Analysis of Arizona s Border Security Law. July 6, Summary

MEMORANDUM Analysis of Arizona s Border Security Law July 6, 2010 Summary Although critics of the Arizona law dealing with border security and illegal immigration have protested and filed federal lawsuits, it is likely that the law will be upheld. The most common critiques of the law are that the federal government should handle immigration issues and that the law could justify racial profiling. However, a facial challenge to the law will likely fail because Congress has not preempted Arizona s statute, and the statute expressly states that police officers may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution. I. Preemption. A. The Field of Immigration Has Not Been Preempted by Congress and thus the Arizona Statute Is Not Per-se Unconstitutional. Quoting the Supreme Court case De Canas v. Bica, an Arizona appellate court noted that the [Supreme] Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised. 1 The court then noted that De Canas outlined three ways in which state statutes related to immigration may be preempted: 1) if the state statute actually regulates immigration, 2) if it was the clear and manifest purpose of Congress to preclude even harmonious state regulation touching on aliens in general, and 3) if the state law stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress. 2 The Arizona court held that the human smuggling statute at issue in that case was constitutional because it did not violate the three part De Canas test, and actually mirror[ed] federal 1 Arizona v. Flores, 218 Ariz. 407, 412 (Ct. App. 2008) (quoting 424 U.S. 351, 355 (1976). 2 Id. (internal citations omitted). 1

objectives.... The same act may offend the laws of both the state and the federal government and may be prosecuted by each. 3 In Lozano v. City of Hazelton, however, the Middle District of Pennsylvania found that a federal law regarding the employment of unauthorized aliens had preempted state law in that area: 4 Congress has in fact enacted a comprehensive legislative scheme with regard to the employment of unauthorized aliens and occupies the field to the exclusion of state law. 5 In distinguishing this case from De Canas, the court recognized that the Immigration and Naturalization Act ( INA ) was not a comprehensive document because its central concern is with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country rather than employment of unauthorized aliens. 6 The court, however, also recognized that since the INA was enacted, Congress passed the Immigration Reform and Control Act of 1986 ( IRCA ), which was meant to be a comprehensive law dealing with the employment of unauthorized aliens to the exclusion of certain state laws. 7 Based on the IRCA, the court concluded that the Ordinance [at issue in Lozano] as it applies to employers is field pre-empted. Immigration is a national issue. The United States Congress has provided complete and thorough regulations with regard to the employment of unauthorized aliens including anti-immigration discrimination provisions. Allowing States or local governments to legislate with regard to the employment of unauthorized aliens would interfere with Congressional objectives. 8 While certain employment issues relating to immigration may be field preempted, other issues are not. The Arizona law does not deal primarily with employment (other than a section dealing with the obstruction of traffic in connection with migrant work), and thus it is not per-se unconstitutional. Rather than regulate immigration, the law merely punishes unlawful conduct a primary issue of state concern in our system of federalism. The Arizona law would, however, be preempted if it directly conflicted with any federal law regulating immigration. B. The Arizona Statute Does Not Conflict with Federal Immigration Statutes. Many opinions have been offered from both sides as to whether the Arizona law is preempted by existing federal law. Steven A. Camarota, director of research at the Center for Immigration Studies, believes the law is constitutional: The state s new immigration enforcement law is designed to mirror federal immigration laws. Federal law already requires aliens to register and carry their documents with them. The new Arizona law simply does the same thing. Because illegal immigrants are by definition in violation of federal immigration laws, they 3 Id. at 413 (citing Abbate v. United States, 359 U.S. 187, 194 95 (1959)); see also Arizona v. Barragan-Sierra, 219 Ariz. 276 (Ct. App. 2008). 4 Lozano v. City of Hazelton, 496 F. Supp. 2d 477, 525 (M.D. Pa. 2007). 5 Id. 6 Id. at 524 (citing De Canas, 424 U.S. at 359). 7 Id. at 525. 8 Id. at 524 25. 2

