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The Law Offices of Angela L. Williams, LLC » SCOTUS’ Arizona Smack Down: or Why Kobach is Wrong

SCOTUS’ Arizona Smack Down: or Why Kobach is Wrong

August 3, 2012 at 4:05 pm
filed under Anchor Baby is a Hate Word, attrition through enforcement, Birth Right Citizenship, Change in Regs, Comprehensive Immigration Reform, Constitution, Deportation, DREAM Act, Immigration, Immigration Discrimination, Immigration Myths, Kris Kobach (KS Secretary of State), Office News, Perspective, Procedure, Prosecutorial Discretion, Secured Communities, Self-Deportation, State Based Immigration Laws, State's Rights, Supremacy Clause
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Immigration is in the News again as the Supreme Court of the United States handed down its decision last week on Arizona’s controversial state-based immigration law, SB 1070.  Since Arizona’s law was passed in 2010, many other states have passed similar, and in some cases even harsher state-based laws.  Many others have tried and failed.  All of the laws that have passed have been almost immediately enjoined by Federal District Courts from taking effect starting the laborious process of litigating whether these laws are pre-empted by Federal Powers and are, thus unconstitutional.  The Decision in Arizona vs. US, 567 US_____(2012) will give some much needed guidance to those state lawmakers considering this type of legislation.


These laws are the brainchild of local boy and supposed Kansas Secretary of State, Kris Kobach, who has developed his own ideas of how to deal with our immigration problems.  Rather than actually fixing the problem or pushing Congress to do its job, he has developed a theory that many have blindly embraced, the policy of “enforcement through attrition.”  The Kobachian policy of “enforcement through attrition,” or as I like to call it the “treat-them-like-crap-and-maybe-they-will-just-go-away” theory of immigration reform involves states making laws that make life increasingly unequal, unfair, and unpleasant for immigrants, mostly for illegal immigrants, but if legal ones are effected, well that is just collateral damage.  Everyone’s talking about it as if it is the best solution ever to solving out immigration problem.  Kris Kobach loves to make speeches all over the place describing the concrete and easy-to-spot characteristics of those who are reasonably suspicious of being undocumented, immutable, non-racially charged characteristics like being unable to speak English, lacking ID, riding in an old car or a car that is “riding heavy,” cars with lots of passengers or are traveling on known trafficking corridors (the highway) and my personal favorite, people who are “dusty” as if just finishing a long trip through the desert.  He is getting paid millions to write laws for states each more inhumane and mean than the last.


Every state that has passed one of these laws has gotten sued and spent millions (going in many cases right into Mr. Kobach’s designer pockets) to defend the laws.  Similarly, many municipalities have bought Mr. Kobach’s Constitutionally dubious immigration-fix-all snake oil with similar results. (Farmers Branch, TX, Hazelton, PA,; Fremont, NE)   Millions spent defending these bills, with few, if any positive Constitutional seal of approvals from the courts.  They have all lost millions in taxes, revenue and production as immigrants of all kinds fled the increasingly unfriendly states for less hostile pastures.  Many other states have tried passing the same measures and have failed, including both Missouri and Kansas.


On Monday the Supremes, or SCOTUS, issued its opinion.  While both sides immediately claimed victory, here is what they actually said.  The Arizona law, SB1070, was enacted in 2010 and immediately enjoined from being enforced.  The Justice department filed a lawsuit enjoining the enforcement of the law on the basis that it was preempted by Federal Law, specifically by the Constitution in Article I section 8.4 that states that Congress shall have the power to establish a uniform rule of naturalization.  The lawsuit specifically challenged four provisions of the law:  Section 3 (Ariz. Rev. Stat. Ann 13—1509, which makes failure to comply with federal alien registration requirements a state misdemeanor; Section 5 (C)(13-2928 (c)) that makes it a state misdemeanor for an alien unauthorized to work to seek or engage in work within Arizona; Section 6 (13-3883(A)(5)) that gives specific authority to or officers to arrest without a warrant a person “the officer has probable cause to believe…has committed any public offense that makes the person removable from the United States; and Section 2(B) (11-1051(B)) that mandates that officers who conduct a stop, detention or arrest must make efforts to verify a person’s immigration status if they have reasonable suspicion to believe that they are undocumented.


