As I said many times I am not interested in covering or particularly remarking on the "Big Story" whatever that is--and, yet aspects of the "Big Story" du jour, remind me of experiences from my career. So yesterday a U.S. District Court Judge, Susan Bolton, issued an order granting a preliminary injunction barring the essential elements of an anti-immigration law, Arizona SB 1070 the“Support Our Law Enforcement and Safe Neighborhoods Act,” from taking effect.
I believe that it is real easy to misunderstand this story from the perspective of a non-lawyer or someone living outside of the United States so I thought I would offer a bit of insight. On a very superficial level this story is about xenophobia, and racism versus tough immigration law enforcement and the exasperation of a border state with overburdened social and law enforcement resources. It is naive to believe that Arizona, New Mexico, Texas and California are not bearing the brunt of a terrible drug war along their southern borders. Nonetheless, Arizona's SB 1070 was predictably prevented from going into effect.
The primary reason SB 1070 was prevented from going into effect was because Judge Bolton made a determination that on the merits, the federal government would prevail in its case challenging the law based on the doctrine of "federal preemption." What is federal preemption? In its simplest terms, it is the constitutional provision that says in certain areas federal jurisdiction to make and enforce law trumps state jurisdiction to make and enforce laws. There are specific areas of international relations, constitutional protections of individual liberties, and a requirement for uniform enforcement of police powers across borders by the national government that supersede the interest of any given state. State laws in conflict with federal law are invalid.
While the Arizona anti-immigration enactment obviously impacts international relations and federal immigration law--the federal preemption doctrine bumps into many mundane areas of practice: medical malpractice, health insurance, "diverse corporate citizenship", and discrimination claims. In my sordid career I filed half a dozen state court actions that were "removed" to federal court under claimed "preemption." For a lawyer comfortable in state court, being "removed" to federal court can signal a disaster, because the rules of federal court and the sanctions for the unaccustomed practitioner are a minefield. Defense attorneys count on "preemption" as a procedural defense for the unwary plaintiff's counsel. This tactic is particularly effective for the young solo lawyer lacking a network of colleagues and strategic alliances to enable him or her to cope with this maneuver.
U.S. District Court is a frightening and unyielding place to pursue a civil lawsuit unless you the young lawyer are fully on top of your federal practice skill set, and are sufficiently disciplined to meet all deadlines and filing requirements of both the FRCP (federal rules of civil procedure) and the local rules. Most of the lawyers I know in OurTown have colorful stories of dealing with the now late-Judge John EgoManiac, who vaguely resembled a cross between Aristotle Onasis and Mr. Clean. The unwary young attorney who filed a federal lawsuit and or was "removed" to federal court and ended up in his Honor's vast chambers could justifiably feel like a meal in the lion's den.
Years ago, the Blond Super Lawyer wanted to adopt a child and we visited an adoption attorney's office to discuss a "targeted adoption." When we sat down in this wonderful young attorney's office we noticed that she had beverage coasters that had Judge EgoManiac's picture in the area where your wet beverage glass was placed. It was her creative response to being having had the experience of being held hostage in his chambers with orders "to bring [her] toothbrush," until she dismissed a lawsuit she filed that was pending in his courtroom. Nearly every lawyer of a certain age in OurTown has similar stories of this strange old monomaniacal Judge.
From the outsider's perspective American law can seem a crazy patchwork, that's because . . . it is.
Posts
Interesting glimpse of the legal world, as usual, BL. Most of us non-lawyers only know the kind of stuff that's covered in TV shows and movies. Thanks.
ReplyDeleteThanks, Gayle, I wish I had some sort of pre-post editing software--what a mess of a post. I've tried to clean it up--but you are as always too kind.
