2011 constitutional law study guide & problem supplement

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CUA

THE CATHOLIC UNIVERSITY OF AMERICA

Columbus School of Law Washington, DC 20064

Constitutional Law Professor DestroOverview & Methodology Version: 16 January 2011

Contents�Course Description .......................................................................................................................................... 14 Text and Required Readings .......................................................................................................................... 14

Text ............................................................................................................................................................... 14 Additional Required Reading: ................................................................................................................... 14 Hornbooks & other study guides: .................................................................................................................... 14

Examinations & Interim Evaluations ........................................................................................................... 15 Class Participation and Attendance ............................................................................................................... 16 Oral Advocacy .................................................................................................................................................. 16 Make-up Classes ............................................................................................................................................... 16 Assignment Sheets ........................................................................................................................................... 16 Office Hours: .................................................................................................................................................... 17 TWEN Accounts ............................................................................................................................................. 17 E-mail ................................................................................................................................................................ 17 Assignments ...................................................................................................................................................... 17 My Perspective on the Course ....................................................................................................................... 18

A. My Responsibilities ............................................................................................................................... 18 B. Your Responsibilities ............................................................................................................................ 19 C. Knowledge, Skills & Values: Why I Teach the Course the Way I Do. .............................................. 19

Constitutional Law: Translating substantive knowledge into useable skills ............................................ 21

A. Relationship to Other Courses ............................................................................................................ 21 B. Common Criticisms of the Course ..................................................................................................... 22 C. What do Constitutional Lawyers Do? ................................................................................................ 23

1. Unbundling Legal Services ........................................................................................................... 23 2. What Do Courts SayAbout Effective Client Service? .......................................................................... 24

Summing Up ..................................................................................................................................................... 26

A. Grades ..................................................................................................................................................... 26

1. How to Get an “A” ....................................................................................................................... 26 2. How to Get a “B” .......................................................................................................................... 26 3. How to Get a “C” .......................................................................................................................... 26

B. How to Prepare ..................................................................................................................................... 26

Integrating Knowledge, Skills, and Values ................................................................................................... 29 Preparation and Participation in Class .......................................................................................................... 30 Taking Notes Effectively ................................................................................................................................ 30 Closing Thoughts: What Constitutional Law is NOT ................................................................................ 31

Reasoning Skills Required for “Constitutional Lawyering” ................................................................. 32

Inductive reasoning (“from the specific to the general”). ....................................................... 32


Deductive Reasoning: (“from a general rule to a specific outcome”) .................................... 32 Analytical reasoning (“developing, using, and comparing analytical models”) ..................... 32

Learning the “Black Letter” Law and Hoping to “Get by on the Bar” is Law Student Malpractice. Teaching only “Black Letter” Law in the Hope that it will help you “get by on the bar” is Educational Malpractice. .................................................................................................. 44

There are different “levels” of knowledge. ............................................................................................. 45 Integrating Knowledge, Skills, and Values .............................................................................................. 45

Preparation and Participation in Class .......................................................................................................... 46 Taking Notes Effectively ................................................................................................................................ 47 Closing Thoughts: What Constitutional Law is NOT ................................................................................ 48 Problem Supplement ....................................................................................................................................... 49

Instructions for All Problems ................................................................................................................... 49

Problem 1: Pleading & Proof of a Claim Twombly & Iqbal “Revisited” .............................................. 50 Problem 2: “Permission to Adjourn?” Interpreting the Constitution in the Legislature .................... 51

Constitutional Provision: ........................................................................................................................... 51 Facts you have ............................................................................................................................................. 51 What other facts do you need? If any? .................................................................................................... 51

Problem 3: “So, Can I Run?” Interpreting the Constitution in the Law Office ................................... 52

Giving advice to your client based on the text of the constitution alone. ......................................... 52 Anticipating the Advice Opposing Counsel will give to his/her client, based on the text of the

constitution alone. ................................................................................................................................. 52 Role Reversal: The Need to Understand the Needs of the Opposition and the Role of

Opposing Counsel ................................................................................................................................ 52 Bureaucrats! You can’t live with ‘em, but you can’t operate a state government without ‘em

either. Now what? ............................................................................................................................... 53 Questions to check your understanding [i.e. to see if you "get the point" of this exercise]: .................. 53

Problem 4: Shaping the Character of the Judiciary When Does a Judge Become a Judge? Interpreting the Constitution in the White House ............................................................................. 54

Question 1: What Powers does the President Actually Have? ......................................................... 54 Question 2: What power does the Senate really have? ...................................................................... 54

The Case of the Indicted Nominee A Question to check your understanding. ..................................... 55

Question 1: The Powers of the President ........................................................................................... 55 Question 2: What is the relevance of Article VI? ............................................................................... 55 Question 3: To Whom Does the Nominee Complain? .................................................................... 55

Problem 5 The National Legislative and Taxing Powers: Can they really force me to buy health insurance? Interpreting the Constitution During a Public Debate ................................................... 56

Problem 6 Chisolm v. Georgia Can the Supreme Court of the United States compel a State to appear, enter a judgment against it, and execute on its property if it refuses to pay?.................... 64

Problem 7 Express Limits versus “Fundamental Principles” Calder v. Bull, 3 U.S. 386 (1798) ........... 68 Problem 8 Federalism & Reserved Powers Arizona Tackles the Problem of Illegal Immigration ..... 69


Understanding the Arizona Statute “in Context” .................................................................................. 69 An Exercise in “Active” Statutory Interpretation ................................................................................. 71 Testing Your Knowledge: Applying the Law in a Real Case: Escobar v. Brewer .............................. 125

II. Agenda .................................................................................................................................................... 125

Complaint in Escobar v. Brewer ........................................................................................................... 131


The Federalist on the plan of American Government

… In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. …

… There are ... two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. …

… In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

THE FEDERALIST NO. 51 (Alexander Hamilton or James Madison).

Some Reflections on the Interpretation of Language …

"'When I use a word,' Humpty Dumpty said, in a rather scornful tone, 'it means just what I choose it to mean – neither more nor less.'

"'The question is,' said Alice, 'whether you can make words mean so many different things.'

"'The question is,' said Humpty Dumpty, 'which is to be master – that's all.'"

Lewis Carroll, Through the Looking Glass, Chapter VI.


…. . . And of Law

“Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them.”

Bishop Hoadley’s Sermon, preached before the King, 1717

… And of some of the Justices’ views of the Court’s authority

“We are under a Constitution, but the Constitution is what the judges say it is.”

Chief Justice Charles Evans Hughes, 1907 Speech at Elmira, New York

“The consequence of the limitations under which the Court must sometimes operate in this area [military affairs] is that other agencies of government must bear the primary responsibility for determining whether specific actions they are taking are consonant with our Constitution. To put it another way, the fact that the Court rules in a case … that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.”

Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. REV. 181, 193 (1962) (discussing the Court’s decisions in Korematsu v. United States and Hirabayashi v. United States)

An “Anatomy” of Litigation (from an American Choice of Law Perspective)


RESTATEMENT (3D) FOREIGN RELATIONS SECTION 401: CATEGORIES OF JURISDICTION

Under international law, a state is subject to limitations on (a) JURISDICTION TO PRESCRIBE, i.e., to make its law applicable to the activities, relations, or

status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court;

(b) JURISDICTION TO ADJUDICATE i.e., to subject persons or things to the process of its courts or administrative tribunals, whether, in civil or in criminal proceedings, whether or not the state is a party to the proceedings;

(c) JURISDICTION TO ENFORCE, i.e., to induce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other non-judicial action.


A USEFUL MODEL OF CONSTITUTIONAL ANALYSIS

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, *636 and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government *637 as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling *638 the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring).


COURSE DESCRIPTION

This course is a 5 credit introduction to constitutional law. Subject matter to be covered includes: Judicial review, the structure and allocation of power among the branches of the federal government (separation of powers) and the states (federalism), the national commerce power, legislative, executive and judicial authority, an introduction to "substantive" rights, race relations, freedom of speech and religion, equal protection, and the protection of other individual rights.

The course is not a substitute for advanced courses in specific areas of constitutional concern [e.g., First Amendment (speech and religion), constitutional theory, federal courts, criminal procedure, race relations, civil rights and education law], and you are encouraged to supplement the background provided by this course with the more detailed examination provided by upper level courses in both constitutional law and related areas which draw heavily upon the basic principles studied here, such as Conflict of Laws, Administrative Law, and Federal Courts.

TEXT AND REQUIRED READINGS

Text

• Text: Randy E. Barnette, CONSTITUTIONAL LAW: Cases in Context (Aspen Publishers, 2008), (ISBN: 9780735563445) & Supplement

• David Currie, THE CONSTITUTION OF THE UNITED STATES (U. Chicago Press, 2d ed. 2000)

Additional Required Reading:

As assigned from the following: A. Hamilton, J. Madison, J. Jay, The Federalist (1787-88) (available online at

http://www.constitution.org/fed/federa00.htm). The Antifederalist Papers, available online at: http://www.constitution.org/afp.htm Recommended Readings: Optional materials provided for background and understanding.

Hornbooks & other study guides:

You DO NOT need to buy a hornbook. The following are good choices if you decide to use additional materials.

• John E. Nowak & Ronald D. Rotunda, PRINCIPLES OF CONSTITUTIONAL LAW (4th ed. Thompson-West, 2010) (paperback)

• John E. Nowak & Ronald D. Rotunda, CONSTITUTIONAL LAW (8th ed. 2010) (library stacks; “Principles” is an abridged version.)

• Any commercial bar prep outline on Constitutional Law. • CALI Exercises (links are available on TWEN – a great way to test yourself on “black

letter” constitutional law) • Paul E. McGreal & Linda S. Eads, QUESTIONS & ANSWERS: CONSTITUTIONAL LAW

(Lexis/Nexis, 2d Edition 2007) (primarily multiple choice questions, which are a good way to test yourself on “the rules”)


EXAMINATIONS & INTERIM EVALUATIONS

Evaluation Form % Grade

Detail

Periodic Quizzes, Oral & Written

Advocacy 15%

There will be one or more subject area quizzes in multiple-choice format. There will also be several written assignments, and each student will present at least one oral argument during the course of the semester. Together, these assignments will count for 15% percent of the final grade.

Final Examinations 85%

Coverage: The final examination will cover all material assigned for class, including materials covered in writing and oral advocacy assignments.

Format: Essay. Length: 3 or 3.5 hours (instructor option)

Materials Permitted: Completely “open book.” This means: Any course materials and any work product, such as an outline, that you have prepared, or participated in preparing with other classmates; commercial outlines, and hornbooks.

Date/Time Friday, May 13, 2011 at 9:30 AM

Discretionary Points

Discretionary points are awarded (or subtracted) on the basis of classroom performance (or lack thereof). Because classroom participation is expected from all members of the class, discretionary points are not usually a factor in your grade, but I do reserve the right to award discretionary points for superb class performance reflecting a level of understanding substantially in excess of what is demonstrated by a student's performance on the graded final exams. I also reserve the right to deduct discretionary points in the rare case where a student is consistently unwilling to participate or unprepared.


CLASS PARTICIPATION AND ATTENDANCE

You are expected to attend each class, to be prepared, and to participate in class discussion. As one might expect, adequate preparation is essential to a complete understanding of the materials covered in class. Please note that since the course emphasizes analytical skills in addition to familiarity with the case law, not having read the material will not excuse classroom participation. (i.e. "I pass" is not an acceptable response under any circumstances.) Positive discretionary points will not be given, but the right to assign negative points for failure to participate is retained by the instructor.

Attendance: Academic Rule V.(1) provides in relevant part as follows:

Regular and punctual attendance at class meetings or equivalent course exercises is a condition of receiving credit in all courses. In general, if a student misses more than two hours of course work for each credit hour assigned to the course the instructor may direct the dean's office to exclude the student from the course....Each instructor is responsible for announcing and enforcing the specific attendance policy for that course. ….

Please consult the academic rules for the full text of the quoted rule. Any student whose absences exceed the limit stated in the rule will be excluded from the course.

ORAL ADVOCACY

At some time during the course of the semester, each student will be expected to participate in at least one mock oral argument of a case pending before the Supreme Court or some federal or state appellate court that focuses on the issue(s) discussed during the previous week.

MAKE-UP CLASSES

There may be a need to schedule one or two make-up classes due to the occurrence of national holidays or other events such as snow days on days when class would otherwise be scheduled, or in cases where the instructor will be unavoidably absent. Please consult your calendars and be prepared to discuss a mutually convenient time for scheduling such sessions. Specific assignments for make-up sessions and dates will be announced in class, in the syllabus, or on TWEN.

ASSIGNMENT SHEETS

This syllabus contains the basic course outline. The questions and problems raised, along with others raised in class by the instructor, will serve as the basis for classroom discussion. They also serve as a study guide for the examination in this course.


OFFICE HOURS:

After class 12:30-2:30 Monday, Tuesday, Wednesday

Other times By appt.

Please feel free to stop by my office to discuss the course, or any other questions you might have. I will generally be available to meet with groups assigned to make class presentations after class from 12:30-2:30 P.M. If there are no group meetings scheduled, and you are otherwise available during that time, please seem me in advance to set up an appointment during that time.

TWEN ACCOUNTS

The materials in this syllabus will be posted on TWEN (West Education Network). Discussion of classroom material “on-line” will be on TWEN. In order to use TWEN you must have an active WESTLAW account number.

E-MAIL

Email: E-mail will serve as the “official” medium of communication for the class. Please make sure that the law school registrar’s office has your current e-mail address and that it is entered in your TWEN account. I will be using that address to send out materials relating to class, including syllabus updates and answers to questions. Please make sure that the e-mail address you provide on TWEN is the one that you check regularly.

If you need to email me, the best address is [email protected]. Please make sure to put “Constitutional Law” in the subject line.

ASSIGNMENTS

Please read assigned material in the order given. The materials in the supplement follow the materials in the text chronologically. Please consult the placement notes in the Supplement to determine their relationship of the recent materials to the materials in the text.)


Welcome to Constitutional Law! I look forward to getting to know each of you this semester, and to taking time to work with you, as individuals and in work groups, to build the knowledge, skills, and values you will need to represent clients whose needs require analysis of constitutional issues.

This memo contains important information about how we will approach our study of constitutional law this semester. The Course Description, which is posted on TWEN, contains the substantive rules that govern the course, including coverage, examinations and other measures, and study questions. It is every bit as much a part of the “course materials” as the book and the problems. Please read it carefully.

Attached to this memo is the list of assigned readings for the week of January 11. Please do NOT “read ahead” this week or next because each of the exercises is designed to introduce you to the methodology of constitutional law. Each assignment will impart specific knowledge about “how to study” and “what to look for” as you read constitutional cases. You will have plenty of opportunity to “read ahead” later in the semester.

