Over at SCOTUSblog, whose servers must be bursting at the seams right now, WLF’s Chief Counsel Richard Samp is participating in an online symposium in the Arizona v. U.S. immigration decision. Rich’s commentary expands upon the one he did for The Legal Pulse (see below) yesterday. View his thoughts here.
Given the frosty reception the Obama Administration received from the U.S. Supreme Court during April’s oral arguments, today’s decision in the Arizona immigration case was probably the best that the Administration could have hoped for. The decision upholding the key provision of the Arizona’s immigration law can nonetheless only be viewed as a significant defeat for the Administration.
In filing suit in 2010 against the Arizona law (SB 1070), the Administration essentially took the position that States are permitted to assist with immigration law enforcement only to the extent that the Executive Branch explicitly calls for assistance. Thus, in challenging § 2(B) of SB 1070 – which directs Arizona law enforcement officers to check the immigration status of anyone they have lawfully stopped, whenever they have a reasonable suspicion that the individual is an illegal alien – the Administration argued that § 2(B) skews enforcement priorities by forcing federal officials to respond to what it anticipated would be a groundswell of requests for immigration-status information. The Court found no merit in that argument, noting that a federal statute explicitly encourages States to assist with immigration enforcement by asking for information on immigration status of those in its custody. Continue reading
Two years ago, The Legal Pulse featured a guest commentary by White & Case LLP partner Eric Grannon, who is also a member of Washington Legal Foundation’s Legal Policy Advisory Board, entitled Is an Antitrust Violation a “Crime Involving Moral Turpitude”? DOJ Thinks So. In the post, Mr. Grannon described a “Memorandum of Understanding” that subjects foreign business executives to exclusion or deportation from the U.S. if they are convicted of a criminal violation of U.S. antitrust laws.
Mr. Grannon and his White & Case colleague Nicolle Kownacki have authored a more extensive analysis of the Memorandum for the April 2012 issue of The Champion, published by the National Association of Criminal Defense Lawyers. Even though, as the article explains, the Memorandum has never been subjected to judicial scrutiny or gone through any public comment process, the Justice Department routinely uses it as a “carrot” to encourage foreign executives to plead guilty to antitrust violations. In each of the 50 cases where foreign executives entered plea agreements with the Antitrust Division, DOJ granted the defendants a waiver from the moral turpitude memo.
Grannon and Kownacki lay out a very convincing case in the article that criminal violations of the Sherman Act are not acts of moral turpitude, citing to compelling case law which supports their argument.
One would hope that at some point in the near future, a Justice Department which claims to respect civil liberties will take a second look at this Memoradum and either eliminate it or make substantial changes. Grannon and Kownacki’s article certainly provides the intellectual basis for doing just that.
In a 115-page memorandum opinion, Judge Sharon Lovelace Blackburn upheld certain portions of the Alabama immigration law passed in June and challenged by the Department of Justice. She enjoined other portions out of concern for preemption by federal law. A quick run-down of the provisions upheld and enjoine
- A provision prohibiting unauthorized aliens from enrolling in a public state university.
- A misdemeanor crime for unauthorized aliens to apply for, solicit, or perform work. Continue reading
The United States Constitution (a great read for those in Washington who have not yet read it, I highly recommend it) mandates that the President of the United States “shall take care that the laws be faithfully executed.” Art. II, § 3, cl. 4. Of course, when it comes to many laws on the books, a faithful execution is open to varying interpretations. The Obama administration last Thursday took it to a new level by implementing a policy of selective deportation of illegal immigrants.
In a statement posted to the White House website by Cecilia Muñoz, the White House Director of Intergovernmental Affairs, the administration announced that the President had directed the Department of Homeland Security (DHS) to prioritize the removal of illegal immigrants who have committed crimes in our country. DHS will review, on a case-by-case basis, those who are slated for deportation. If you are part of the favored groups outlined in a June 2011 Immigration and Customs Enforcement (ICE) memo written by Director John Morton, then you have far less to worry about now than when you broke the law in entering this country illegally.
That bears repeating: illegally.
The administration seems to conveniently ignore that entering this country without permission is a crime. While prosecutors have always had the power to use their discretion in enforcing the laws based on a variety of factors, generally there are few executive-level policy pronouncements that grant amnesty to law-breakers as a matter of course. If you don’t like the law, then change it; some in Congress tried - but failed - to pass the “DREAM Act,” which would have enacted as law similar policy. Now the administration wants to change the law by fiat.
The Federation for American Immigration Reform described the new policy as “an amnesty program for millions of illegal aliens” that violates the separation of powers and clear mandate of Congress. After all, the law (8 U.S.C. §1325) states very clearly that illegal entry is…illegal. Furthermore, any alien who is in this country in violation of the law is deportable (8 U.S.C. §1227). There is nothing in the letter or spirit of these laws that grants the power to selectively decide who is and who is not worthy of deportation. If you are here without permission, you’ve not only broken the law at least once, you’re also to be deported.
Everyone agrees that the most dangerous criminals who are here illegally should be our first priority for deportation. But that does not make them the only priority. Surely we have the resources and ability to make sure the laws are equitably and fairly enforced. There should be discretion for prosecutors and judges to determine the appropriate remedy for a violation of a law, but no governmental policy should give blanket amnesty to people already caught violating the law. Prioritizing efforts in enforcement and resources is one thing. Using subjective criteria to favor certain people on whom resources have already been expended in investigation is entirely different.