ReplyDeleteBL
part of what you explained regarding the fed aspect is true however to you who stated he would not dignify the law by reading it i suggest it mirrors the fed immigration laws and only trys to take over where the fed refuses to act in recent months the administration in its continued assult on business wants to punish businesses who hire illegals however it even at that made no provision to insist on their being deported i equate this to someone stealing a car and i buying it of them i think maybe it's strange this individual has thie car but don't investigate upon he discovery of the unlawful possesion of the car i am test driving with the thief along side me i am punished and the thief is let go to steal another in follow-up of this line and there has been no mention of this take on either side that i am aware is this if an employer is to make sure an applicant for employment is legal the employer must ack for documents however a law enforcement official can not "THINK" there are states that punish law enforcement not following up on illegal immigrant suspicions i believe maine or one new england state also i few others i read about over the past few month of this issue which i don't recall at this time but will soon
ReplyDeletemost other countries have much stricter immigration laws and take them very serious especially "MEXICO" i don'y view someone as compassionate in leaving a illegal noyt held accountable at the expences of the affect of the employment rate the continued rising of illegal drugs into the country and the violence those along the border are subject to plain and simple you want your ass living in america do it the way my grandfather did and and how about those proud cerimonies when some one took those steps to achieve citizenship this decision will be uphold probably by the districts full body the judges fellow justices however if it is taken to the highest court it will be over turned any opinion on this issue are meritless in given by anyone not in full knowledge of the full exact context of the bill
in this day and age i'm sure we can duplicate the great wall of china
the pope
one more important thing to understand
ReplyDeleteit is not anti immigration law
it is anti illegal immigration law
the pope
Your Holiness--
ReplyDeleteI can hear you in High Dungeon, but as you know the point of this post was not about the merits of SB 1070 which effected not only undocumented non-citizens but documented non-citizens and anyone "appearing" to law enforcemnt to be a non-citizen. In some parts of the world they call this sort of thing, racist. In both the Old and New Testament of the Bible, they call this sort of behavior . . . a sin. Check it out.
The point of the post was about the doctrine of federal pre-emption and how and why it operates in reality.
BL
i once again state to you mr. holder read the bill it prohibits racial profiling however even if it didn't if you were legal and proud to be so you would volunteer documentation or at the least understand the need to protect the the "GENERAL WELFARE " there is a term you know and love
ReplyDeletethe pope
go here
ReplyDelete(http://www.prisonplanet.commexicans-take-over-part-of-arizona.html
the pope
As one of your readers who is not a lawyer, and not a US citizen, I thought I'd comment on this post...
ReplyDeleteI think this is more that the "big story of the day". Both the original passing of the law and the injunction against it were reported in the British newspapers and on the BBC. Admittedly, American news is more widely reported in Britain than British news is reported in the US, but even so it's only the big American stories that tend to get reported. As well as being of interest in itself, the story has important analogues here: both immigration and federalism (in our case the division of powers between member nations and the European Union) are big issues in Britain and Europe.
I think it was a pity that federal preemption was invoked in the injunction. Clearly immigration law is within federal jurisdiction, but I think the detail of how to enforce it is best left to individual states. Set against the doctrine of federal preemption is the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
As a purely practical matter, I think the best chance of getting a working immigration system is to allow different states to try different approaches (all based on the same federal law).
I don't like SB 1070, but I also believe power should be devolved to the lowest possible level, so I don't like seeing federal preemption invoked. Personally I'd rather have seen an injunction based on the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
As usual, Martin, I am grateful for your insightful comments and views. I do disagree with your notion that immigration is an area appropriate for state-level experimentation in "working immigration" system. This is particularly the case with the American southwest. Have you ever visited this region?
ReplyDeleteThe problem in part is historical and cultural--the American south as you no doubt know was a region where Jim Crow segregation was a legal operating institution through the early 1960s and even afterwards. Some of what the immigration debate is about is a part of that legacy and language used in that debate are racially-code words and expressions. I'm sure you would agree with me that the federal government was acting appropriately when it used its full force and preeminence to end racial segregation of schools and enforce civil rights versus allowing "states rights" to implement their individual experiments in allowing "coloreds" into the mainstream at the local pace and whim.
You see, the states rights folks are making the same argument about immigration. What's really going on is a redux of the old racism--rationalized.
BL
Let me be clear: any state-wide variation in the enforcement of immigration has to be both constitutional and comply with federal immigration law. Having said that, the immigration issues faced by (say) Arizona, North Dakota and Massachusetts are different and I think those states should be free to have some differences in their enforcement policy.
ReplyDeleteAs you say, sometimes the federal government has to step in. Of course I agree it was correct to enforce civil rights in the south in the 1960s. But that's what I'm saying here as well. The newspapers say the reason the judge gave for the injunction was: "Federal resources will be taxed and diverted from federal enforcement priorities as a result of the increase in requests for immigration status determination that will flow from Arizona." (I'm relying on newspapers since I haven't had time to read the injunction) - I'd rather have seen the injunction granted because it violated the Fourth Amendment – protection from unreasonable search and seizure (asking for someones papers on unreasonable grounds being an unreasonable search). I think there are lots of reasons SB1070 is bad, and I would liked to have seen it struck down without invoking the federal supremacy clause.
On a separate topic, you ask: have I ever visited the region? I've visited Arizona on three separate occasions myself: twice to visit the Grand Canyon (once hiking in and around the north rim, and once a brief visit to the south rim) and once "passing through" when I cycled across America (California to Georgia, via, among other places, Arizona). Here's a picture of me "Standing on the corner in Winslow, Arizona": http://www.flickr.com/photos/martinbudden/1427590389/ (I'm the guy on the right).