MY PERSPECTIVE ON THE COURSE

It is normal for first-year law students to “compare notes” about professors, course coverage, and classmates. In fact, it would be abnormal if one did not do so. This is why a few introductory words (actually, more than a few!) are in order to set the stage for the adventure on which we will embark starting on Monday.

A. My Responsibilities

My job as your professor is to lay the groundwork that you will need to deal with constitutional issues, whether they arise in advanced courses, in a clinical setting, in an internship, or in practice. In fact, the goals of the course are actually rather simple:

1) To teach you how to read the Constitution of the United States

2) To teach you how to recognize a constitutional issue lurking within a set of facts;

3) To teach you how to formulate a constitutional question, and

4) To teach you to understand and use the standard methodology of constitutional law – known as “two-tier analysis” – to

a. Advise a client whose problem requires analysis of a constitutional issue;

b. Litigate a case (i.e. from pretrial discovery, through trial, and on appeal); or

c. Write a statute or constitutional provision that “responds” to a decision of the Supreme Court of the United States or of a State that is, for any reason, politically or morally unacceptable.

5) To be available to you in class and in the office to answer your questions – and to help you formulate them!

6) To grade you fairly, and to make the reasons for the evaluation clear to you.

The goal of this course is not to prepare you for the bar. That is the role of a bar review course. Nor is it to teach you a hornbook full of black-letter rules. That is why hornbooks are written.


The goal of this course is to teach you how to think like a constitutional lawyer! By the time you take the exam, you must be able to do the following things:

• Read the United States Constitution and understand its relationship to federal statute law, to treaties, and to state constitutional and statute law.

• Read and understand the meaning of statutes. • Without reference to case law, recognize a constitutional law issue when you see one. • Read a constitutional decision, and be able to explain the differences among the

majority, concurring, and dissenting opinions. • Explain what issues are resolved by a case, which are left open for future cases, and

which are ambiguous. • Explain, in a very general way, the differences among the main voting blocs within the

Supreme Court on key constitutional issues. • Extract and use the “standards of review” announced by the Court to formulate issues

for pleading and practice – including discovery. • Draft a demand or opinion letter; a complaint; and an in-depth analysis of a limited

issue.

B. Your Responsibilities

1) To be prepared for every class. 2) To attend and participate in every class. (This generally means “to ask questions”, but

it can also mean to participate in the problem-solving exercises we will be using in every class.)

3) To learn how to take notes effectively, and to use them to study. We will teach you how to do so.

4) To do all written assignments and to submit them as required. 5) To visit with me “one-on-one” at least twice during the semester. (More often is

encouraged.) 6) To visit with me in your study group – if you have one. If you do not have a study group,

we will assign you one. 7) To work closely with your assigned tutor on a weekly basis.

C. Knowledge, Skills & Values: Why I Teach the Course the Way I Do.

I am a civil rights litigator and advocate by training and experience. Over the course of my career, I have been (and remain) involved in constitutional litigation at the federal and state trial court levels, and in the state and federal appellate courts up to and including the Supreme Court of the United States. I have assisted in writing constitutional provisions at all levels of government (state, federal, and international), and have been involved in legislative affairs (drafting, testimony, strategic planning). In addition to basic and advanced constitutional law, I teach comparative constitutional law, legal ethics, and private international law (Conflict of Laws) – all of which have significant constitutional components. And finally, I teach and write in the areas of civil rights, first amendment rights, legal ethics, bioethics, and comparative constitutional law.


As an academic and a practitioner who has seen advocacy and judging that runs the gamut from excellent to mediocre to downright awful (i.e. malpractice and breach of fiduciary duty by counsel, both hired and pro bono), I believe strongly that a thorough understanding of basic constitutional law requires that the course be organized around the three basic components of all effective legal education programs identified in the American Bar Association’s 1992 “MacCrate Report”1: knowledge, skills, and values.

1. Knowledge: Constitutional law is an integral component of nearly every course you have taken so far, and will take in the future. It law requires that you absorb (i.e. read carefully) an enormous amount of material crammed (unreasonably, in my view) into a one-semester, five (5) credit course. This means that we must – and will – take advantage of what you already know. The introductory material is designed to make those connections before launching you into new material.

2. Skills: Skills= “applied knowledge.” In constitutional law, as in other analytical courses, you will be expected to learn and practice a set of fundamental analytical skills2 that will enable you to:

a. “develop and evaluate strategies for solving a problem or accomplishing an objective”;

b. “analyze and apply legal rules and principles”; c. “identify legal issues and research them thoroughly and efficiently”; d. “plan, direct, and (where applicable) participate in factual investigation”; e. “communicate effectively, whether orally or in writing”; f. “counsel clients about decisions or courses of action”; g. negotiate in either a dispute-resolution or transactional context”; h. “employ — or to advise a client about — the options of litigation and alternative

dispute resolution”; i. “practice effectively”; and j. “represent a client consistently with applicable ethical standards.”

3. Values: As used in the MacCrate Report, the term “values” relates to the “values” that are specific to a proper understanding of the legal profession, the purpose of which is to serve clients and the administration of justice3.

a. Attaining a level of competence in one’s own field of practice, b. Maintaining a level of competence in one’s own field of practice, c. Representing clients in a competent manner;

1 ABA Section on Legal Education & Admissions to the Bar, Legal Education and Professional Development — An Educational Continuum, REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP (ABA 1992), pp. 138-140. (The report is called the “MacCrate Report” because the chair of the task force was the late Robert MacCrate, a respected trial lawyer and partner in one of the leading law firm in Omaha, Nebraska.). “The Gap” to which the report refers is the gap between the knowledge, skills, and values one acquires in law school and the knowledge, skills, and values required for law practice. 2 The list of analytical skills is taken directly from the “MacCrate Report.” Id. at 138-140. 3 Id, at 140-141.


d. “The values of promoting justice, fairness, and morality in one’s own daily practice”; e. “The values of participating in activities designed to improve the profession,

assisting in the training and preparation of new lawyers”; and f. “The values of seeking out and taking advantage of opportunities to increase his or

her knowledge and improve his or her skills.”

CONSTITUTIONAL LAW: TRANSLATING SUBSTANTIVE KNOWLEDGE INTO USEABLE SKILLS

A. Relationship to Other Courses

Constitutional law will be your first “analytical” and “applied skills” course. You have seen (or will see) some constitutional law in the courses you are taking (or have already taken) this year. For example:

• Civil Procedure: Jurisdiction over the person: International Shoe; Erie v. Tompkins, Asahi Metals, Burham v. Superior Court.

• Property: Takings, Intellectual Property (patents & copyrights), bankruptcy.

Constitutional law is also the basis for your study of the following, closely-related subjects:

Administrative Law [Articles I, II & III] which examines the relationship of the President, Congress, and the public to the administrative agencies that Congress has created within the Executive Branch. Application to current “hot” issues: 1) The extent to which the Secretary of Health & Human Services (HHS) has authority under the new health-care law to issue regulations that define individual obligations to purchase health insurance. 2) “Net Neutrality” and the claim that the Federal Communications Commission has jurisdiction to regulate the Internet;

Conflict of Laws (or, Private International Law) [Articles I, III, IV, and Amendments IX, X]. “Conflicts” examines the relationship between “Jurisdiction to Adjudicate” (i.e. the power to resolve individual cases) and “Jurisdiction to Prescribe” (i.e., the power to legislate). In general, Private International Law deals with the following question: Whose law will (or should) be applied to govern a contract or resolve a controversy pending before a court?

Criminal Procedure [Articles I, II, III, Amends. IV, V, VI, VII, VIII, and XIV]: The rules governing criminal trials in federal courts, military tribunals, and the constitutional limitations on state criminal procedure.

Federal Courts [Article III and Article I]: As you know from Civil Procedure, the jurisdiction of the federal courts is defined by the Constitution [Article III] and laws adopted by Congress pursuant to Articles I and III. Federal Courts provides an in-depth look at the types of cases that fall within the jurisdiction of Article III courts, examines the cases where Congress can provide for adjudication in an “Article I court” (e.g., a court martial or administrative law judge), and those that must be litigated in state courts. Application: What is the appropriate forum – if any – in which to try irregular combatants arrested on the battlefields of Afghanistan? Persons accused of war crimes? Under what circumstances may a state prisoner seek a federal writ of habeas corpus?

Civil Rights [Amendments Articles I §§9-10, IV, VI, and VI, cl. 3, I–X, XIII-XV, XIX, XXIII, XXIV, XXVI]. “Civil rights” courses cover a wide range of subjects in which


constitutional law limits the discretion of the state and federal governments to legislative, administer laws affecting persons and property, and adjudicate cases. The subject includes First Amendment issues (freedom of religion, speech and press, peaceable assembly, and petition for redress of grievance); property rights, nondiscrimination on the basis of religion (Art. VI §3), race (Amends. XIII-XV), sex (Amends. XIV, XIX), national origin (Amends. XIV, XV) or condition of servitude (XIII).

Jurisdiction and Judgments [Article I, Article III, Article IV, Amend. XIV]: Enforcement of judgments is a topic covered in several courses: Civil Procedure, Conflicts, Federal Courts, Family Law, Bankruptcy, Alternative Dispute Resolution, Arbitration (domestic and international).

Public International Law: Any course dealing with treaties, such as International Trade, Public International Law, International Antitrust, Admiralty, etc.). You have already seen public international law in operation in the discussion of personal jurisdiction in the line of cases that stretches from International Shoe v. Washington through Asahi Metals to Burnham v. Superior Court.

B. Common Criticisms of the Course

Certain criticisms of the basic course in constitutional law are common. The most common are: Constitutional law is too abstract! (Only if you focus on rules.) There is too much reading! (True. No way around that. Please see below.) There is not enough time to absorb all that reading! (The key is to learn to read effectively.

This is a skill. You will get a lot of practice this semester.) I have no idea what the professor is talking about! (It takes a while for most of us to

understand that “framing the question” is the single most important skill in constitutional law. If you are confused, it is because you are trying to understand how to answer a question, and hope that you can do so by simply applying a black letter rule. Your confusion will (in most instances) evaporate if you focus on the question itself. What is the question? Why is it an important question? How did the Court (or the professor) derive it from the constitution and relevant statutes? In sum: If you don’t know what we are doing, or why, you need to ask more questions!)

We don’t learn enough “black-letter law”! How will I ever be prepared to take the bar? (You will learn plenty of “black letter law”, but you will inevitably get a “C” if you don’t show me that you can use it!)

Eliminating these common criticisms is my job, but I cannot do that without your help. This means that you need to tell me – early and often, when you feel that you do not understand what we are doing, or why we are doing it. You should feel free to raise any criticism in class or privately with me, or simply to raise your hand and say: “I have no idea what you are talking about, or why it’s important!” Others have done so, and all of us benefit when you do just that!

Let us examine briefly the main criticisms:

Too much reading & not enough time. Constitutional law requires that you acquire an enormous amount of raw knowledge of “black letter” law, but you cannot stop there. A very nice discussion of the black letter law applicable to a problem is a guaranteed “C”. A working


knowledge of constitutional law also requires that you understand how that to convert “black letter law” into the skills that constitutional lawyers and judges use to analyze cases, present evidence, and resolve controversies.

So, we begin with a frank acknowledgement that it is not possible to cover more than a fraction of the material in a one-semester, five-credit course that meets (in our case) four (4) days per week. Unless and until the faculty (in its wisdom) decides to split our current five-credit, one semester course into two parts, and assigns enough credit hours to teach it effectively, you will be at a disadvantage unless you continue your studies in some of the upper division electives.

Given the current situation, there is only one way to deal with the mass of material contained in the introductory class: increase the number of classes per week. As a five-credit class, this course should really meet in five (5) one hour sessions (5x per week). In order to lessen the reading load per class, and to increase your exposure to “repetitions” (a bit like going to the gym), we will meet 4x per week. Some other sections will be meeting either two or three times per week.

Too abstract: Students often complain that constitutional law is “too abstract.” I felt that way myself when I took the course as a 2L. I did not feel that I really understood the material until I had to use it on a daily basis. So let’s consider for a moment what lawyers actually do.

C. What do Constitutional Lawyers Do?

1. Unbundling Legal Services

In a fascinating article entitled Unbundling of Legal Services and the Family Lawyer4, Professor Forrest S. Mosten observed that “…lawyers generally offer a full service package of discrete tasks that encompass traditional legal representation.” The list of “discrete tasks” that appears below is taken from Professor Mosten’s article, but I have freely adapted his list for use in the constitutional law context. With these modifications, it is fair to say that “the [constitutional] lawyer implicitly or explicitly undertakes the following services on behalf of a client”:

(1) Gathering facts: This is the function of an initial interview or some other means by which the facts of the case are provided to the lawyer for analysis.

(2) Making an initial determination (characterization) of the issues so that relevant statutes and constitutional provisions can be identified and researched.

(3) Formulating a series of questions based on each characterization. (4) Advising the client concerning the direction of your preliminary research. (5) Seeking additional facts from your client(s). (6) Formulating a discovery plan for each characterization in light of the facts and law uncovered to

date. (7) Discovering facts of the opposing party, (8) Researching impact that the factual record will have on your ability to claim that the law

supports your client’s position. (9) Drafting correspondence, opinion letters, documents, legislation, legislative testimony. (10) Negotiating policy disputes, and (only if necessary)

4 Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 FAM. L.Q. 421, 422-423 (1994) (emphasis added).


(11) Representing the client in a trial court, and developing a factual record that supports your client’s assertions concerning the state of the law.

(12) Representing the client in an appellate court.

2. What Do Courts SayAbout Effective Client Service?

If there were any doubts about what constitutional lawyers actually do, please consider the following “template” published by the Supreme Judicial Court of Maine:

SUPREME JUDICIAL COURT OF MAINE

LIMITED REPRESENTATION AGREEMENT

(Used in conjunction with Rule 1.2 [of the Maine Rules of Professional Conduct], the following form shall be sufficient to satisfy the rule.

The authorization of this form shall not prevent the use of other forms consistent with this rule.)

