g., P. 2: “SB 1070 includes many provisions whose interpretation is open to a range of interpretations.”

2) Arizona has a long and storied tradition of activist law professors who participate in public policy debates, leveraging their occupation into a claim of superiority. This appears on the first page of text (P. 2): “With all respect to the views of others, in our view those who state that the meaning of the bill is obvious, or that it simply mirrors federal law, either have not read the bill, or do not understand the difficult issues of federalism and criminal law and procedure raised by this text and existing law.” And continues in that breezy style throughout: (P. 26) “Who could object to getting help with carrying out a mirror-image of their own policy? But a moment’s thought using concrete examples shows that the argument is flawed: . . .” Sorry, but one assumes that Prof. Kobach has “read the bill and does understand the difficult issues of federalism and criminal law and procedure.” As have others who believe the purpose of the bill is obvious and believe that it mirrors federal law, including those who have written both federal and Arizona laws, analyzed, attacked and defended them in court, and otherwise performed duties which the authors might suggest qualify them to opine intelligently. These phrases, and the condescension dripping from the article generally, can easily be removed without losing anything. Either your arguments are sound or they’re not; insults, no matter how fine the blade, add nothing.

3) The article throughout conflates race and national origin, which are two distinct concepts in both law and reality. This distinction is central to understanding the actual implementation of immigration law in the context of discrimination and civil rights law. It is also essential to understanding alienage and citizenship. That understanding appears nowhere in this article, and it undercuts the analysis. Since so much else of your analysis is predicated on fine distinctions, you should review and revise your analysis in light of the difference. It will make the article longer, but also more precise.

4) The repeated assertions that differences between Arizona drafting and federal law are significant departures from permissible legislating appears to indicate only that the authors have no experience in drafting state or local legislation. Of course the language will differ in some respects, given the nature of federalism, so the analysis should only make this point if there is some substantial, not minor, differences. That is, it matters little, from a constitutional analysis, whether the state penalty is less than the federal penalty, if the underlying state offense is harmonious with the federal limitations imposed by preemption. That is one DeCanas v Bica teaching, which remains good law. So parsing just to find those negligible and meaningless distinctions obscures an effort to see what is really significantly different. Remove the meaningless stuff, unless you are being paid by the word. Leave us the significant differences, so we can argue about them instead of the cloud raised by every possible distinction.

5) The whole attack on citizen suits (see, e.g., P. 23) appears uninformed. You have essentially no legal analysis on P. 23, where, as you put it in another passage, a moment’s analysis would find similar provisions, and the reason for them. This is a “citizen’s standing” provision, common in various states, and it blossomed throughout initiative drafting after the legal challenges to standing in an earlier Arizona case involving English as the Official Language. These are inserted to provide for citizen enforcement when government officials refuse to do so, as when Governor Rose Mofford refused to appeal the Arizona Official English initiative. I didn’t write this Arizona law, but I have written others in Arizona and other states, and we routinely include citizen standing clauses. In Arizona, these can be used to provide standing for initiative proponents or legislative sponsors to defend laws when the Attorney General does not do so; otherwise legislative standing doctrine requires more. See, e.g., Judge Reinhardt’s first opinion in the Arizonans for Official English v. Arizona line of cases. If you are going to criticize citizen standing provisions, please review the literature and determine when, if any, a case was brought under a citizen standing provision. I don’t believe you’ll find many, so terrorem horribilis arguments ring hollow in an analysis where research could illuminate.

6) And while we are on P. 23, the statement “States are not
creatures of county and local government, or of the citizens of the state, in the way that the federal constitutional and the federal government is a product of agreement among the states” is astonishing. Either this is understatement or overstatement; either way it eviscerates some readers’ willingness to credit this section. Even assuming that your comment was limited only to the specific question analyzed in this section (and it’s probably not complete even for that), perhaps a review of state preambles, and the relevant literature, might provide the grist for at least a footnote here supporting the view that States’, as much as the federal, Constitutions come from the People, and not the other way around. Which means that your analysis of citizen standing rules, and, in this case, legislative drafting, is at least incomplete.