The Court held that section 3 (state crime for failure to register or carry immigration documents) was unconstitutional because federal law preempts it. The Court reasoned that the Federal Government has “occupied the field of alien registration” (Decision page 9).  Such “field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.” (Page 10)  The Court further shot down Arizona’s argument that it can survive preemption because the provision has the same aim as federal law.  The Court said that this argument  “ignores the basic premise of field preemption” and was “unpersuasive on its own terms.”  They reasoned that allowing states to make their own laws on alien registration and enforce them even where Federal officials have decided that enforcement in a particular situation frustrated federal policies.  Further the Court pointed out that the statute was not a mere mirror of federal law and substantive standards as Arizona claimed, and, in fact, treated potential violators in a manner different and harsher than someone prosecuted in federal court.  While the federal sentencing structure allows for probation, fines or imprisonment, the state structure rules out entirely the possibility of probation as well as the possibility of a later pardon.  Because of the comprehensive and exhaustive statutory scheme that occupies the entirety of the field, the Court concludes that congress intended to preclude the states from any part of these regulations.


The Court also held that section 5 (crime for unauthorized aliens to work or even seek employment in the state) was unconstitutional because of preemption.  The Court recognized that  “(w)hen there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own law.” (Page 12).  They cited a care from 1971 where a California law imposed civil penalties for employing unauthorized aliens was upheld against preemption because at that time there existed no comprehensive framework dealing with the issue. (DeCanas v. Bica, 424 US 351 (1976) However, in 1986 Congress enacted the Immigration Reform and Control Act (IRCA) which is a comprehensive framework “combating the employment of illegal aliens.” (Page 13).  This law proscribes a number of controls and both civil and criminal penalties on the employer for knowingly hiring, employing or recruiting unauthorized workers.  The Court further noted that IRCA specifically does not impose criminal penalties on the employee and further makes clear that
“any information employees submit to indicate their work status ‘may not be used’ for purposes other than prosecution under specific federal criminal statutes for fraud, perjury and related conduct (See 8 USC §§ 1324a(b)(5), (d)(2)(F)-(G).” (Page 13).  The Court further noted that whether to impose criminal sanctions on the employee was debated and discarded during the writing of IRCA.  They stated that “the ordinary principle of preemption include the well-settled proposition that a state law is preempted where it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Pages 14 & 15) Because Congress had the opportunity to include criminal sanctions on the employee and did not, the Court reasoned that it follows that any state law providing for the contrary is an obstacle to that federal regulation.


Section 6 (warrantless arrest of persons suspected to have committed an offense making them removable) was also found to be unconstitutional.  The Court starts with the recognition that, as a general rule it is not a crime for a removable alien to remain in the United States (INS v. Lopez-Mendoza, 468 US 1032, 1038(1984)).  (Page 15-16).  The Court also discusses the exhaustive and complicated process of initiating removal proceedings, how that notice may be served, when a federal warrant may be issued for the arrest of possibly removable aliens, which aliens are allowed to remain free on bond and those mandated to remain in custody.  The Court decided that if this state law were allowed to stand, a state officer could arrest anyone they wanted without input from the federal government, their issuance of a warrant the federal determination that the alien is likely to escape or whether the government felt that arrest was warranted and without regard to the discretion the federal government has to set it’s own enforcement policies and agenda.  The Court explicitly cites as an example of the government’s authority to use such discretion, the Morton Memo of June 2011 directing ICE and Federal Trial Attorneys to exercise prosecutorial discretion in cases with certain factors.  The Court reasoned that this kind of statute would allow states to set their own immigration policies and priorities that directly conflict with the Federal Government’s rights and authority to act in this arena.  The Court scoffed at Arizona’s argument that this section is authorized by a “federal statute permitting state officers to cooperate” in immigration enforcement.  The Court states “(t)here may be some ambiguity as to what constitutes cooperation under federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval or other instruction  from the Federal Government.”(Page 18)


The final section, 2(b)(the ‘reasonable suspicion of being illegal” provision, and probably the most controversial provision) was challenged on 2 grounds, its mandatory nature and its possibility for prolonged detention while immigration status is being verified with ICE.  The Court, using the principle that if a State statute can possibly be construed in a way to avoid unconstitutional questions it should be construed that way until it is shown to actually conflict with federal law, found that the mandate to investigate immigration status  after a lawful stop, and to always verify the immigration status of someone before they are released from custody is not per se unconstitutional.  Because the first clause of section 2(B) states that officers must make reasonable attempts to verify the immigration status during a lawful stop, and using the general rule that “a seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission” (see page 22 citing Illinois v. Caballes, 543 US 405, 407 (2005)) and detaining someone solely to verify their immigration status would raise constitutional concerns, (see page 22 citing Arizona v. Johnson, 555 US 323,333 (2009), it is possible that a court could decide that  unless a person continues to be suspected of a crime for which he can be detained, officers cannot prolong a stop for the immigration inquiry.  The Court also said that according to Arizona’s brief, the verification would not even have to be completed during the actual stop.  Further, because it is possible that a state court would decide that the second sentence of this section that, all person who have been arrested shall have their immigration status verified, no matter the circumstances, it is still not clear that this requirement would require a prolonged detention that would run afoul of the 4th amendment.  Because of these ambiguities the Court could find nothing on the face of the statute that is contrary to federal law.