To Be Executed in Duplicate

Date: _____, 20__ 1. The client, , retains the attorney, , to perform limited legal services in the following matter:

__________________ v. ___________________

2. The client seeks the following services from the attorney (indicate by writing "yes" or no): a. Legal advice: office visits, telephone calls, fax, mail, e-mail; b. Advice about availability of alternative means to resolving the dispute, including

mediation and arbitration; c. Evaluation of client self-diagnosis of the case and advising client about legal rights and

responsibilities; d. Guidance and procedural information for filing or serving documents; e. Review pleadings and other documents prepared by client; f. Suggest documents to be prepared; g. Draft pleadings, motions, and other documents; h. Factual investigation: contacting witnesses, public record searches, in-depth interview

of client; i. Assistance with computer support programs; j. Legal research and analysis; k. Evaluate settlement options; l. Discovery: interrogatories, depositions, requests for document production; m. Planning for negotiations; n. Planning for court appearances; o. Standby telephone assistance during negotiations or settlement conferences; p. Referring client to expert witnesses, special masters, or other counsel; q. Counseling client about an appeal; r. Procedural assistance with an appeal and assisting with substantive legal argument in

an appeal; s. Provide preventive planning and/or schedule legal check-ups: t. Other:


3. The client shall pay the attorney for those limited services as follows:

a. Hourly Fee: The current hourly fee charged by the attorney or the attorney's law firm for services under this agreement are as follows:

i. Attorney: ii. Associate: iii. Paralegal: iv. Law Clerk:

Unless a different fee arrangement is established in clause (b) of this paragraph, the hourly fee shall be payable at the time of the service. Time will be charged in increments of one-tenth of an hour, rounded off for each particular activity to the nearest one-tenth of an hour.

b. Payment from Deposit:

For a continuing consulting role, client will pay to attorney a deposit of $ ------------, to be received by attorney on or before , and to be applied against attorney fees and costs incurred by client. This amount will be deposited by attorney in attorney trust account. Client authorizes attorney to withdraw funds from the trust account to pay attorney fees and costs as they are incurred by client. The deposit is refundable. If, at the termination of services under this agreement, the total amount incurred by client for attorney fees and costs is less than the amount of the deposit, the difference will be refunded to client. Any balance due shall be paid within thirty days of the termination of services.

c. Costs:

Client shall pay attorney out-of-pocket costs incurred in connection with this agreement, including long distance telephone and fax costs, photocopy expense and postage. All costs payable to third parties in connection with client case, including filing fees, investigation fees, deposition fees, and the like shall be paid directly by client. Attorney shall not advance costs to third parties on client behalf.

4. The client understands that the attorney will exercise his or her best judgment while performing the limited legal services set out above, but also recognizes:

a. the attorney is not promising any particular outcome.

b. the attorney has not made any independent investigation of the facts and is relying entirely on the client limited disclosure of the facts given the duration of the limited services provided, and

c. the attorney has no further obligation to the client after completing the above described limited legal services unless and until both attorney and client enter into another written representation agreement.

5. If any dispute between client and attorney arises under this agreement concerning the payment of fees, the client and attorney shall submit the dispute for fee arbitration in accordance with Rule 9(e)-(k) of the Maine Bar Rules. This arbitration shall be binding upon both parties to this agreement.

WE HAVE EACH READ THE ABOVE AGREEMENT BEFORE SIGNING IT.


Signature of client Signature of attorney

Credits: Maine Supreme Judicial Court: http://www.courts.state.me.us/rules_forms_fees/rules/MRProfCondPLUS3-10.pdf (last accessed, January 3, 2011)

SUMMING UP

A. Grades

1. How to Get an “A”

An “A” paper is a pleasure to read. It is well-organized, integrates facts and law, and shows clearly how the presence or absence of facts will affect the analysis. An “A” paper will also make it clear that the absence of certain facts may also be relevant under the circumstances. I have posted “A” papers so that you can see them.

2. How to Get a “B”

A “B” paper has a very good grasp of the facts, discusses them fully, and provides the reader with a very good understanding of how the facts and law fit together. The main difference between the “A” and “B” will be the level of sophistication the student is able to demonstrate while performing an evaluation of the facts and leaw.

3. How to Get a “C”

“C” papers are also really easy to spot. These are exams that do a good job with the black-letter rules, but do not make much use of the facts. The “black letter law” is important, but you must also demonstrate that you know how to use the facts. A “D” paper gets even the rules wrong.

B. How to Prepare

`I can assure you from experience that constitutional law -- as experienced by clients and the lawyers who represent them – it is every bit as “concrete” as cases involving torts (i.e. breaches of duty), criminal law, or contract disputes. One of our goals this semester is to teach you how to serve your clients well. Let’s begin with the types of reasoning we will employ this semester.

“Lawyering” requires the use of three (3) distinct types of reasoning:

Inductive reasoning (“from the specific to the general”). The inductive reasoning process is the foundation of all “fact-focused” legal analyses. Examination of specific cases, facts, or observations permits us to construct an empirical dataset. We can then generate a hypothesis, formulate a theory, or speculate concerning the nature and character of a relationship.

Once a hypothesis is developed from known facts or observations, it is possible to reach (or test) the hypothesis about the “proper” outcome, but the conclusion does not necessarily follow from the premise. (i.e. There is no “necessary” logical relationship between a premise and a conclusion.) This means that even though a given premise might be true, it is possible to draw more than one conclusion (either true or false) from that premise.


For example: Dataset: “All the cars I have ever seen run on gasoline.” Hypothesis: “All cars run on gasoline.” Conclusion: (statement remains subject to proof or disproof)

Deductive reasoning: “Deductive reasoning" refers to the process of concluding that something must be true because it is a special case of a general principle that is known to be true. For example, if you know the general principle that the sum of the angles in any triangle is always 180 degrees, and you have a particular triangle in mind, you can then conclude that the sum of the angles in your triangle is 180 degrees.”5

Analytical reasoning: Analytical reasoning can also be described as the development and use of idealized models of the subjects under study. One of the best discussions of analytical reasoning I have seen is found on the web site of Earlham College6.

The ability to recognize patterns is a hallmark of nearly every aspect of human cognition. In the realm of human knowledge this characteristic is manifested as a process of generalization in which we form idealized models of the objects of our study. These abstract models, which suppress the detail that distinguishes individual instances of a class in favor of the properties that form its common structure, are what allow us to reason in the face of complexity.

Not surprisingly, then, the use of abstract models is a foundation of the analytic aspects of almost all areas of human knowledge. To a large degree, systematic knowledge in nearly every discipline is based on a body of abstract models; advances in these disciplines consist largely of extending existing models or constructing new ones. Experience both in working with abstract models and in understanding the process of abstraction is helpful in mastery of the theoretical aspects of every discipline and is critical for those who would work at the boundaries of our knowledge.

While courses in Abstract Reasoning are intended, in part, to assure that students develop skill in applying abstract models, they go beyond that. These courses turn the process of abstraction on itself. They explore the common properties of abstract models and of the processes used in building and applying them. They provide experience in building abstract models from a collection of instances. In study within their individual disciplines students learn specific sets of abstract models and learn to apply them to the objects under study. In Abstract Reasoning courses, they learn to abstract models from those objects.

5 University of Toronto Mathematics Network at: http://www.math.utoronto.ca/ mathnet/questionCorner/deductive.html (last visited January 3, 2007) 6 Earlham College Curriculum Guide, http://www.earlham.edu/curriculumguide/academics/analytical.html (last visited January 3, 2007)


A student who describes constitutional law as “abstract” therefore speaks correctly only in part: It is abstract only to the extent that one must become comfortable with the development and use of the analytical models that are just as much a part of the “black letter” of constitutional law as the outcomes of specific cases, such as Marbury v. Madison or Roe v. Wade.

In this course, we will not only learn the models the Court utilizes to analyze cases, we will also learn how to build models of constitutional analysis from the text and structure of the Constitution. Once we have learned the models, we will apply them to sets of facts having common characteristics. We will then examine the models we have learned to determine what, if anything, they have in common; how they can be improved, if at all; and examine the policy reasons for adopting one analytical model over another.

Student complaints that the course is “too abstract” rest – understandably – on the way the material is presented: i.e. case studies in which fact, law, analysis, and conclusions are presented in a mass of lengthy, and often confusing, judicial opinions.

The goal this semester is to make sense out of the process of constitutional reasoning from the first day.

Learning the “Black Letter” Law and Hoping to “Get by on the Bar” is Law Student Malpractice. Teaching only “Black Letter” Law in the Hope that it will help you “get by on the bar” is Educational Malpractice.

“Black letter law” is a dangerous concept, not only for first-year law students, but also for practicing lawyers. There are certainly “rules” in constitutional law, and you are expected to learn them, but a lawyer whose head is filled with the “black letter” of constitutional law without much training on how to use it effectively is a danger both to his or her clients and to the cause of justice.

A quick review of the case law in death penalty and habeas corpus cases will demonstrate just how often prisoners raise “ineffective assistance of counsel” claims as grounds for a new trial. Legal malpractice in civil cases raising constitutional issues is also quite common, but less obvious.

Lawyers who do not know how to present a case, how to develop relevant evidence, and how to construct constitutional arguments are, in a word, “dangerous.” Unless the judge knows exactly what he or she is doing, and is willing to hold the lawyers accountable (e.g., in one notable death penalty case, the lawyer slept during the proceedings), the clients simply lose. If the clients are private parties, they are simply out of luck. If the losing client is a government entity or is a private litigant who would be liable for the plaintiff’s attorney’s fees, they not only lose, they may also be forced to pay hundreds of thousands (or perhaps millions) of dollars in attorney fees and costs. Worse, badly litigated cases make bad law – and all of us pay for it.

There are different “levels” of knowledge.

… [D]ifferent levels of knowledge are significant because the learning or teaching required to achieve each level is different. To illustrate, if the teacher’s goal is to have the learner know the facts of the case, e.g., by teaching a paralegal to organize discovery documents, then those learning tools that aid in effective memorization will be sufficient. However, if the teacher’s goal is to have the learner apply the facts to the law and determine the strengths and weaknesses of those facts, e.g., to teach a jury how to determine if a reasonable doubt exists in a criminal prosecution, then the learning tools


that aid in memorization will be inadequate; the teacher must use additional learning tools that help the learner engage in analysis.7

INTEGRATING KNOWLEDGE, SKILLS, AND VALUES

Professor M. H. “Sam” Jacobson of Willamette University School of Law has correctly observed that

Because of the significant responsibilities associated with handling extraordinary amounts of information, lawyers, law professors, judges, and law students must be able to absorb, process, and apply this information efficiently. Few students study more hours than law students do, and few professionals work longer hours than lawyers, judges, and law professors do. Therefore, the learning and the teaching that members of the legal community do, day in and day out, must be done efficiently as well as effectively. (emphasis added)8

Particularly useful in this regard is Professor Jacobson’s discussion of “levels of knowledge,” in which she draws upon the typology of Dr. Benjamin Bloom9 to describe “three manageable levels”10 of knowledge:

1. “Memorization: The simplest level of knowledge is memorization; it includes the observation and recall of information.” In this course, memorization will be tested, by and large, through the use of multiple-choice, fill-in-the-blank, and true/false questions. The “facts” about history, the development of the law, and constitutional theory developed in David Currie’s book, The Constitution of the United States (U. Chicago Press, 2d ed. 2000) are simply that: facts to be learned and recalled. A well-informed student of constitutional law needs to know this information, even if it is not on the bar examination. Period.

2. “Comprehension and sorting: The next level of knowledge is comprehension and sorting. The process includes translating knowledge into a new context, ordering or grouping information, and inferring causes.” In this course, comprehension and sorting will be tested every day in class, in your written work on assigned problems, and on the final examination. We will do a series of “comprehension and sorting” exercises in the first week of class as we discuss the following issues: 1) how to read constitutional cases effectively; 2) how to group cases by reference to their facts; 3) looking for structural analogies; and 4) developing constitutional questions from simple fact patterns.

7 Jacobson, supra note 15 at 29-31 8 M.H. “Sam” Jacobson, Learning Styles and Lawyering: Using Learning Theory to Organize Thinking and Writing, 2 J. ASSOC. LEGAL WRITING DIRECTORS 27-73 (2004). Professor Jacobson’s article provides a useful discussion of the ways in which professors, students, and other legal professionals can utilize learning theory to make the time spent at work more productive.

9 A Committee of College and University Examiners, Taxonomy of Educational Objectives: The Classification of Educational Goals: Handbook I, Cognitive Domain (Benjamin S. Bloom ed., Longman 1956), quoted in Id., at 30 & n. 6. 10 Each of the levels described in the text is quoted directly from Professor Jacobson’s article. See Jacobson, supra note 15 at 29-31. Some modifications to her organization of the material have been made here, but the substance is as she originally presented it. Whenever possible, I have set off her words from mine through the use of appropriately placed quotation marks. All footnotes are omitted.


3. “Analysis: The most complex level of knowledge is analysis; it includes applying information to solve problems, seeing patterns, identifying and organizing component parts, synthesizing information from multiple sources, comparing ideas, and making choices based on reasoned argument.” Analysis is the most important skill you will learn in this course. Like riding a bike or learning any other skill, whether it is tennis, golf, or playing a musical instrument, there are basic steps in the analytical method that must be mastered and practiced. Some of you will find the process to be very easy – almost “intuitive”. Others will find it excruciatingly difficult (or “abstract”), but analysis is an essential component of law practice and there is no way – other than practice – to make the task of learning the core analytical methods of constitutional law any “easier.” It is hard work, that requires mastery of both “memorization and recall” (i.e. actually reading the cases and other materials you have been assigned) and “comprehension and sorting” (i.e. understanding how the cases relate to one another and to analogous cases that raise the same legal issues). This skill will be tested on a daily basis in class, as well as in any written work you do, including your outlines and final examination.

PREPARATION AND PARTICIPATION IN CLASS

There are three reasons to be prepared for class:

1) Because class participation is as close to real life “practice” in the courtroom as it gets outside of an actual trial practice or appellate advocacy class, it is your ethical obligation as a law student and as a future lawyer to be prepared to participate fully in the discussion.

2) Class participation not only builds skills in the persons participating in the exchanges between professor and student, it allows other students to “observe” the interaction and learn from it. I do not “lecture” in constitutional law unless there is a need to deliver a large amount of information necessary to frame (or “set up”) the problem to be analyzed.

3) Because class participation is essentially an “analytical skill-building” effort, you will be required to participate in the discussion even if you have not done the reading. It is not uncommon for the person (or persons) called upon to miss or fail to remember important facts or analogies, even if they have done the reading. Failing to remember is simply a “recall” problem, and failure to see the connection between and among cases assigned for class is a “comprehension and sorting” issue that can be remedied by going back over the material. Since analysis cannot be done without first having done the “recall” and “comprehension and sorting,” it is possible to have other students (who have read the material to do those steps) and to turn to the person who is otherwise unprepared and ask them to do the analysis. Is it painful? Yes indeed. Is it designed to embarrass you? No. It is simply preparation for the many, unanticipated situations in which a good lawyer will be forced to “think on his or her feet.”