can now be arrested. The law is specifically designed to avoid the legal pitfall of pre-emption.... By simply making what is a federal violation also a state violation, the Arizona law avoids this problem. 9 On the other hand, Vivek Malhotra, an ACLU attorney, believes that federal law preempts the Arizona law: Arizona s passage of this law represents the most serious incursion by a state into the federal province of immigration regulation and enforcement since California s Proposition 187 in the 1990s. A federal court threw out much of that law because the state had overstepped its authority to engage in immigration matters. The Supremacy Clause of the United States Constitution similarly prevents Arizona from taking federal immigration enforcement into its own hands. 10 Arizona s law is not comparable, however, to California s Proposition 187. Another argument is that Arizona s attempt to help the federal government enforce its laws will actually be counterproductive, making the law in conflict with federal enforcement policy. 11 There is nothing in the Arizona law, however, that conflicts with federal law or enforcement policies. The above arguments are largely representative of the opinions of both sides on the issue of preemption. Those opining that the law is preempted by federal law have been unable to demonstrate that any specific federal law is in direct conflict with the Arizona law. As established above, Congress has not field preempted immigration. Thus, in order to find the bill unconstitutional under the Supremacy Clause, the burden is on those claiming that it is unconstitutional to come forward with concrete evidence. It is unlikely that such evidence can be provided. II. Constitutional Criminal Procedure Issues. A. Equal Protection. Some argue that the law violates the Equal Protection Clause because the only way to enforce the law s most controversial provisions is through racial profiling, despite the fact that the law contains an express provision precluding law enforcement from using race as a factor 9 The Editors, Will Arizona s Immigration Law Survive, N.Y. Times, April 26, 2010, http://roomfordebate.blogs.nytimes.com/2010/04/26/will-arizonas-immigration-law-survive/; see also George F. Will, A Law Arizona Can Live With, WASHINGTON POST, April 28, 2010, http://www.washingtonpost.com/wpdyn/content/article/2010/04/27/ar2010042702741.html?hpid=opinionsbox1 ( Some critics seem not to understand Arizona s right to assert concurrent jurisdiction ). 10 Will Arizona s Immigration Law Survive, supra note 9. 11 Jack Balkin, Is Arizona s New Immigration Law Preempted?, BALKINIZATION, April 27, 2010, http://balkin.blogspot.com/2010/04/is-arizonas-new-immigration-law.html. 3

except as permitted by the United States or Arizona Constitutions. 12 This argument is unpersuasive. Because the law expressly forbids any unconstitutional use of race by law enforcement, it should survive any facial challenge on Equal Protection grounds. Only an asapplied challenge with actual facts demonstrating improper discrimination should be able to provide a vehicle for a successful lawsuit under the Equal Protection Clause. In United States v. Brignoni-Ponce, 13 the Supreme Court held that border officers violated the Constitution by stopping a defendant solely because of his apparent Mexican descent. The Court explained that race/ ancestry can be used as one of many relevant factors in this context: Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant.... The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.... In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling.... In this case the officers relied on a single factor to justify stopping respondent s car: the apparent Mexican ancestry of the occupants. We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens.... The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens. 14 The following year, in United States v. Martinez-Fuerte, 15 the Court relied upon Brignoni-Ponce in holding that it is constitutional to refer motorists selectively to a secondary inspection area at a checkpoint largely on the basis of apparent Mexican ancestry. 16 The United States Court of Appeals for the Ninth Circuit has also noted that [r]ace or color alone is not a sufficient basis for making an investigatory stop.... However, race can be a relevant factor.... For example, a founded suspicion to make a border patrol stop can be based in part upon the characteristic appearance of aliens. 17 The Arizona statute is fully consistent with these cases. 12 E.g., James Doty, Arizona s New Immigration Law Is Unconstitutional, SALON, April 26, 2010, http://www.salon.com/news/immigration/index.html?story=/news/feature/2010/04/26/is_arizona_immigration_law_ constitutional. 13 422 U.S. 873 (1975). 14 Id. at 884-87 (emphasis added). 15 428 U.S. 543 (1976). 16 Id. at 563. 17 United States v. Bautista, 684 F.2d 1286 (9th Cir. 1982) (citations omitted). 4