However, and this is a big however, that the Kobachian champions are failing to mention, the Court specifically decided this clause this way because “there is a basic uncertainty about what the law means and how it will be enforced” (page 24) because the challenge was brought before it ever took effect.  Without a provision in federal law that occupies the field, automatically preempting the state law or a provision clearly contradicting the proposed state law, the Court found nothing in the section that made it automatically preempted by Federal law, even the argument that it would allow states to detain people who were not enforcement priorities.  The Court, though clearly decided this with a caveat, “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”  In other words, enact this with care.  They did not give this provision a SCOTUS Constitutional seal of approval and specifically left this provision open to further litigation both from individuals and how it was applied to that person as well as a general preemption challenge but the Federal Government after the law is implemented, if it is enforced in such a way that makes it preempted by some section of federal immigration or civil rights law.   Further they specifically did not decide if further detention beyond what was necessary to conduct the initial stop would be permissible if the officer came to suspect the person was undocumented during the course of the initial stop.


Honestly, this provision is detestable because of people such as Maricopa County Sheriff Joe Arpio and how they will undoubtedly apply it as well as what it represents: explicit and institutional justification of authorization of a hateful and wrongly reasoned policy of “attrition through enforcement,” in fact, the Arizona’s law says in its provisions are intended to establish this as a state policy.  (See opinion page 1).  I believe that the Majority recognized this and while they could not find this section unconstitutional on its face because of the supposed safe guards written into the statute, their specific statement that they were not deciding the issue of whether suspected unlawful presence would justify further detention and that the timing of the challenge gave them no way to assess how it would be implemented and that their decision this week specifically did not preclude both individual and governmental challenges indicate a deep concern for how this provision will be applied in practice.


This is decision has several very important lessons.  First, Mr. Kobach is not the infallible constitutional genius he has been claiming when he appears in the state legislatures promising these laws are constitutional and will be upheld.  The fact that most of his assertions on the constitutionality of his state and local laws have been blocked and been found unconstitutional by federal district and appellate courts all over the country seem not to have matter to his followers up to now, but maybe this SCOTUS bitch slap will wake up state legislatures all over the country to stop buying what he is selling.  It is long on promises and short on delivery and leaves those state and local coffers significantly emptier and his pockets significantly fatter than when he started.


The second important lesson is that even though the SCOTUS did not strike the “reasonable suspicion” provision on its face, it did not give the green light for wholesale copying and pasting of this provision either.   It expressed serious concerns as to how this law is going to shake out in practice and expressly invited further challenges to the application of this law both as to whether it is preempted in its application and to its constitutionality as it is applied to individuals.  In other words, the litigation is not over.  Any state legislators who use this provision verbatim are not doing so with a fresh stamp of unequivocal constitutional from the Bench. And those states that enact similar laws will not be protected from litigation, and the associated cost, by this opinion, a concern for more and more states that face deeper budget crises and growing debt.


States will still have to consider whether they should enact a “reasonable suspicion” statute like Arizona, even if it is not unconstitutional on its face.  Aside from the strain on local resources mandating a provision like this will cause, the potential lawsuits and millions of taxpayer dollars that will be spent litigating individual and governmental challenges, the provision is hateful and, simply just make the state look bad.  It kills me that so many people have drunk Kobach’s Poison Kool-aid on this issue.  The whole concept of “attrition by enforcement” is based on a serious fallacy.  Kobach is assuming that it is possible to create an environment through legislation that is bad enough to send the majority of the undocumented folks back to their countries.  He is assuming that these restrictions, these scare tactics, these roadblocks to getting your water turned on or registering your car or even registering your kids in school is going to be enough to send them packing up and sneaking back.  He assumes that a heightened risk that a cop will detain you when he finds you have no driver’s license or the difficulty one might have in renting an apartment is going to send them away.  He assumes that creating a legal second class status or a pervasive “you are less than” attitude toward all immigrants are going to make them huff in fury and say in righteous indignation “we will not be treated in such a way,” close their businesses, pack up their kids and leave a place they have lived for years.  He is assuming that because he is thinking like an upper-middle class, non-ethnic person.  And maybe he would be exactly right, if our undocumented population consisted of illegal Canadians, or French, or Swedes.  They would certainly not stand for laws making it legal to treat them badly and probably would pack up and return to there countries that are almost exactly like ours.