TAKING NOTES EFFECTIVELY

Constitutional law, effectively taught, is an intensely interactive experience. Like any other “skill building” effort, the person who is “on the spot” answering questions, reciting the facts, or analyzing a problem appears to be the center of attention, while others watch – hoping that they will learn something (a “rule” perhaps?) from the interaction.

This is not how it works.


Constitutional lawyers take many different kinds of notes. For present purposes, we will limit ourselves to the most obvious settings in which notes are taken: i.e. in class.

Class is a bit like an oral argument. The professor plays the role of “judge” (some would say: judge, jury, and executioner, but that’s taking things a bit too seriously!) and the student plays the role of advocate. Many other students simply “tune out,” figuring that their time will come sooner or later, and that the time is best spent reading email, instant messaging with others in the class, or prepping for another class.

This is a big mistake. Taking notes in an interactive class may seem hard, but it is not difficult if you understand that constitutional lawyers engaged in an argument (or cross-examination) generally have time to focus either on

a) the questions asked by the professor (or judge) or

b) the answers given by the student (or advocate).

Until you get the hang of the process, your note-taking focus should be on (a): the questions asked by the professor.

Why is this so? The answer is easy. The “answers” to the question are in the book. They are called “majority and dissenting opinions. The “questions” tell you what factors (facts, law, or reasoning) the professor or judge thinks are important to the discussion or analysis. Thus, if all you have at the end of class is a list of questions asked, do not be disappointed.

The next step is to make sure you get them down in the order in which they were asked. Why? The ultimate goal of Constitutional Law 101 (this class) is to teach you the analytical

models that are commonly used in constitutional analysis. You will find them in decisions of the Supreme Court of the United States, State supreme courts, and high courts of other nations. The questions follow a pattern virtually identical to an “order of operations” in mathematics, and are an integral part of the analytical model. Once you learn the order of operations, the pattern (or “analytical model”) starts to become second nature.

This is why learning constitutional analysis is somewhat like learning to ride a bike, swing a golf club or tennis racquet, or swim the butterfly. Anyone can do it, but it takes hours of practice and good coaching to learn proper form. This class gives you the basics. Advanced classes provide in-depth coaching and experience in more sophisticated analysis.

CLOSING THOUGHTS: WHAT CONSTITUTIONAL LAW IS NOT

Some of you have taken Constitutional Law as a political science or history class. Aside from the case names, you will find that this course has very little (if anything) in common with those courses. Thus, while there may be a temporary advantage in having taken the course once in another discipline, it is just that: “temporary.”

Students who have not taken Constitutional Law should not be intimidated. The skills are relatively easy to master – especially for those with good backgrounds in logic (math, science, and philosophy) and those who know how to write well. (English majors do very well.)

In sum: Constitutional Law will give your brain a very good workout. By the time the end of the semester rolls around, you will not only be prepared to take the exam, you also be able to match wits with nearly anyone you meet on constitutional law issues in “current affairs,” and (hopefully) to


smoke out a weak or unsupported argument almost as soon as it leaves the lips (or pen) of its advocate.

Reasoning Skills Required for “Constitutional Lawyering”

Inductive reasoning (“from the specific to the general”).

The inductive reasoning process is the foundation of all “fact-focused” legal analyses. Examination of specific cases, facts, or observations permits us to construct an empirical dataset. We can then generate a hypothesis, formulate a theory, or speculate concerning the nature and character of a relationship.

Once a hypothesis is developed from known facts or observations, it is possible to reach (or test) a the hypothesis about the “proper” outcome, but the conclusion does not necessarily follow from the premise. (i.e. There is no “necessary” logical relationship between a premise and a conclusion.) This means that even though a given premise might be true, it is possible to draw more than one conclusion (either true or false) from that premise. For example:

Dataset: “All the cars I have ever seen run on gasoline.” Hypothesis: “All cars run on gasoline.” Testing, Research, or Discovery: Is it possible to have a car that does not run on gasoline? Fact Finding: Cars can also run on natural gas, electricity, steam, and other fuels. Conclusion: The hypothesis is false.

Deductive Reasoning: (“from a general rule to a specific outcome”)

“Deductive reasoning" refers to the process of concluding that something must be true because it is a special case of a general principle that is known to be true. For example, if you know the general principle that the sum of the angles in any triangle is always 180 degrees, and you have a particular triangle in mind, you can then conclude that the sum of the angles in your triangle is 180 degrees.”11

General Principle: Each person has a unique (or nearly unique) DNA profile. Testing, Research, or Discovery: A DNA sample found at the scene matches X’s profile. Conclusion: One can be almost certain that the DNA belongs to X.

Analytical reasoning (“developing, using, and comparing analytical models”)

Analytical reasoning is a combination of both inductive and deductive reasoning, and can be described as the development and use of idealized, “analytical models” of the subjects under study.12 (Please read the footnote!)

11 University of Toronto Mathematics Network at: http://www.math.utoronto.ca/ mathnet/questionCorner/deductive.html (last visited January 3, 2007) 12 One of the best discussions of analytical reasoning I have seen is found on the website of Earlham College.



Example: Using Analytical Reasoning Skills to Derive the Principles of Separation of Powers and Federalism from the Text of the Constitution

An example is the best way to illustrate the relationship between inductive, deductive, and analytical reasoning. This example poses the following question:

How do we deduce the principles (or “rules”) of separation of powers and federalism from the text of the Constitution?

Unlike several state constitutions13, the text of the United States Constitution does not contain a specific reference to separation of powers. We must therefore derive (or “deduce”) the doctrine from the text and structure of the document.



13 See, e.g., California Const., art. III §3 (“The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”); Michigan Const., art. III §2 (“The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”); Virginia Const., art. I §5 (“That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct; and that the members thereof may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by regular elections, in which all or any part of the former members shall be again eligible, or ineligible, as the laws may direct.”)


Step 1: The Inductive Aspect of Analytical Reasoning

The process for doing so begins with a simple, “inductive” reasoning exercise. It proceeds as follows:

List the parts of the federal government that exercise powers granted by the Constitution. We will refer to this “listing” process as “doing the Grants & Limits” – or “finding the parts of the Constitution that are ‘arguably relevant’ to the case at hand.”

Art. I §1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Art. II §1, cl. 1: “The executive Power shall be vested in a President of the United States of America.”

Art. III §1, cl. 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

This list of laws is, for present purposes, the “facts” of our problem. The contents of these laws provide the empirical data that we will need to take the next step in our analysis.

Step 2: The Deductive Component of Analytical Reasoning in Constitutional Law

We now need to add the “deductive” component to our analysis.

As you recall from the definition of deductive reasoning set forth above:

“Deductive reasoning” refers to the process of concluding that something must be true because it is a special case of a general principle that is known to be true.

We must now look for the “general principle[s] that [are] known to be true”, and test our “observed facts” (“empirical data”) against those principles.

Searching for Principles: Start with the Text of the Constitution

We begin the process of searching for the “general principles” embedded in the text of the Constitution. We do so by applying standard principles of statutory and constitutional construction. For present purposes, we will focus on three of these canons:

• The “black letter law” of the Constitution is … the text of the Constitution! Unless and until the Constitution is changed by an amendment, the “black letter” rules embodied in the text do not change.

o Article VI makes it very clear that it is the Constitution – not what the Court says about it – that is the “supreme law of the land.”

The rules announced in cases, are, by contrast, examples of how the rules have been applied by the Justices hearing a specific set of facts arising at a specific point in time.

Though the Court considers itself bound by precedent (stare decisis), the Constitution itself says nothing about precedent. Article III §2 provides that


“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; …” (emphasis added), but it says nothing about the impact of the decisions in such cases on the rights, obligations or status of other persons whose cases come before the federal or state courts.

If the Court concludes that the rule announced in a specific case is unconstitutional (e.g., Swift v. Tyson overruled by Erie v. Tompkins), Article VI requires that the case be overruled.

• Every word in the document is to be given its ordinary meaning. Where there are doubts or ambiguities, the initial reference is to context. (We will discuss other approaches later.)

• Because the Constitution refers to itself as “this Constitution”, its provisions are to be interpreted as an organic whole.

Applying the Principles drawn from the Text to the Federal Government

1. General Principle: The meaning of “all” means “all of it” – everything. Facts: Art. I, §1 provides that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Conclusion: The legislative power (whatever it is) belongs to Congress alone.

2. General Principle: The phrase “shall be vested” means “shall be owned by” or “shall belong to”. Facts: Art. II §1, cl. 1 provides that “The executive Power shall be vested in a President of the United States of America.” Conclusion: The executive power (whatever it is) belongs to “a President”, who alone may exercise it.

3. General Principle: The phrase “shall be vested” means “shall be owned by” or “shall belong to”. Facts: Art. III §1, cl. 1 provides that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Conclusion: The judicial power that extends to the “cases and controversies” listed in Article III §2 (however they are defined in practice) belongs to the Supreme Court and the inferior courts alone.

4. General Principle: The Constitution requires separation of the federal legislative, executive, and judicial powers. Read together, each of the rules utilized to generate the principle of separation of powers is now a coherent set of rules that can be understood by lawyers and litigants, and applied by judges.

The “general principle” of “separation of [federal] powers” is thus “implied” in the text, and adds a “structural” dimension to the black letter law of the Constitution.

Federalism: Separation of Powers Between and Among States and the Federal Government


We will use the same inductive process to find out how the States fit into the plan of government.

Since, the States derive their powers from their respective state constitutions, a thorough constitutional analysis would require us to examine what powers the states have. Since we are dealing with a question “in the abstract” (i.e., one that does not arise under a specific set of facts), we will simply make a note that the first step in the inductive process described above is to consult the relevant state constitution or laws on the subject.

Now we’re ready to start over:

List all references to state power in the federal constitution that are arguably relevant to the question before us: i.e., How does the Constitution separate political powers from one another? Since there are many references to the States in the Constitution, and this exercise is used by way of example, the list that follows below is incomplete. (In order to practice this skill, make a complete list.)

As you read through the partial list that appears below, you will note that some of the provisions (1) assume (or “reference”) the existence of state law on a specific subject; others (2) “borrow” state law for federal purposes; and others will (3) expressly limit the power of the states or the federal government to act with respect to specific subject matter.

We begin “at the beginning” – with the Preamble:

WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America.” [inference: this is a constitution for “the United States”, not each state.]

Art. I §2, cl. 1: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” [inference: State law, either existing or to be adopted, define the “Qualifications requisite for Electors”, and adopts those qualifications as federal law.]

Art I §2, cl. 2: “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” [inference: state law defines the characteristics of “an Inhabitant of that State.”]

Art. I §10: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” [inference: States are competent to regulate contracts or the payment of debts, but not to pass any law in conflict with this provision.]

Art. II §1 cl.2: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States,


shall be appointed an Elector.” [Rule: State legislatures are authorized by Art. II to define the manner of appointment of Presidential Electors, and the States exercise a federal function when they so appoint those electors. Presidential Electors are state officials, who exercise a federal function.]

Art. III §2, cl. 1: “Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. [inference: The judicial power does not extend to “cases in law and equity arising under” state law.]

Art. IV §1: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” [inferences: There is a concept of “state citizenship”, the content of which is defined by state law. The “privileges and immunities” of a citizen of a sister state do not follow him or her to another, but the visiting citizens of a sister state must be accorded the same privileges and immunities as the citizens of the state in which they are visiting.]

Art. IV §3: “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” [Rule: States have a right to territorial integrity.]

Art. VI: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” [Inference: State courts can, and will, hear federal constitutional claims.]

Amend. IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” [Rule: Federal courts’ interpretive powers are limited to inferences necessarily drawn from the text and structure of the federal constitution, and must respect the power of the States to define and protect rights that are not enumerated in the federal Constitution. Inference: State citizenship status, state constitutions, laws and political processes are the source documents in which to find “other [rights] retained by the people” of the several states. ]

Amend. X: “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.” [Rule: Subject to their own state constitutions, the states may exercise any and all powers “not delegated to the United States by the Constitution, nor prohibited by it to the


States”, nor may the federal government act in a manner that intrudes upon this “reservation” of state power.”]

Deductive Phase – Developing a Concept of Interstate and Intergovernmental Federalism:

5. General Principle: Where the Constitution allocates power in a certain way, that allocation governs (i.e., “preempts”) any contrary rule. Facts: Art. II, §2 explicitly confers the power to appoint Presidential electors “in such Manner as the Legislature thereof may direct …” Conclusion: The state legislature has the final word on how (or if) Presidential electors are to be appointed.

i. General Principle: Art. IV §3 provides that “no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” Facts: Statehood activists have long argued that Congress can admit D.C. as a state. D.C. was formed from land ceded to the federal government by the State of Maryland and the Commonwealth of Virginia. The federal government “retroceded” the land then designated as “Alexandria County” (now Arlington County, the City of Alexandria, and parts of Fairfax County) on September 7, 1846. It still controls the land ceded by the State of Maryland.


Conclusion: There are several constitutional questions that will arise if Congress attempts to admit D.C. as a state: 1) Must the People of the District of Columbia consent? 2) Must the State of Maryland consent?; 3) Was the retrocession proclamation signed by President Polk authorized by the Act of Retrocession passed by Congress? [see: http://www. nikolasschillercom/blog/index.php/archives/ 2009/02/19/2393/ (last accessed 01/04/2009)]; 4) If not, must the Commonwealth of Virginia also consent?

You will note that the prior example ended with a set of questions, not answers. This will be the result in most of the problems we consider this semester.

Step 3: Analytical Reasoning “in action”: Developing a Model of Constitutional Reasoning

Example: Justice Jackson’s 3-part Analytical Model for Analyzing Separation of Powers and Federalism Cases

We will now examine what you have learned about how to deduce a constitutional principle from the text and structure of the Constitution by looking at one of the most important – and useful – analytical models ever developed by a Supreme Court Justice.

The model appears in the concurring opinion of the late Justice Robert Jackson, who is famous for many things, not least of which are that he was 1) President Franklin Roosevelt’s Attorney General; 2) Chief US Prosecutor during the Nuremburg War Crimes Tribunal after World War II, and 3) the author of the now-famous statement that “Constitutional litigation is case is power politics by other means.”

The case in which Justice Jackson’s analytical model appears is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). The facts can be summarized as follows:

In an attempt to head off a strike in the steel industry that he feared would cripple the ability of the United States to wage the Korean War, President Harry Truman ordered the Secretary of War to take control of the steel mills. The seizure had the effect of placing the mils and their employees under the direct control and supervision of the military.

Led by the Youngstown Sheet & Tube Company, the steel companies and others sued, alleging that the President’s actions were unauthorized by statute and unconstitutional.