Depending on how the administration actually implements this policy, it is certainly open to challenge as a violation of the Constitution and laws of the United States. WLF will continue to monitor developments as we seek to enforce this nation’s immigration laws, whether certain politicians and policy-makers like it or not.
Cross-posted by Forbes.com at On the Docket
When addressing federal preemption issues (i.e., claims that state regulation is barred because it conflicts with federal law), the U.S. Department of Justice has been all over the map. As detailed in this prior blog post, DOJ has adopted an anti-preemption stance in state-law tort cases filed by its allies in the plaintiffs’ bar. But it has advanced strongly pro-preemption positions in cases challenging efforts by States to control illegal immigration.
In an immigration decision issued yesterday, the Supreme Court served notice that it is watching DOJ legal filings for potential inconsistencies on preemption issues. In rejecting DOJ’s argument in Chamber of Commerce v. Whiting that an Arizona statute requiring employers to verify the work-eligibility of prospective employees using the E-Verify system was preempted by federal law (under which participation in E-Verify is optional in most instances), the Court noted that the Obama Administration had adopted an inconsistent position in a 2009 federal court filing.
The 2009 case arose in a different context: a challenge to a federal Executive Order making E-Verify mandatory for all federal government contractors. Nor is DOJ in any sense legally bound by what it told a federal district court almost two years ago. The Supreme Court’s citation to the 2009 brief nonetheless made clear that inconsistent DOJ legal positions regarding preemption issues will not go unnoticed. As the Court pointed out, if Congress permitted the President to make E-Verify mandatory for government contractors when hiring employees, then it cannot also be true (as DOJ argued in Whiting) that Congress intended to preempt all efforts to require employers to participate in E-Verify.
The lesson should be obvious. DOJ risks losing its credibility with the Court unless it makes every effort to ensure that its views on important legal issues remain consistent from case to case.
Next Monday morning’s courtroom arguments in the challenge to Arizona’s crackdown on illegal immigration could end up being historic for reasons having nothing to do with immigration policy. More than a dozen television networks have sought and been granted permission to tape the proceedings. Most will broadcast them on a delayed basis, while C-SPAN will offer live coverage, and the court will stream live video to selected law schools.
The case, United States v. Arizona, will be argued orally on November 1 before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco. A federal district court in Phoenix struck down the new Arizona statute in July, agreeing with the Obama Administration that the statute is preempted by federal immigration law. Arizona appealed that decision to the Ninth Circuit, supported by amicus curiae Washington Legal Foundation.
Federal court proceedings are seldom televised. The U.S. Supreme Court has never permitted its oral arguments to be videotaped, and cameras in the lower federal courts are only slightly more common. The Justices’ biggest objection to allowing cameras is that judges and lawyers might play to the camera instead of focusing on the legal issues in dispute.
Next Monday’s argument may provide a good test of that theory. The proceedings will likely be witnessed by a huge audience, at least in comparison to audiences for more typical, less controversial legal proceedings. If participants seem intent on speaking in sound bites (thereby assuring themselves a place on the evening news), that would tend to give credence to the Justices’ concerns. But if the proceedings stick to the low-key legal discussions one usually finds in an appellate court, then perhaps recalcitrant Supreme Court Justices ought to begin to reconsider their deep-seated aversions to cameras.
Cross-posted at Forbes.com’s “On the Docket”
Department of Justice lawyers have been busy in the past month, filing briefs in a wide array of cases raising claims that a state law is preempted because it conflicts with federal law – including one just last Friday in DOJ’s high-profile lawsuit challenging the new Arizona immigration statute. One would hope that our Nation’s top lawyers would adopt a consistent position on the doctrine of preemption, which implicates sensitive issues regarding federal-state relations. Unfortunately, recent DOJ briefs appear to be based all too often on political considerations, shifting between a pro- or anti-preemption view depending on which position best advances the interests of the Administration’s political allies. Continue reading
- Brief filed in United States v. Arizona. On Appeal from the United States District Court for the District of Arizona. September 2, 2010.
From The Legal Pulse:
- Patent Marking Lawsuit Trollers Get a Boost with Brooks Brothers Opinion – By Glenn Lammi
- Will En Banc Review Denial “Law Review” Opinions in al-Bihani Case Instruct the Supreme Court? – By Stephen Richer
- “Can I Tell You the Truth?”: A Valuable Addition to Scholarship on Federal Off-Label “Promotion” Policy – By Glenn Lammi
- Federalizing Fiduciary Duties Through Shareholder Lawsuits: Three Reasons For Court Scrutiny
By William G. Lawlor and Michael L. Kichline, partners with the law firm Dechert LLP, and Michael J. Newman, an associate with Dechert LLP.
- Stock-Option Backdating Cases Reflect Costs Of Overcriminalization
By Sarah Hody, a summer associate at the law firm Fiore & Levine, PLLC in Arlington, Virginia, and Martin Kwedar, a public interest lawyer in Arlington, Virginia.
- Two Rulings Reflect Judicial Frustration With Federal Discovery Rules
By R. Ben Sperry, a 2010 summer fellow with Washington Legal Foundation and a law student at George Mason University Law School where he is a candidate member of the George Mason Law Review.
- United States v. Arizona
On July 20, 2010, WLF filed a brief in the U.S. District Court for the District of Arizona, urging it to reject the Obama Administration’s challenge to the new Arizona law that addresses the state’s illegal alien problem.