What he has failed to understand, however, is you do not pack up your entire family, leave your country, your home, your culture and history, and travel to our southern border where you pay all the money you and your entire family have to a coyote, who is equally as likely to kill you or rape your daughter or simply leave you in the desert as he is to actually deliver you to the other side, to smuggle you in to the United States in a shipping container, or in a hollowed out compartment in a truck or simply walking for days in the desert, and arrive in the US where you take dirty, difficult crap jobs and work 10 hours a day 6 ½ days a week and sleep on floors in rented rooms or in trailers or in cars and live in constant fear of being discovered because “home” is a great place.


To the vast majority of undocumented people “home” is in a dirt hut with no running water or doors or windows or school or doctor, or where your kids will grow up uneducated and your are barely able to feed yourself or your family; or a place where warring drug cartels forcibly recruit people to work for them and cut the heads off of people who refuse with machetes; or a city so over crowded and teeming with gangs that it is really MS13 that runs the city not the police or government; or a place where warring tribes like to go into villages and kill or maim the adults and kidnap and brain wash the kids into being soldiers by beating them and giving them drugs, and doing unspeakable things to them; or where oil companies hire mercenaries to kill and terrorize people who object to their pollution and corruption of the land; or where refusal to work in the diamond mines means your hand gets wacked off with a machete; or where your teenage daughter will be subject to female gentile mutilation; or you will be subjected to forced family planning; or you will be stoned in public for showing your ankle; or there are no jobs and no food and your living quarters are something out of Bleak House; or where being gay is punishable by death; or even a place you simply have no memory of and have not been to since you were a small child or where …I could go on and on.


The depth of cruelty and depravity that we humans are capable of inflicting on other human beings is staggering and astounding.  And no amount of legislated hatred is going to make conditions here bad enough for anyone to return to that.  There is a reason we do not have a problem with hordes of undocumented western Europeans.  It will make things uncomfortable and difficult for a while but people will adapt.  They will adapt because they cannot go back to the country of their birth and they will adapt because no matter how much Kobach may not like it, the United States is their home.  It will not send them home because whatever is legislated, unless Kobach starts proposing cutting off heads and hands or forcing children to be drugged out soldiers, it is still better than where they came from otherwise they would not have risked what they have to have done it.  They came here not to break laws, or to get a free ride or to steal jobs. They came here because their children were starving, or sick, or in danger or not getting an education.  They came here because America is the place where anyone can become something great with hard work.  Period.  It may sound hippy and liberal and bleeding heart, but it is the truth.  As someone who has spent her entire adult life working with “those people” I can tell you many of them embody the American dream and spirit far more than most Americans.


The Supreme Court’s decision in Arizona v. United States, hopefully, will begin to make it clear that state based cruelty and hate will only make the problem worse.  This is Congress’ job and the fact is that, like so many things, they have epically failed in this arena.   Hopefully this decision will show people that this issue is important enough that we need to start electing people who are politically brave enough to come to the table and compromise and try to fix this problem.  It is not the job of employers, or landlords, or local police or state legislatures, or governors, or Kris Kobach.  It is going to take listening and compromising and working together.   It is going to take ceasing to act like stubborn children who refuse to do anything unless they get all of their own way.  Maybe we ought to send a troop of kindergarten teachers into congress for a lesson on sharing and taking turns.  What I hope this decision does is push voters to elect people who are willing to fix the system and address some of the real problems and push Congress to see that they cannot pawn off their responsibilities anymore on the states and to show the states that, as frustrated as they are about this situation, rather than wasting time and money on hateful ideas from a dubious constitutional “expert” who is wrong the majority of the time, push their counterparts in Washington to act.  In any case, the Arizona decision was a game changer.  It, in dicta, approved of the concept of prosecutorial discretion and the broad executive power to make policy and enforcement decisions and priorities in an administration and it severely curtailed the future potency of state legislation.   While I wish the “reasonable suspicion” provision was found to be out right unconstitutional so there would be no need to discuss this further with the states, I cannot say I disagree with their reasoning and decision to a great degree, and I am placated by the fact that I am sure there will be more lawsuits to come, further providing a disincentive for states to enact these laws and, hopefully pushing congress to get off their collective backsides and do something.


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