The Court held that the President’s actions were unconstitutional, but the case is remembered, not so much for its result, but for the analytical model contained in Justice Jackson’s concurring opinion. One of the notable things about Justice Jackson’s model is that, while it did not attract the five votes necessary to make it a part of the majority opinion, it is now widely accepted as the best, and most easily understood, model for organizing a separation of powers analysis.


JUSTICE JACKSON’S THREE-PART ANALYSIS

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, *636 and in these only, may he be said (for what it may **871 be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government *637 as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling *638 the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Because it is an analytical model built from the rules themselves, it functions like a rule, and will usually produce an accurate outcome if the person using it understands that

1. All cases depend on their facts. If the facts put into the model are incomplete, the result is likely to be wrong. Thus, one must understand that the facts are equally – if not more – important than the law itself. Why? Because the facts tell you what law is relevant.

2. Because it is an analytical model of the separation of powers doctrine – rather than a rule – it can also be used to “model” other separation of powers cases: i.e.,

a. Substitute “Congress” for “the President” and modify the model to account for the nature and extent of Congressional power, and you have a powerful analytical tool for examining whether Congress has exceeded its power.

b. Substitute “the Court” for “the President” and modify the model to account for the nature and extent of the Judicial power of the United States, and you have a powerful analytical tool for examining whether a federal court has exceeded its power.

c. Substitute a “State” for “the President” and modify the model to account for the nature and extent of state powers and the limits the Constitution imposes on them, and you have a powerful analytical tool for examining whether a state has exceeded its power.


One of your primary goals this semester will be to understand the YST model, to explain – in writing – how it and why it was constructed, how to modify it for use in a case involving powers other than the executive and war powers, and how to use it to solve “real” problems.


Step 4: Recapping the Analytical Reasoning Process: A Review of Analytical Reasoning

Before we go on and begin to look at how we use analytical models to solve real constitutional problems, we will look, once again, at the definition of the concept that appears in footnote 12, above. It is worth quoting in full:




In this course, we will not only learn the models the Court utilizes to analyze cases, we will also learn how to build models of constitutional analysis from the text and structure of the Constitution. Once we have learned the models, we will apply them to sets of facts having common characteristics. We will then examine the models we have learned to determine what, if anything, they have in common; how they can be improved, if at all; and examine the policy reasons for adopting one analytical model over another.

Student complaints that the course is “too abstract” rest – understandably – on the way the material is presented: i.e. case studies in which fact, law, analysis, and conclusions are presented in a mass of lengthy, and often confusing, judicial opinions.

The goal this semester is to make sense out of the process of constitutional reasoning from the first day.

The practical importance of the analytical process can be explained as follows:

1. Virtually every constitutional case involves an argument that there is either “no power” or that the power has been exercised in a way that is forbidden.


2. There are two for a in which one can argue that a state has committed a constitutional violation.

a. A claim that a state has violated its own constitution must be filed and litigated in state court under the state constitution and bill of rights because a case “arising under” state law is not within the Article III jurisdiction of the federal courts. Thus, if the state courts hold that the state has violated its own constitution, there can be no appeal of the state law questions to the Supreme Court of the United States.

b. A federal claim that a state has violated the United States Constitution can be raised in either a state or a federal court.

3. A lawyer contemplating a federal constitutional challenge to a state law, executive or administrative action, or judicial decree, has some important strategic thinking to do before choosing the forum in which to file. Strategic considerations regarding forum selection will be discussed briefly in this course. The constitutional aspects of forum selection are the focus of a course in Federal Courts.

The “bottom line”: State constitutional law is just as “real” as federal constitutional law, and may (on occasion) be “better.”

A student who describes constitutional law as “abstract” therefore speaks correctly only in part: It is abstract only to the extent that one must become comfortable with the development and use of the analytical models that are a part of the “black letter” of constitutional law. Though the rules announced in specific cases, such as Marbury v. Madison or Roe v. Wade, are often described as “black letter law”, the reality is that they are “law” in only two respects:

1. The rationale of the Court is the “rule of the case”. It binds the parties, and resolves the controversy between them. All arguments thus “merge” in the judgment, and that judgment precludes any further claims arising out of the same facts between those parties. See Res judicata, issue and claim preclusion.

2. The Court’s reasoning provides the rule for future cases only insofar as it continues to command the assent of five Justices. Thus, the Court can affirm a prior case, overrule it explicitly, treat it as if it had been overruled (while never using those words), or simply ignore it.

If there is doubt about the meaning of these principles, there are several places we can look for guidance:

• We know that the Constitution was written (and adopted) as a replacement for the Articles of Confederation. Thus, we can compare way in which the


Constitution modifies the Articles of Confederation in order to “check” our understanding of the principles that should guide our analysis.

• We can look to the contemporaneous debates: i.e., to documents like The Federalist and the “Anti-Federalist Papers” to see not only what the founding generation had in mind with respect to the division of authority, but also what they feared might happen if the separation of powers “ordained and established” in the Constitution were not maintained.

By examining the rules – and their relationship to one another – we can deduce the following principles:

1: “Separation of Powers” means that powers given exclusively to one branch of the federal government, are not shared with the others. 2: “Federalism” (i.e. the division of authority between the federal and state governments, and among the states) means that

a) the states have authority that is derived from their own, respective constitutions; b) the federal government has no authority (jurisdiction) to exercise any part of state authority; and c) states will sometimes have laws that are different from those of their sister states, and with federal law.

.

Learning the “Black Letter” Law and Hoping to “Get by on the Bar” is Law Student Malpractice. Teaching only “Black Letter” Law in the Hope that it will help you “get by on the bar” is Educational Malpractice.

“Black letter law” is a dangerous concept, not only for first-year law students, but also for practicing lawyers. There are certainly “rules” in constitutional law, and you are expected to learn them, but a lawyer whose head is filled with what he or she “thinks” is the “black letter” of constitutional law – without much training on how to use it effectively – is a danger both to his or her clients and to the cause of justice.

A quick review of the case law in death penalty and habeas corpus cases will demonstrate just how often prisoners raise “ineffective assistance of counsel” claims as grounds for a new trial. Legal malpractice in civil cases raising constitutional issues is also quite common, but less obvious.

Lawyers who do not know how to present a case, how to develop relevant evidence, and how to construct constitutional arguments are, in a word, “dangerous.” Unless the judge knows exactly what he or she is doing, and is willing to hold the lawyers accountable (e.g., in one notable death penalty case, the lawyer slept during the proceedings), the clients simply lose. If the clients are private parties, they are simply out of luck. If the losing client is a government entity or is a private


litigant who would be liable for the plaintiff’s attorney’s fees, they not only lose, they may also be forced to pay hundreds of thousands (or perhaps millions) of dollars in attorney fees and costs. Worse, badly litigated cases make bad law – and all of us pay for it.

There are different “levels” of knowledge.

… [D]ifferent levels of knowledge are significant because the learning or teaching required to achieve each level is different. To illustrate, if the teacher’s goal is to have the learner know the facts of the case, e.g., by teaching a paralegal to organize discovery documents, then those learning tools that aid in effective memorization will be sufficient. However, if the teacher’s goal is to have the learner apply the facts to the law and determine the strengths and weaknesses of those facts, e.g., to teach a jury how to determine if a reasonable doubt exists in a criminal prosecution, then the learning tools that aid in memorization will be inadequate; the teacher must use additional learning tools that help the learner engage in analysis.14

Integrating Knowledge, Skills, and Values

Professor M. H. “Sam” Jacobson of Willamette University School of Law has correctly observed that

Because of the significant responsibilities associated with handling extraordinary amounts of information, lawyers, law professors, judges, and law students must be able to absorb, process, and apply this information efficiently. Few students study more hours than law students do, and few professionals work longer hours than lawyers, judges, and law professors do. Therefore, the learning and the teaching that members of the legal community do, day in and day out, must be done efficiently as well as effectively. (emphasis added)15

Particularly useful in this regard is Professor Jacobson’s discussion of “levels of knowledge,” in which she draws upon the typology of Dr. Benjamin Bloom16 to describe “three manageable levels”17 of knowledge:

4. “Memorization: The simplest level of knowledge is memorization; it includes the observation and recall of information.” In this course, memorization will be tested, by and large, through the use of multiple-choice, fill-in-the-blank, and true/false questions. The “facts” about history, the development of the law, and constitutional theory developed in the

14 Jacobson, supra note 15 at 29-31 15 M.H. “Sam” Jacobson, Learning Styles and Lawyering: Using Learning Theory to Organize Thinking and Writing, 2 J. ASSOC. LEGAL WRITING DIRECTORS 27-73 (2004). Professor Jacobson’s article provides a useful discussion of the ways in which professors, students, and other legal professionals can utilize learning theory to make the time spent at work more productive.

16 A Committee of College and University Examiners, Taxonomy of Educational Objectives: The Classification of Educational Goals: Handbook I, Cognitive Domain (Benjamin S. Bloom ed., Longman 1956), quoted in Id., at 30 & n. 6. 17 Each of the levels described in the text is quoted directly from Professor Jacobson’s article. See Jacobson, supra note 15 at 29-31. Some modifications to her organization of the material have been made here, but the substance is as she originally presented it. Whenever possible, I have set off her words from mine through the use of appropriately placed quotation marks. All footnotes are omitted.


Barnett textbook and short treatises like David Currie’s book, The Constitution of the United States (U. Chicago Press, 2d ed. 2000) provide a wealth of facts to be learned and recalled. A well-informed student of constitutional law needs to know this information, even if it is not on the bar examination. Period.

5. “Comprehension and sorting: The next level of knowledge is comprehension and sorting; it includes translating knowledge into a new context, ordering or grouping information, and inferring causes.” In this course, comprehension and sorting will be tested every day in class, in your written work on assigned problems, and on the final examination. We will do a series of “comprehension and sorting” exercises in the first week of class as we discuss the following issues: 1) how to read constitutional cases effectively; 2) how to group cases by reference to their facts; 3) looking for structural analogies; and 4) developing constitutional questions from simple fact patterns.

6. “Analysis: The most complex level of knowledge is analysis; it includes applying information to solve problems, seeing patterns, identifying and organizing component parts, synthesizing information from multiple sources, comparing ideas, and making choices based on reasoned argument.” Analysis is the most important skill you will learn in this course. Like riding a bike or learning any other skill, whether it is tennis, golf, or playing a musical instrument, there are basic steps in the analytical method that must be mastered and practiced. Some of you will find that it is very easy. Others will find it excruciatingly difficult (or “abstract”), but analysis is an essential component of law practice and there is no way – other than practice – to make the task of learning the core analytical methods of constitutional law any “easier.” It is hard work, that requires mastery of both “memorization and recall” (i.e. actually reading the cases and other materials you have been assigned) and “comprehension and sorting” (i.e. understanding how the cases relate to one another and to analogous cases that raise the same legal issues). This skill will be tested on a daily basis in class, as well as in any written work you do, including your outlines and final examination.

Preparation and Participation in Class

There are three reasons to be prepared for class:

4) Because class participation is as close to real life “practice” in the courtroom as it gets outside of an actual trial practice or appellate advocacy class, it is your ethical obligation as a law student and as a future lawyer to be prepared to participate fully in the discussion.

5) Class participation not only builds skills in the persons participating in the exchanges between professor and student, it allows other students to “observe” the interaction and learn from it. I do not “lecture” in constitutional law unless there is a need to deliver a large amount of information necessary to frame (or “set up”) the problem to be analyzed.

6) Because class participation is essentially an “analytical skill-building” effort, you will be required to participate in the discussion even if you have not done the reading. It is not uncommon for the person (or persons) called upon to miss or fail to remember important facts or analogies, even if they have done the reading. Failing to remember is simply a “recall” problem, and failure to see the connection between and among cases assigned for class is a “comprehension and sorting” issue that can be remedied by going back over the material. Since analysis cannot be done without first having done the “recall” and


“comprehension and sorting,” it is possible to have other students (who have read the material to do those steps) and to turn to the person who is otherwise unprepared and ask them to do the analysis. Is it painful? Yes indeed. Is it designed to embarrass you? No. It is simply preparation for the many, unanticipated situations in which a good lawyer will be forced to “think on his or her feet.”

Taking Notes Effectively

Constitutional law, effectively taught, is an intensely interactive experience. Like any other “skill building” effort, the person who is “on the spot” answering questions, reciting the facts, or analyzing a problem appears to be the center of attention, while others watch – hoping that they will learn something (a “rule” perhaps?) from the interaction.

This is not how it works.

Constitutional lawyers take many different kinds of notes. For present purposes, we will limit ourselves to the most obvious settings in which notes are taken: i.e. in class.

Class is a bit like an oral argument. The professor plays the role of “judge” (some would say: judge, jury, and executioner, but that’s taking things a bit too seriously!) and the student plays the role of advocate. Many other students simply “tune out,” figuring that their time will come sooner or later, and that the time is best spent reading email, instant messaging with others in the class, or prepping for another class.

This is a big mistake. Taking notes in an interactive class may seem hard, but it is not difficult if you understand that constitutional lawyers engaged in an argument (or cross-examination) generally have time to focus either on

a) the questions asked by the professor (or judge) or

b) the answers given by the student (or advocate).

Until you get the hang of it, your focus should be on (a): the questions asked by the professor.

Why is this so? The answer is easy. The “answers” to the question are in the book. The “questions” tell you what factors (facts, law, or reasoning) the professor or judge thinks is important to the discussion or analysis. Thus, if all you have at the end of class is a list of questions asked, do not be disappointed. The next step is to make sure you get them down in the order in which they were asked.

Why? The ultimate goal of Constitutional Law 101 (this class) is to teach you the analytical models that are commonly used in constitutional analysis. You will find them in decisions of the Supreme Court of the United States, State supreme courts, and high courts of other nations. The questions follow a pattern virtually identical to an “order of operations” in mathematics, and are an integral part of the analytical model. Once you learn the order of operations, the pattern (or “analytical model”) starts to become second nature.

This is why learning constitutional analysis is somewhat like learning to ride a bike, swing a golf club or tennis racquet, or swim the butterfly. Anyone can do it, but it takes hours of practice and good coaching to learn proper form. This class gives you the basics. Advanced classes provide in-depth coaching and experience in more sophisticated analysis.


Closing Thoughts: What Constitutional Law is NOT

Some of you have taken Constitutional Law as a political science or history class. Aside from the case names, you will find that this course has very little (if anything) in common with those courses. Thus, while there may be a temporary advantage in having taken the course once in another discipline, it is just that: “temporary.”

Students who have not taken Constitutional Law should not be intimidated. The skills are relatively easy to master – especially for those with good backgrounds in logic (math, science, and philosophy) and those who know how to write well. (English majors do very well.)