7) Your analysis of “immigration” (see, e.g., P. 26) is similarly conflated from laws regulating the admission of persons and the removal of and penalties applicable to unlawful presence. On P. 35, for example, you talk about “pure” immigration laws, but you never define what that means, or immigration laws which are not “pure.” Since you do not define “immigration” for your analysis, you don’t seem to distinguish between those cases you cite regarding whether a State can affect those admitted to the country as a whole, from those whose presence the federal government has statutorily declared repugnant. The State cannot make those distinctions — that is the essence of the federal immigration power. The question inherent in this law, however, is different: once the federal government has exercised its power to decide, and has decided against a certain class of person being within its borders, can Arizona (or any State) take steps in harmony with federal law to do what federal law requires: the removal or penalizing of continued illegal presence? Absent the understanding of that distinction, your analysis flops about on other questions, not particularly relevant to the Arizona law. Thus, your attack on Prof. Kobach’s position doesn’t actually either reflect his argument (which proceeds from a more refined and defined understanding of immigration) or answer it. It just throws up examples of other things that are also not finely or clearly distinguished or analogized to immigration. Nor does it even mention DeCanas v. Bica, which is odd, given that DeCanas answers your specific point. The omission is noticeable. But what is most telling is that you discuss this very distinction in the next section while construing Hines v. Davidowitz; why consider it there and not in the more general discussion of “immigration” where it would be useful?

8) So then we hit the heart of the real controversy: preemption. And . . . we get a mention of Hines and DeCanas, and the statement “However, a number of courts,107 including the Ninth Circuit,108 have held that IRCA does not entirely preempt state legislation regarding undocumented non-citizens.” And . . . nothing more? All that preliminary effort and we splash out into a sea of policy arguments? Even worse, the major analysis is on Plyler v Doe (the Texas school tuition case), which is important to the preemption question, but only part of the development. Plyler, however, was not a definitive analysis, since the Court was very clear that the reason it was striking the statute requiring illegal immigrants to be charged out of state tuition was because Congress was about to (and in fact did) enact an amnesty making the question moot, and we needed those kids to not miss a lot of school while Congress dithered. Not a word of that in your analysis, just reliance on dicta, and footnote dicta at that.

9) Finally, on your conclusion, I generally agree with your comments on the effect on national discussion and hope you are right that your analysis will spark more discussion. But though these are “preliminary thoughts,” they need some more work. I think you have identified some good issues and parsed finely, but you have also identified many red herrings and missed some important distinctions.

Posted by: BZ | Jun 1, 2010 10:17:36 AM

Thanks so much for the passage (pp. 16-18) showing that the language "prohibiting" racial profiling is completely toothless given federal and state precedent. Extremely illuminating, clear, and helpful.

I worry, however, that at several points you misstate (or at least misinterpret) how federal enforcement policy is actually working right now, especially civil deportation. I'm thinking in particular of the use of statements from Bush and Obama on page 29 to show that "Chief Executives...have rejected even the use of civil deportation"; the statement that "it might be regarded as harming the international reputation of the United States if it incarcerated hundreds of thousands or millions of undocumented non-citizens" on page 30; and the statement that "the national government has signaled that the ordinary, otherwise law-abiding undocumented person who is already here is not a priority even for civil deportation" on page 31.

In all of these cases, the statements you quote do, indeed, imply that civil deportation isn't a priority. Unfortunately, the numbers don't bear this out. ICE deported 387,790 undocumented immigrants in fiscal year 2009, 272,202 of whom were noncriminal. A chart of deportations by fiscal year is available here: http://americasvoiceonline.org/page/-/americasvoice/reports/Deportations%20by%20Fiscal%20Year.pdf

(There's also a lot of evidence showing that a disproportionate number of "criminal aliens" are people arrested for minor violations, and that a majority of "criminal aliens" are never convicted of a crime. And the definition of "criminal alien" includes anyone pulled over during a traffic stop and charged with driving without a license.)

I'm only worried about this because part of the preemption case seems to rest on the assumption that the federal government has explicitly rejected "attrition through enforcement" as a policy goal. I agree that no one in the federal government thinks that attrition through enforcement is realistic, and most of the top-level officials would prefer to give undocumented immigrants a path to citizenship. But it might be more accurate to a) avoid quoting rhetoric from federal officials that doesn't match their policy or b) make a note of the discrepancy.

Please email me if you have any questions or want further resources. Thanks!

Posted by: Dara | Jun 1, 2010 9:55:27 AM

This is a useful paper.

A few initial comments. (I may have more after I've had time to digest the preemption portions.)

One, I think you may want to do more to distinguish the citizen suit provisions of this law from those found in other laws, particularly those that are designed to force greater enforcement of regulatory requirements. The language is certainly different, but I think you want to look more about how this will make the provision operate differently in practice.

Two, the federal government was not created by an agreement among states (p23), but by ratification by the people of the several states. This is a subtle but important point.

Anyhow, good show! This paper will hopefully help the light-to-heat ratio in discussions about the AZ law.


Posted by: Jonathan H. Adler | May 31, 2010 10:42:13 PM

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