B. Reasonable Suspicion. The term reasonable suspicion has been around since at least the 1960 s, when the Supreme Court justified a limited search of an individual when the officer has reasonable suspicion that that criminal activity is afoot and that the suspect is armed and dangerous. 18 The term reasonable suspicion is well developed in case law and law enforcement officers are extremely familiar with this standard, as much of their operation is conducted under it. 19 The language of the statute makes clear that race could be used only as a factor under the reasonable suspicion standard, not solely as a basis for investigation. Such action is permissible under Supreme Court precedent, 20 especially in light of the fact that the statute expressly limits police authority to that which is consistent with the United States and Arizona Constitutions. C. Asking for Identification. The Arizona law requires that [f]or any lawful stop, detention or arrest made by a [state or local] law enforcement official or a law enforcement agency... in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Presumably, the reasonable attempt required of police officers will include asking individuals who are suspected of being an unlawful alien for identification. Under Supreme Court precedent, officers are permitted to approach individuals on the street and engage them in conversation without implicating the Fourth Amendment. Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required. 21 A consensual encounter, however, rises to the level of a seizure under the Fourth Amendment when a reasonable person would not feel free to leave or otherwise terminate the encounter. 22 But such seizures are lawful under the Fourth Amendment if the officer has reasonable suspicion that criminal activity is afoot. 23 If reasonable suspicion exists, an officer is 18 Terry v. Ohio, 392 U.S. 1 (1968). 19 Will, supra note 9. 20 Whren v. United States, 517 U.S. 806 (1996) (holding that the subjective intent of the officer is irrelevant as long as he legally stops an individual). 21 Florida v. Bostick, 501 U.S. 429, 434 (1991) (internal citation omitted). 22 Id. 23 Terry, 392 U.S. at 21 (requiring the officer to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion ). 5

permitted to conduct a limited search of the person for weapons. 24 This is similar to what the Arizona law permits once an officer has reasonable suspicion that a person is an illegal alien, he may ask for identification to determine his legal status. Such a limited intrusion asking for identification is not outside of the scope of the limited search permitted under Terry. Terry s entire premise was based on balancing the needs of law enforcement against the legitimate expectations of individuals. 25 The Court found that, although a pat down of an individual could be embarrassing and intrusive, the need of law enforcement officers to protect themselves and do their job effectively outweighed the interests of the individual. The same balancing approach applies here. Arizona has a significant interest in determining the legal status of those within its borders when officers have reasonable suspicion that persons are there illegally. This interest is not outweighed by the extremely limited intrusion asking for identification into an individual s right to be free from unwanted government contact. III. Cases Involving Other State Laws. A. The Legal Arizona Workers Act was Not Preempted by Federal Law. An Arizona law called the Legal Arizona Workers Act ( LAWA ) was enacted in 2007. It applied to employers who hire illegal aliens and provided for revocation of their state license to do business in Arizona as its principal sanction. 26 This act was challenged as having been preempted by IRCA. 27 The Ninth Circuit found that LAWA was not expressly preempted because it fell within the savings clause of IRCA, which states that IRCA expressly preempts any State or local law imposing criminal or civil sanctions (other than through licensing or similar laws) upon those who employ... unauthorized aliens. 28 Ultimately, LAWA does not attempt to define who is eligible or ineligible under immigration laws. It is premised on the enforcement of federal standards as embodied in federal immigrations law. 29 The court then considered whether a portion of LAWA has been impliedly preempted. The provision in question mandates the use of a system called E-Verify, 30 which is a tool that checks the authorization status of employees. 31 The court first recognized that, though a state law or ordinance may not be expressly preempted, it may still be impliedly preempted and is still subject to the ordinary workings of conflict pre-emption principles. 32 Conflict preemption applies when a law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. 33 The Ninth Circuit agreed with the district court s holding that the requirement to use E-Verify was not preempted because, though Congress made participation voluntary, this does not mean that it prevented States from making participation 24 Id. at 25-26. 25 Id. at 22-26. 26 Chicanos por la Causa, Inc. v. Napolitano, 558 F.3d 856, 860 (9th Cir. 2009). 27 Id. 28 Id. at 864. 29 Id. at 866. 30 Id. 31 Id. at 860. 32 Id. at 866 (citing Geier v. Am. Honda Motor Co., 529 U.S. 861, 869 (2000)) (internal quotations omitted). 33 Id. 6