In sum: Constitutional Law will give your brain a very good workout. By the time the end of the semester rolls around, you will not only be prepared to take the exam, you also be able to match wits with nearly anyone you meet on constitutional law issues in “current affairs,” and (hopefully) to smoke out a weak or unsupported argument almost as soon as it leaves the lips (or pen) of its advocate.

See you in class.


PROBLEM SUPPLEMENT

Instructions for All Problems

1) As you formulate questions and answers based on your reading of the Constitution and any other material provided below, keep in mind the following admonition from the Farnsworth and Young contracts textbook, adapted for our purposes

A useful technique in describing disputes about language is to state the issue in terms of the [constitutional] language, much as an issue arising under a statute is stated in terms of the statutory language. It should be framed so that it can be answered "yes" or "no," as a court ordinarily must do. It should be framed so that it contains the controlling language of the [constitution], with such emphasis as is helpful. And it should be framed so that it recognizes that different meanings are attached to words in different contexts.

a) The first step, therefore, is to identify the language of the Constitution that is arguably relevant to the issue(s) at hand – just as you would identify the language of a contract that is relevant to the issues that are in dispute between or among the parties.

b) The second step is to formulate the constitutional “Question Presented.” For examples of “questions presented” in cases currently pending in the Supreme Court, see: http://www.in.gov/pdc/general/supct.html

2) Unless the question otherwise provides, you are to use only the United States Constitution as the source for formulating both the "question presented" by the facts, and a proposed "answer" to that question.

3) Please bear in mind that, at the initial stage – where the problem is formulated – the criterion for deciding what language is "relevant" to the issues to be decided is one of arguable relevance. This means: "relevant in any way to the issues involved in the dispute." The process of interpretation is utilized to decide whether a particular provision is actually relevant (i.e. that it provides guidance) or is controlling (i.e. that it determines the issue).

4) For purposes of constitutional law 101 (this course), “Questions Presented” are phrased in “binary” terms, for each grant-limit “pair” involved in the case: i.e.

The grant of express or implied power asserted as the basis for the action challenged

v.

The limit the constitution imposes on that specific power.


PROBLEM 1: PLEADING & PROOF OF A CLAIM TWOMBLY & IQBAL “REVISITED”

The goal of this exercise is to show you the connection between fact and law in constitutional adjudication. Please reread the following:

• F. R. Civ. P. 8 and F. R. Crim. P. 12 • Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) • Ascroft v. Iqbal, 551 U.S. --- (2009)

o Complaint (available in “Course Materials”) o Petition for Certiorari (available in “Course Materials”)

After having reread the cases, please do the following: 1. Identify the paragraphs of the complaint in which charges are made against Attorney

General Ashcroft. 2. Read them carefully. What was “conclusory” about them? 3. Read the Petition for Certiorari, and answer the following questions:

a. What is the defense of “qualified immunity”? b. Why, as a constitutional matter, is the Attorney General entitled to claim that

defense? c. Why does the availability of the “qualified immunity” defense require more

specific pleading under F.R. Civ. P. 8? d. What additional facts would have made the charges against the Attorney General

them more specific?


PROBLEM 2:

“PERMISSION TO ADJOURN?” INTERPRETING THE CONSTITUTION IN THE LEGISLATURE

Constitutional Provision:

Article III §25 of the Maryland Constitution provides:

SEC. 25. Neither House shall, without the consent of the other, adjourn for more than three days, at any one time, nor adjourn to any other place, than that in which the House shall be sitting, without the concurrent vote of two-thirds of the members present.

Facts you have

According to the December 14, 2007 online edition of the Baltimore Sun18: “Although the Senate sent a memorandum to the House relaying its intention to return after six days, the House did not take a vote on the matter. The plaintiffs argue that invalidates everything the legislature adopted – including higher sales and corporate income tax rates.”

In another Baltimore Sun story, which appeared on January 5, 2008, the following additional facts appear:

The Republican lawmakers claim that Democratic leaders in the General Assembly acted improperly by allowing the Senate to take a five-day break during November's special legislative session. The state constitution requires either body to seek the other's approval if it takes more than three days off. "I don't know how you consent to something you didn't know about," said Irwin R. Kramer, the attorney representing the five GOP lawmakers and a local businessman in the lawsuit. The attorney general's office argued that sufficient consent was given verbally by House and Senate leaders Nov. 12 and that a letter from the Senate requesting permission to adjourn until Nov. 15 was mistakenly dated Nov. 9. "There was absolutely nothing improper here," said Austin Schlick, head of the attorney general's civil litigation division. State lawmakers were aware of the extended break, he said, adding that GOP House members did object during the session and were rebuffed by the House of Delegates' parliamentarian. Schlick also argued the alleged technical error does not justify the budgetary crisis that would ensue if the tax increases were voided. Kramer countered that lawmakers begin work again Wednesday and could re-enact the tax increases properly.

What other facts do you need? If any?

18 (Andrew A. Green, “GOP Legislators Sue to Invalidate Special Session”, http://www.baltimoresun.com/news/local/bal-md.suit14dec14,0,7794121.story (last accessed 1/6/2008).


PROBLEM 3: “SO, CAN I RUN?”

INTERPRETING THE CONSTITUTION IN THE LAW OFFICE

Katy Candidate is a political “wunderkind.” She bears the family name of one of Ohio’s most respected governors, Perry Neal Candidate, and appears to have inherited the family's political savvy as well. She was elected to the Ohio state legislature at age 20, and her rise through the political ranks has been meteoric. She was elected to Congress from her home district at age 25, and had a spectacular “freshman” term. Re-elected, she is now 27 and raring to go. Her goal is to be a Senator as quickly as possible. Given her family background, she has the cash to run a substantial campaign as well.

Giving advice to your client based on the text of the constitution alone.

You are counsel for the Democratic Party. Katy arrives in your office and says “I want to run for United States Senator in the next election cycle, but the Chairman tells me that the Party will not support me because I won’t be 30 until nearly six months after I would be scheduled to take office. He says he might reconsider if you give him an opinion that I can run and be seated on time.”

Anticipating the Advice Opposing Counsel will give to his/her client, based on the text of the constitution alone.

You are counsel to the Republican Party: You hear word of these goings on through the political grapevine. What do you do?

Role Reversal: The Need to Understand the Needs of the Opposition and the Role of Opposing Counsel

You are counsel to the State’s Republican Governor who is "thinking of" making a run for the U.S. Senate himself: Is this good or bad news for your client? Consider this question in light of the following statute:

Ohio Rev. Code § 3521.02 VACANCY IN THE SENATE OF THE UNITED STATES

When a vacancy occurs in the representation of this state in the senate of the United States by death, resignation, or otherwise, the vacancy shall be filled forthwith by appointment by the governor who may appoint some suitable person having the necessary qualifications for senator. The appointee shall hold office until the fifteenth day of December succeeding the next regular state election that occurs more than one hundred eighty days after the vacancy happens. At that next regular state election, a special election to fill the vacancy shall be held, provided, that when the unexpired term ends within one year immediately following the date of such regular state election, an election to fill the unexpired term shall not be held, and the appointment shall be for the unexpired term. The special election shall be governed in all respects by the laws controlling regular state elections for such office. Candidates to be voted for at the special election shall be nominated in the same manner as is provided for the nomination of candidates at regular state elections.


At least one hundred eighty days prior to the date of such regular state election, the governor shall issue a writ directing that a special election be held to fill such vacancy as provided in this section. The writ shall be directed to the secretary of state and a copy of the writ sent by mail to the board of elections of each county in the state which shall give notice of the time and place of holding such special election in the same manner and at the same time provided in section 3501.03 of the Revised Code for giving similar notice for regular elections.

Bureaucrats! You can’t live with ‘em, but you can’t operate a state government without ‘em either.

Now what?

You are Katy's attorney: The Ohio Secretary of State, the official responsible for deciding ballot access questions, has been quoted in one of the local political blogs as saying that he will refuse to certify Katy's candidacy should she decide to throw her hat in the ring “because I will not throw good money away on an egomaniac who needs to grow up and learn that she is not the center for the universe. Somebody needs to teach that spoiled brat a lesson!”

What are your next steps?

1. What State laws govern eligibility for the ballot? See generally Ohio Rev. Code, Title 35

2. How, specifically, does Katy get registered? See Ohio Rev. Code §3501.38 3. How might Ohio. Rev. Code §3599.36 affect your thinking about a lawsuit

challenging the Secretary of State’s decision? 4. Do you have any grounds whatsoever to file suit alleging that her refusal to certify

Katy's candidacy is unconstitutional. [Note: Keep in mind that pleadings in federal cases are subject to the good faith pleading requirements of F.R. Civ. P. 11.]

Questions to check your understanding [i.e. to see if you "get the point" of this exercise]: 1. Have you prepared a written statement (or list, as appropriate) of the "Question(s) Presented"

(i.e. one posed in constitutional terms) for each of the questions posed above? If not, go back and write them! You will not learn this material by taking shortcuts – and your memory is not good enough to keep such details in your head.

2. Have you proposed a written answer, phrased in constitutional terms, to each of the questions posed above? If so, can you see how the phrasing of the question affects the way you will formulate a proposed answer? If you have not developed a proposed answer and written it down, write one!

3. Can you explain why you determined that certain provisions of the Constitution were relevant to the issue of Katie's eligibility? Please be prepared to give a reason as to each in class.


PROBLEM 4: SHAPING THE CHARACTER OF THE JUDICIARY

WHEN DOES A JUDGE BECOME A JUDGE? INTERPRETING THE CONSTITUTION IN THE WHITE HOUSE

Tina Sanchez is a leading candidate for the next available opening on the United States Court of Appeals for the Second Circuit. A well-respected litigator, a former state prosecutor, and the author of several books on professional ethics for defense lawyers, Ms. Sanchez has broad-based support in the professional community. She is an active member of many community organizations as well, including the Evangelical Faith Temple, and serves as Chair of its Faith-Based Community Services Outreach Committee.

Question 1: What Powers does the President Actually Have?

It is your first day as assistant counsel in the Office of Presidential Personnel. You are asked to review the files of the candidates who have made the final "cut" and have passed their F.B.I. background checks. You open Ms. Sanchez' file and find a detailed background memorandum discussing the racial, religious, ethnic, and political background of all current members of the court. You learn that one of the key reasons why Ms. Sanchez is a leading candidate is that she is Mexican-American, Evangelical Christian, and made quite a name for herself when she accused the New York Attorney General of a "faith-based witch-hunt" in a high- profile, but largely fruitless, investigation of the accounting practices and professionalism of several pro-life Crisis Pregnancy Centers affiliated with her church. She served as counsel to these clinics.

These revelations make you uncomfortable, both politically and constitutionally, especially the extensive discussion the dearth of Hispanic Evangelicals on the court. Should you raise any constitutional issues with the Chief Counsel? If so, what would they be?

Question 2: What power does the Senate really have?

Senator Max Foghorn is the ranking minority member on the Senate Judiciary Committee. He has made it clear in public statements that he will mount a filibuster against any candidate who does not support the Supreme Court’s decision legalizing abortion (Roe v. Wade). He has also been particularly critical of “the Religious Right,” and questions whether their views on matters of public policy are consistent with “American values.”

You have been asked by the Chief Counsel of the Senate Judiciary Committee to prepare a briefing paper on the limits, if any, the Constitution imposes on Senator Foghorn’s publicly stated determination to oppose Ms. Sanchez.


The Case of the Indicted Nominee A Question to check your understanding.

The President has nominated, and the Senate confirmed, Mr. Joseph Doakes as the new United States District Judge for the Eastern District of Oklahoma. On the day before his swearing-in ceremony, Mr. Doakes is implicated in a money-laundering scheme. The Daily Oklahoman reports that an indictment is “pending”, and that the State Banking Commissioner has launched an investigation. The President’s Chief of Staff calls Mr. Doakes and tells him: “Sorry, Joe. The President is grateful for your support, and would have liked to have seen you on the bench, but, given your legal problems, he’s decided not to permit you to take the oath of office. Perhaps we can find something else for you after you clear up your legal problems, but a judgeship is definitely out. Sorry.”

Question 1: The Powers of the President

Is Doakes “entitled” to his post? Why?

Question 2: What is the relevance of Article VI?

Is there any way around the President’s decision? See 5 U.S.C. §§2901-2903, 3331, and 2906.

Question 3: To Whom Does the Nominee Complain?

Can Mr. Doakes sue to obtain his appointment? If so, in what court?


PROBLEM 5 THE NATIONAL LEGISLATIVE AND TAXING POWERS:

CAN THEY REALLY FORCE ME TO BUY HEALTH INSURANCE? INTERPRETING THE CONSTITUTION DURING A PUBLIC DEBATE

In light of the current debate over health care, we need to consider some of the constitutional questions that have been raised concerning the recently-enacted Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010).

Because the Act is so voluminous, we will focus only on its “centerpiece” -- the “individual mandate” that has been codified as 26 U.S.C. §5000A

§ 5000A. Requirement to maintain minimum essential coverage

(a) Requirement to maintain minimum essential coverage.--An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.

(b) Shared responsibility payment.--

(1) In general.--If a taxpayer who is an applicable individual, or an applicable individual for whom the taxpayer is liable under paragraph (3), fails to meet the requirement of subsection (a) for 1 or more months, then, except as provided in subsection (e), there is hereby imposed on the taxpayer a penalty with respect to such failures in the amount determined under subsection (c).

(2) Inclusion with return.--Any penalty imposed by this section with respect to any month shall be included with a taxpayer's return under chapter 1 for the taxable year which includes such month.

(3) Payment of penalty.--If an individual with respect to whom a penalty is imposed by this section for any month--

(A) is a dependent (as defined in section 152) of another taxpayer for the other taxpayer's taxable year including such month, such other taxpayer shall be liable for such penalty, or

(B) files a joint return for the taxable year including such month, such individual and the spouse of such individual shall be jointly liable for such penalty.

(c) Amount of penalty.--

(1) In general.--The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to failures described in subsection (b)(1) shall be equal to the lesser of--

(A) the sum of the monthly penalty amounts determined under paragraph (2) for months in the taxable year during which 1 or more such failures occurred, or


(B) an amount equal to the national average premium for qualified health plans which have a bronze level of coverage, provide coverage for the applicable family size involved, and are offered through Exchanges for plan years beginning in the calendar year with or within which the taxable year ends.

(2) Monthly penalty amounts.--For purposes of paragraph (1)(A), the monthly penalty amount with respect to any taxpayer for any month during which any failure described in subsection (b)(1) occurred is an amount equal to 1/12 of the greater of the following amounts:

(A) Flat dollar amount.--An amount equal to the lesser of--

(i) the sum of the applicable dollar amounts for all individuals with respect to whom such failure occurred during such month, or

(ii) 300 percent of the applicable dollar amount (determined without regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends.

(B) Percentage of income.--An amount equal to the following percentage of the excess of the taxpayer's household income for the taxable year over the amount of gross income specified in section 6012(a)(1) with respect to the taxpayer for the taxable year:

(i) 1.0 percent for taxable years beginning in 2014.

(ii) 2.0 percent for taxable years beginning in 2015.

(iii) 2.5 percent for taxable years beginning after 2015.

(3) Applicable dollar amount.--For purposes of paragraph (1)--

(A) In general.--Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $695.

(B) Phase in.--The applicable dollar amount is $95 for 2014 and $325 for 2015.

(C) Special rule for individuals under age 18.--If an applicable individual has not attained the age of 18 as of the beginning of a month, the applicable dollar amount with respect to such individual for the month shall be equal to one-half of the applicable dollar amount for the calendar year in which the month occurs.

(D) Indexing of amount.--In the case of any calendar year beginning after 2016, the applicable dollar amount shall be equal to $695, increased by an amount equal to--

(i) $695, multiplied by

(ii) the cost-of-living adjustment determined under section 1(f)(3) for the calendar year, determined by substituting “calendar year 2015” for “calendar year 1992” in subparagraph (B) thereof.


If the amount of any increase under clause (i) is not a multiple of $50, such increase shall be rounded to the next lowest multiple of $50.

(4) Terms relating to income and families.--For purposes of this section--

(A) Family size.--The family size involved with respect to any taxpayer shall be equal to the number of individuals for whom the taxpayer is allowed a deduction under section 151 (relating to allowance of deduction for personal exemptions) for the taxable year.

(B) Household income.--The term “household income” means, with respect to any taxpayer for any taxable year, an amount equal to the sum of--

(i) the modified adjusted gross income of the taxpayer, plus

(ii) the aggregate modified adjusted gross incomes of all other individuals who--

(I) were taken into account in determining the taxpayer's family size under paragraph (1), and

(II) were required to file a return of tax imposed by section 1 for the taxable year.

(C) Modified adjusted gross income.--The term “modified adjusted gross income” means adjusted gross income increased by--

(i) any amount excluded from gross income under section 911, and

(ii) any amount of interest received or accrued by the taxpayer during the taxable year which is exempt from tax.

[(D) Repealed. Pub.L. 111-152, Title I, § 1002(b)(1), Mar. 30, 2010, 124 Stat. 1032]

(d) Applicable individual.--For purposes of this section--

(1) In general.--The term “applicable individual” means, with respect to any month, an individual other than an individual described in paragraph (2), (3), or (4).

(2) Religious exemptions.--

(A) Religious conscience exemption.--Such term shall not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) of the Patient Protection and Affordable Care Act which certifies that such individual is--

(i) a member of a recognized religious sect or division thereof which is described in section 1402(g)(1), and

(ii) an adherent of established tenets or teachings of such sect or division as described in such section.


(B) Health care sharing ministry.--

(i) In general.--Such term shall not include any individual for any month if such individual is a member of a health care sharing ministry for the month.

(ii) Health care sharing ministry.--The term “health care sharing ministry” means an organization--

(I) which is described in section 501(c)(3) and is exempt from taxation under section 501(a),

(II) members of which share a common set of ethical or religious beliefs and share medical expenses among members in accordance with those beliefs and without regard to the State in which a member resides or is employed,

(III) members of which retain membership even after they develop a medical condition,

(IV) which (or a predecessor of which) has been in existence at all times since December 31, 1999, and medical expenses of its members have been shared continuously and without interruption since at least December 31, 1999, and

(V) which conducts an annual audit which is performed by an independent certified public accounting firm in accordance with generally accepted accounting principles and which is made available to the public upon request.

(3) Individuals not lawfully present.--Such term shall not include an individual for any month if for the month the individual is not a citizen or national of the United States or an alien lawfully present in the United States.

(4) Incarcerated individuals.--Such term shall not include an individual for any month if for the month the individual is incarcerated, other than incarceration pending the disposition of charges.

(e) Exemptions.--No penalty shall be imposed under subsection (a) with respect to--

(1) Individuals who cannot afford coverage.--

(A) In general.--Any applicable individual for any month if the applicable individual's required contribution (determined on an annual basis) for coverage for the month exceeds 8 percent of such individual's household income for the taxable year described in section 1412(b)(1)(B) of the Patient Protection and Affordable Care Act. For purposes of applying this subparagraph, the taxpayer's household income shall be increased by any exclusion from gross income for any portion of the required contribution made through a salary reduction arrangement.

(B) Required contribution.--For purposes of this paragraph, the term “required contribution” means--


(i) in the case of an individual eligible to purchase minimum essential coverage consisting of coverage through an eligible-employer-sponsored plan, the portion of the annual premium which would be paid by the individual (without regard to whether paid through salary reduction or otherwise) for self-only coverage, or

(ii) in the case of an individual eligible only to purchase minimum essential coverage described in subsection (f)(1)(C), the annual premium for the lowest cost bronze plan available in the individual market through the Exchange in the State in the rating area in which the individual resides (without regard to whether the individual purchased a qualified health plan through the Exchange), reduced by the amount of the credit allowable under section 36B for the taxable year (determined as if the individual was covered by a qualified health plan offered through the Exchange for the entire taxable year).

(C) Special rules for individuals related to employees.--For purposes of subparagraph (B)(i), if an applicable individual is eligible for minimum essential coverage through an employer by reason of a relationship to an employee, the determination under subparagraph (A) shall be made by reference to required contribution of the employee.

(D) Indexing.--In the case of plan years beginning in any calendar year after 2014, subparagraph (A) shall be applied by substituting for ‘8 percent’ the percentage the Secretary of Health and Human Services determines reflects the excess of the rate of premium growth between the preceding calendar year and 2013 over the rate of income growth for such period.

(2) Taxpayers with income below filing threshold.--Any applicable individual for any month during a calendar year if the individual's household income for the taxable year described in section 1412(b)(1)(B) of the Patient Protection and Affordable Care Act is less than the amount of gross income specified in section 6012(a)(1) with respect to the taxpayer.

(3) Members of Indian tribes.--Any applicable individual for any month during which the individual is a member of an Indian tribe (as defined in section 45A(c)(6)).

(4) Months during short coverage gaps.--

(A) In general.--Any month the last day of which occurred during a period in which the applicable individual was not covered by minimum essential coverage for a continuous period of less than 3 months.

(B) Special rules.--For purposes of applying this paragraph--

(i) the length of a continuous period shall be determined without regard to the calendar years in which months in such period occur,

(ii) if a continuous period is greater than the period allowed under subparagraph (A), no exception shall be provided under this paragraph for any month in the period, and


(iii) if there is more than 1 continuous period described in subparagraph (A) covering months in a calendar year, the exception provided by this paragraph shall only apply to months in the first of such periods.

The Secretary shall prescribe rules for the collection of the penalty imposed by this section in cases where continuous periods include months in more than 1 taxable year.

(5) Hardships.--Any applicable individual who for any month is determined by the Secretary of Health and Human Services under section 1311(d)(4)(H) to have suffered a hardship with respect to the capability to obtain coverage under a qualified health plan.

(f) Minimum essential coverage.--For purposes of this section--

(1) In general.--The term “minimum essential coverage” means any of the following:

(A) Government sponsored programs.--Coverage under--

(i) the Medicare program under part A of title XVIII of the Social Security Act,

(ii) the Medicaid program under title XIX of the Social Security Act,

(iii) the CHIP program under title XXI of the Social Security Act,

(iv) medical coverage under chapter 55 of title 10, United States Code, including coverage under the TRICARE program;

(v) a health care program under chapter 17 or 18 of title 38, United States Code, as determined by the Secretary of Veterans Affairs, in coordination with the Secretary of Health and Human Services and the Secretary,

(vi) a health plan under section 2504(e) of title 22, United States Code (relating to Peace Corps volunteers); or

(vii) the Nonappropriated Fund Health Benefits Program of the Department of Defense, established under section 349 of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337; 10 U.S.C. 1587 note).

(B) Employer-sponsored plan.--Coverage under an eligible employer-sponsored plan.

(C) Plans in the individual market.--Coverage under a health plan offered in the individual market within a State.

(D) Grandfathered health plan.--Coverage under a grandfathered health plan.

(E) Other coverage.--Such other health benefits coverage, such as a State health benefits risk pool, as the Secretary of Health and Human Services, in coordination with the Secretary, recognizes for purposes of this subsection.


(2) Eligible employer-sponsored plan.--The term “eligible employer-sponsored plan” means, with respect to any employee, a group health plan or group health insurance coverage offered by an employer to the employee which is--

(A) a governmental plan (within the meaning of section 2791(d)(8) of the Public Health Service Act), or

(B) any other plan or coverage offered in the small or large group market within a State.

Such term shall include a grandfathered health plan described in paragraph (1)(D) offered in a group market.

(3) Excepted benefits not treated as minimum essential coverage.--The term “minimum essential coverage” shall not include health insurance coverage which consists of coverage of excepted benefits--

(A) described in paragraph (1) of subsection (c) of section 2791 of the Public Health Service Act; or

(B) described in paragraph (2), (3), or (4) of such subsection if the benefits are provided under a separate policy, certificate, or contract of insurance.

(4) Individuals residing outside United States or residents of territories.--Any applicable individual shall be treated as having minimum essential coverage for any month--

(A) if such month occurs during any period described in subparagraph (A) or (B) of section 911(d)(1) which is applicable to the individual, or

(B) if such individual is a bona fide resident of any possession of the United States (as determined under section 937(a)) for such month.

(5) Insurance-related terms.--Any term used in this section which is also used in title I of the Patient Protection and Affordable Care Act shall have the same meaning as when used in such title.

(g) Administration and procedure.--

(1) In general.--The penalty provided by this section shall be paid upon notice and demand by the Secretary, and except as provided in paragraph (2), shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68.

(2) Special rules.--Notwithstanding any other provision of law--

(A) Waiver of criminal penalties.--In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.

(B) Limitations on liens and levies.--The Secretary shall not--


(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or

(ii) levy on any such property with respect to such failure.


PROBLEM 6 Chisolm v. Georgia

CAN THE SUPREME COURT OF THE UNITED STATES COMPEL A STATE TO APPEAR, ENTER A

JUDGMENT AGAINST IT, AND EXECUTE ON ITS PROPERTY IF IT REFUSES TO PAY?

SUPREME COURT OF THE UNITED STATES

CHISHOLM, EX'R. V. GEORGIA 2 U.S. 419, 2 Dall. 419 (February Term, 1793)

**1 This action was instituted in August Term, 1792. On the 11th of July, 1792, the Marshall for the district of Georgia made the following return: ‘Executed as within commanded, that is to say, served a copy thereof on his excellency Edward Telsair, Esq. Governor of the State of Georgia, and one other copy on Thomas P. Carnes, Esq. the Attorney General of said State.‘

‘Robert Forsyth, Marshall.‘

Upon which Mr. Randolph, the Attorney General of the United States, as counsel for the plaintiff, made the following motion on the 11th of August, 1792. ‘That unless the State of Georgia, shall, after reasonable previous notice of this motion, cause an appearance to be entered, in behalf of the said State, on the fourth day of the next Term, or shall then show cause to the contrary, judgment shall be entered against the said State, and a writ of enquiry of damages shall be awarded.‘ But to avoid every appearance of precipitancy, and to give the State time to deliberate on the measures she ought to adopt, on motion of Mr. Randolph, it was ordered by the Court, that the consideration of this motion should be postponed to the present Term. And now Ingersoll, and Dallas, presented to the Court a written remonstrance and protestation on behalf of the State, against the exercise of jurisdiction in the cause; but, in consequence of positive instructions, they declined taking any part in arguing the question. The Attorney General, therefore, proceeded as follows.

Randolph, for the plaintiff. I did not want the remonstrance of Georgia, to satisfy me, that the motion, which I have made

is unpopular. Before that remonstrance was read, I had learnt from the acts of another State, whose will must be always dear to me, that she too condemned it. On ordinary occasions, these dignified opinions might influence me greatly; but on *420 this, which brings into question a constitutional right, supported by my own conviction, to surrender it would in me be official persidy.

It has been expressed, as the pleasure of the Court, that the motion should be discussed, under the four following forms:

1st. Can the State of Georgia, being one of the United States of America, be made a party-defendant in any case, in the Supreme Court of the United States, at the suit of a private citizen, even although he himself is, and his testator was, a citizen of the State of South Carolina?

2nd. If the State of Georgia can be made a party defendant in certain cases, does an action of assumpsit lie against her?


3rd. Is the service of the summons upon the Governor and Attorney General of the State of Georgia, a competent service?

4th. By what process ought the appearance of the State of Georgia to be enforced?

--------------------

The Judiciary Act of 1789 provides, in relevant part:

SEC. 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

SEC. 14. And be it further enacted, That all the before-mentioned courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.——Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.

SEC. 15. And be it further enacted, That all the said courts of the United States, shall have power in the trial of actions at law, on motion and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery; and if a plaintiff shall fail to comply with such order, to produce books or writings, it shall be lawful for the courts respectively, on motion, to give the like judgment for the defendant as in cases of


nonsuit; and if a defendant shall fail to comply with such order, to produce books or writings, it shall be lawful for the courts respectively on motion as aforesaid, to give judgment against him or her by default.


PROBLEM 7 EXPRESS LIMITS VERSUS “FUNDAMENTAL PRINCIPLES”

Calder v. Bull, 3 U.S. 386 (1798)

The Legislature of Connecticut, on the 2nd Thursday of May 1795, passed a resolution or law, which, for the reasons assigned, set aside a decree of the court of Probate for Harford, on the 21st of March 1793, which decree disapproved of the will of Normand Morrison (the grandson) made the 21st of August 1779, and refused to record the said will; and granted a new hearing by the said Court of Probate, with liberty of appeal therefrom, in six months.

A new hearing was had, in virtue of this resolution, or law, before the said Court of Probate, who, on the 27th of July 1795, approved the said will, and ordered it to be recorded. At August 1795, appeal was then had to the superior court at Harford, who at February term 1796, affirmed the decree of the Court of Probate.

Appeal was had to the Supreme Court of errors of Connecticut, who, in June 1796, adjudged, that there were no errors. More than 18 months elapsed from the decree of the Court of Probate (on the 1st of March 1793) and thereby Caleb Bull and wife were barred of all right *387 of appeal, by a statute of Connecticut. There was no law of that State whereby a new hearing, or trial, before the said Court of Probate might be obtained. Calder and wife claim the premises in question, in right of his wife, as heiress of N. Morrison, physician; Bull and wife claim under the will of N. Morrison, the grandson.