mandatory. 34 Rather, Congress plainly envisioned and endorsed an increase in its usage and such a requirement is consistent with and furthers this purpose. 35 The Ninth Circuit also considered the argument that such a requirement could result in discriminatory effects. 36 However, the court determined that nothing indicated that use of E- Verify resulted in greater discrimination and that such an argument was entirely speculative, as no complaint had yet been filed under LAWA. 37 The Supreme Court announced in late June 2010 that it will hear this case. 38 B. Pennsylvania Case. In contrast to the Ninth Circuit s findings in Chicanos por la Causa, the Middle District of Pennsylvania, in League of Latin American Citizens v. Wilson, found that a similar law imposing suspension of business permits for an employer who employed unauthorized aliens was preempted by federal law. 39 The court considered suspension of a business permit to be an ultimate sanction that is at odds with the plain language of the express pre-emption provision of the IRCA. 40 The court reasoned that [i]t would not make sense for Congress in limiting the state s authority to allow states and municipalities the opportunity to provide the ultimate sanction, but no lesser penalty. Such an interpretation renders the express preemption clause nearly meaningless. 41 The court also considered the revocation or refusal of a business license to be a violation of IRCA as well. 42 The court, though finding the Pennsylvania ordinances to be expressly preempted, still considered whether it was also impliedly preempted, recognizing implied preemption may still be applicable. 43 The court ultimately found that the federal government has a pervasive interest in immigration and that the IRCA is a comprehensive scheme that leaves no room for state regulation. 44 The court also found the ordinances to be in conflict with the IRCA because the employment provisions of the local ordinances differ from those in the IRCA. 45 C. All but Three Sections of California s Proposition 187 were Preempted by Federal Law Proposition 187 ( Prop. 187 ) was passed in the November 1994 general elections in California. 46 The main purpose of Prop. 187 was to prevent illegal aliens from receiving benefits 34 Id. at 866-67. 35 Id. at 867. 36 Id. 37 Id. 38 Chamber of Commerce of the United States v. Candelaria, Case No. 09-115. 39 Lozano v. City of Hazelton, 496 F. Supp. 2d 477, 518 20 (M.D. Pa. 2007). 40 Id. at 519. 41 Id. 42 Id. at 520. 43 Id. at 521. 44 Id. at 522-23. 45 Id. at 529. 46 League of United Am. Citizens, 1998 U.S. Dist. LEXIS 3418, at *1 (C.D. Cal. 1998). 7

or public services in the state of California. 47 Prop. 187 also included provisions denying public elementary and secondary education as well as public post-secondary education to students who are not citizens or who are in the U.S. illegally. 48 While this case was making its way through the court system, the President signed into law the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ( PRA ), which creates a comprehensive statutory scheme for determining aliens eligibility for federal, state and local benefits and services. 49 The Central District of California applied the De Canas test from De Canas v. Bica 50 in determining that all but three provisions of Prop. 187 had been preempted by the PRA. 51 The court determined that any provision regarding benefits for aliens was preempted because it was the intention of Congress to occupy the field of regulation of government benefits to aliens, which is declared throughout the PRA. 52 The court also stated that the states have no power to effectuate a parallel scheme..., even if it does not conflict with the PRA. 53 Thus, the only regulations that California can promulgate now are regulations implementing the PRA. 54 Those provisions were also preempted because they conflicted with provisions of the PRA. 55 In regards to the provision of Prop. 187 that denied public primary or secondary education to a child who is not a citizen or is present illegally, the court held that, though the PRA does not deny such a benefit, it does deal specifically with the topic by deferring to Plyler v. Doe. 56 The court also found sufficient evidence that Congress intended to occupy the field of rights for non-citizens with regard to public postsecondary education based on provisions in the PRA and in the Immigration Reform and Immigrant Responsibility Act of 1996. 57 Ultimately, the court concluded that California is powerless to enact its own legislative scheme to regulate alien access to public benefits. It can do what the PRA permits, and nothing more. 58 However, the court upheld a few sections of Prop. 187 that were not preempted. 59 D. Virginia Case. By contrast, the Eastern District of Virginia, in assessing the PRA, found just the opposite. 60 It found that Congress had not only failed to occupy the field of illegal alien eligibility for public post-secondary education, it has failed to legislate in this field at all and thus 47 Id. 48 Id. at *23-24. 49 Id. at *10. 50 De Canas v. Bica, 424 U.S. 351, 354, 363 (1976). 51 League of United Latin Am. Citizens, 1998 U.S. Dist. LEXIS 3418 at *14 16, 45. 52 Id. at *17. 53 Id. at *21. 54 Id. 55 Id. at *26-28. 56 Id. at *23. 57 Id. at *25. 58 Id. at *45. 59 Id. 60 Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 605-06 (E.D. Va. 2004). 8

has not occupied any part of it, completely or otherwise. 61 In reaching such a finding, the Eastern District of Virginia considered the Ninth Circuit s Ruling in League of United Latin American Citizens to be neither controlling nor persuasive. 62 61 Id. at 605. 62 Id. at 605 n.19. 9