The Council for the Plaintiffs in error, contend, that the said resolution or law of the Legislature of Connecticut, granting a new hearing, in the above case, is an ex post facto law, prohibited by the Constitution of the United States; that any law of the Federal government, or of any of the State governments, contrary to the Constitution of the United States, is void; and that this court possesses the power to declare such law void.


PROBLEM 8 FEDERALISM & RESERVED POWERS

ARIZONA TACKLES THE PROBLEM OF ILLEGAL IMMIGRATION

Understanding the Arizona Statute “in Context”

Office of Special Counsel

Memorandum To: Law Clerks

From: Wiley N. Smart, Special Counsel to the Attorney General

Date: April 30, 2010

Re: Pre-Litigation Analysis of Chapter 113, S.B. 1070 – The “"Support Our Law Enforcement and Safe Neighborhoods Act"

As you know from the news, our Legislature adopted, and Governor Jan Brewer signed, the “Support Our Law Enforcement and Safe Neighborhoods Act”. The Governor and the Attorney General have made it clear that they expect (and welcome) the opportunity to defend the work of Arizona’s elected officials. This means that we must anticipate a variety of lawsuits from those opposing the legislation.

We must, however, be cognizant of the potential cost of the litigation. In a recent, unreported case, Dream Palace v. Maricopa County, 342 Fed.Appx. 342 (9th Cir. 2009), the Ninth Circuit upheld a District Court award of attorney fees under 42 U.S.C. §1988 ranging from $110/hour for junior attorneys to $350/hour for lead counsel, so it will be important for this office to resolve the cases as quickly as possible.

In sum: We need to be prepared.

Both President Obama and Attorney General Holder have alleged that the Act is unconstitutional. So too have many organizations, commentators, Members of Congress and Senators, and officials from several states, both elected and appointed. In addition, President Felipe de Jesus Calderon Hinojosa of Mexico issued the following statement:

The criminalization of the migration phenomenon, far from contributing to the cooperation and collaboration between Mexico and the US, represents an obstacle for the solution of common problems in the border region ….”


In an interesting twist on the usual “travel advisory” for U.S. citizens, the Mexican Ministry of Foreign Affairs issued the following travel advisory. Source: Embassy of Mexico at: Error! Hyperlink reference not valid. (accessed April 30, 2010).

The Foreign Ministry Issues a Travel Alert for Mexicans Visiting, Residing or Studying in Arizona Tuesday April 27th | México, D.F.

Following the adoption in the state of Arizona, United States, of the “Support Our Law Enforcement and Safe Neighborhoods Act” (SB1070), the Ministry of Foreign Affairs of Mexico makes the following recommendations to Mexican nationals who have scheduled trips to that entity, or that reside or study in its territory:

1. In recent days there have been public demonstrations and protests in different cities against the decision of the Governor of the state to sign the law. The events have always been peaceful. It is important to act with prudence and respect local laws.

2. The law will take effect 90 days after the end of the current session of the State Legislature. Thus, at this moment the legal framework remains unchanged. However, as was clear during the legislative process, there is a negative political environment for migrant communities and for all Mexican visitors.

3. Under the new law, foreigners who do not carry the immigration documents issued to them when entering the United States may be arrested and sent to immigration detention centers. Carrying the available documentation, even before the law comes into force, will help avoid needless confrontations. As long no clear criteria are defined for when, where and who the authorities will inspect, it must be assumed that every Mexican citizen may be harassed and questioned without further cause at any time.

4. The new law will also make it illegal to hire or be hired from a motor vehicle stopped on a roadway or highway, regardless of the immigration status of those involved. While these rules are also not yet in force, extreme caution should be used.

5. Mexican nationals who are in the United States, regardless of their immigration status, have inalienable human rights and can resort to protection mechanisms under international law, U.S. federal law, and Arizona state law. The functions of the five Mexican consulates in Arizona (Phoenix, Tucson, Yuma, Nogales and Douglas) include providing legal advice to all Mexicans who consider they have been subjected to any abuse by the authorities. Nongovernmental organizations have also announced their intention to support those in need.

6. Mexicans in Arizona requiring consular assistance may use the toll-free consular protection phone number, available 24 hours a day, seven days a week: 1-877-6326-6785 (1-877-63CONSUL). The consular network in Arizona has a permanent telephone service, 24 hours a day, 7 days a week.

7. Mexican Consulates in Arizona: [The list of contact information is omitted. There are consulates in Phoenix, Tucson, Nogales, Douglas, and Yuma]

Tuesday, 27 April 2010

The Arizona Revised Statutes (ARS) contain a number of provisions relating to aliens resident in Arizona. Thus in addition to the Arizona House Bill 1070 (reproduced below), it is a good idea to look at the other statutes.

An Exercise in “Active” Statutory Interpretation Bill Text Significant words or concepts Questions

-----------------------------

Not relevant Not relevant

House Engrossed Senate Bill -----------------------------

State of Arizona Senate

Forty-ninth Legislature Second Regular Session

2010 -----------------------------

CHAPTER 113 ----------------------------- SENATE BILL 1070

-----------------------------

AN ACT

AMENDING TITLE 11, CHAPTER 7, ARIZONA REVISED STATUTES, BY ADDING ARTICLE 8; AMENDING TITLE 13, CHAPTER 15, ARIZONA REVISED STATUTES, BY ADDING SECTION 13-1509; AMENDING SECTION 13-2319, ARIZONA REVISED STATUTES; AMENDING TITLE 13, CHAPTER 29, ARIZONA REVISED STATUTES, BY ADDING SECTIONS 13-2928 AND 13-2929; AMENDING SECTIONS 13-3883, 23-212, 23-212.01, 23-214 AND 28-3511, ARIZONA REVISED STATUTES; AMENDING TITLE 41, CHAPTER 12,

Not relevant Not relevant


Bill Text Significant words or concepts Questions ARTICLE 2, ARIZONA REVISED STATUTES, BY ADDING SECTION 41-1724; RELATING TO UNLAWFULLY PRESENT ALIENS.

Be it enacted by the Legislature of the State of Arizona:

Section 1. Intent

The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

1. “Legislature finds” 1. Is a legislative “finding” significant? If so, how?

2. “compelling interest” 2. “Compelling interest”

a. What is a “compelling interest?

b. What makes a “compelling interest” so “compelling”?

3. “cooperative enforcement” 3. What does “cooperative enforcement” mean? a. Cooperation with whom? The federal government? Mexico? Other states? b. Is “cooperative enforcement” authorized? c. By whom? d. Under what circumstances?

4. federal immigration laws 4. What is the relevance of federal immigration law? a. Are states authorized to enforce federal immigration law? b. Are states required to enforce federal immigration law? c. Are state prohibited from enforcing federal immigration law?

5. attrition through enforcement 5. What does “attrition through enforcement” mean? a. Enforcement of what?


Bill Text Significant words or concepts Questions

6. [is] the public policy of all state and local government agencies in Arizona.

6. What is the significance of the Arizona legislature’s decision to make state policy uniform across all state agencies, and at all levels of government? a. What problem(s) is the Legislature trying to solve? b. Does the Arizona Legislature have the authority to set policy that binds the

Executive and Judicial branches of the state government? c. Does the Arizona Legislature have the authority to set policy that binds local

governments (e.g., counties, cities, towns, villages)

7. The provisions of this act are intended to work together

7. What is the significance of the statement that “the provisions of this act are intended to work together”? a. What instructions are being given to the Executive? b. What instructions are being given to the Arizona courts? c. Does this mean that if one part of the statute is held unconstitutional, the entire

statute falls too? (i.e., are the provisions of this law “severable”)

8. to discourage and deter the unlawful entry

8. What power does Arizona have to “discourage and deter the unlawful entry … of aliens?

9. and presence of aliens 9. What power does Arizona have to “discourage and deter the unlawful … presence of aliens?

10. and economic activity by persons unlawfully present in the United States.

10. What power does Arizona have to “discourage and deter … economic activity by persons unlawfully present in the United States.?

Sec. 2. Title 11, chapter 7, Arizona Revised Statutes, is amended by adding aritcle 8, to read:



ARTICLE 8. ENFORCEMENT OF IMMIGRATION LAWS

11-1051. Cooperation and assistance in enforcement of immigration laws; indemnification

A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY LIMIT OR RESTRICT THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW.

11-1051 A.1 “limit or restrict”

11-1051 A. 2 “less than the full extent permitted by federal law”

11-1051.A.1: Has any Arizona “official or agency or a county, city, town or other political subdivision” done anything to “limit or restrict” enforcement of federal immigration laws? If so, how?

11-1051.A.2 What is the “full extent” to which the federal government will allow state and local government enforce federal immigration laws?

B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR A LAW ENFORCEMENT AGENCY OF THIS STATE OR A LAW ENFORCEMENT OFFICIAL OR A LAW ENFORCEMENT AGENCY OF A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON,

11-1051.B.1 “lawful contact”

11-1051.B.2 “law enforcement official … or a law enforcement agency of a county, city, town or other political subdivision of this state”

11-1051.B.3 “reasonable suspicion”

11-1051.B.4: “reasonable suspicion exists that the person is an alien who is unlawfully present in the United States”

11-1051.B.1 What does “lawful contact” mean?

a. Does it mean when the officer suspects that the person is committing, has committed, or a crime unrelated to the immigration laws?; or

b. Can it also mean that the person is suspected of having violated the immigration laws?

11-1051.B.2 What officers and officials are included?

11-1-51.B.3 What does “reasonable suspicion” mean?

11-1-51.B.4: What are the key indicators that a person “is an alien who is unlawfully


Bill Text Significant words or concepts Questions EXCEPT IF THE DETERMINATION MAY HINDER OR OBSTRUCT AN INVESTIGATION. ANY PERSON WHO IS ARRESTED SHALL HAVE THE PERSON'S IMMIGRATION STATUS DETERMINED BEFORE THE PERSON IS RELEASED. THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(C). A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT SOLELY 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. A PERSON IS PRESUMED TO NOT BE AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IF THE PERSON PROVIDES TO THE LAW ENFORCEMENT OFFICER OR AGENCY ANY OF THE FOLLOWING:

11-1051.B.5: “when practicable”

11-1051.B.6 “to determine the immigration status of the person”

11-1051.B.7 “except if the determination may hinder or obstruct an investigation”

11.1051.B.8 “Any person who is arrested shall have the person's immigration status determined before the person is released.”

11-1051.B.9 “The person's immigration status shall be verified with the federal government pursuant to 8 United States Code Section 1373(c).”

present in the United States?

11-1051.B.5 What does the “when practicable” exception mean?

11-1051.B.6 Determination of Immigration Status? 1) What is the process by which immigration status is determined?

a) Are there statutes that define the process for determination of status? b) Are there administrative rules that govern the process? c) Who makes the determination? d) Is there an appeal from an adverse determination? e) What are the consequences of an adverse determination?

2) Is the process exclusively federal, or may states participate? 11-1051.B.7 What is the nature and scope of the “hinder or obstruct an investigation” exception? 11.1051.B.8: Does “any person” really mean “any person”? 11-1051.B.9: What does 8 U.S.C. §1373(c) require?



11-1051-B.10: “May not solely 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.”

11-1051-B-11 “A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

11-1051-B.10. Non-discrimination

1) When does the United States Constitution permit race, color or national origin to be used as “one factor among others” (i.e. “not solely”) in implementing any law or policy?

2) When does the Arizona Constitution permit race, color or national origin to be used as “one factor among others” (i.e. “not solely”) in implementing any law or policy?

3) How is the term “race” defined? 4) How is the term “color” defined? 5) How is the term “national origin” defined?

11-1051.B.11: The presumption of legal status

1. A VALID ARIZONA DRIVER LICENSE. 1051-B.11.1Why should the State presume that a valid Arizona driver license guarantees legal status?

1. What is the process by which Arizona checks immigration status before it issues driver licenses?

2.

2. A VALID ARIZONA NONOPERATING IDENTIFICATION LICENSE.

1051-B.11.2 Why should the State presume that a valid Arizona nonoperating identification license guarantees legal status?


Bill Text Significant words or concepts Questions 1. What is a non-operating identification license? 2. What is the process by which Arizona checks immigration status before it issues

non-operating identification licenses?

3. A VALID TRIBAL ENROLLMENT CARD OR OTHER FORM OF TRIBAL IDENTIFICATION.

4. IF THE ENTITY REQUIRES PROOF OF LEGAL PRESENCE IN THE UNITED STATES BEFORE ISSUANCE, ANY VALID UNITED STATES FEDERAL, STATE OR LOCAL GOVERNMENT ISSUED IDENTIFICATION.

C. IF AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IS CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM IMPRISONMENT OR ON THE ASSESSMENT OF ANY MONETARY OBLIGATION THAT IS IMPOSED, THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION SHALL BE IMMEDIATELY NOTIFIED.

D. NOTWITHSTANDING ANY OTHER LAW, A


Bill Text Significant words or concepts Questions LAW ENFORCEMENT AGENCY MAY SECURELY TRANSPORT AN ALIEN WHO THE AGENCY HAS RECEIVED VERIFICATION IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS IN THE AGENCY'S CUSTODY TO A FEDERAL FACILITY IN THIS STATE OR TO ANY OTHER POINT OF TRANSFER INTO FEDERAL CUSTODY THAT IS OUTSIDE THE JURISDICTION OF THE LAW ENFORCEMENT AGENCY. A LAW ENFORCEMENT AGENCY SHALL OBTAIN JUDICIAL AUTHORIZATION BEFORE SECURELY TRANSPORTING AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES TO A POINT OF TRANSFER THAT IS OUTSIDE OF THIS STATE.

E. EXCEPT AS PROVIDED IN FEDERAL LAW, OFFICIALS OR AGENCIES OF THIS STATE AND COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS OF THIS STATE MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING, RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION STATUS, LAWFUL OR UNLAWFUL, OF ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY


Bill Text Significant words or concepts Questions OTHER FEDERAL, STATE OR LOCAL GOVERNMENTAL ENTITY FOR THE FOLLOWING OFFICIAL PURPOSES:

1. DETERMINING ELIGIBILITY FOR ANY PUBLIC BENEFIT, SERVICE OR LICENSE PROVIDED BY ANY FEDERAL, STATE, LOCAL OR OTHER POLITICAL SUBDIVISION OF THIS STATE.

2. VERIFYING ANY CLAIM OF RESIDENCE OR DOMICILE IF DETERMINATION OF RESIDENCE OR DOMICILE IS REQUIRED UNDER THE LAWS OF THIS STATE OR A JUDICIAL ORDER ISSUED PURSUANT TO A CIVIL OR CRIMINAL PROCEEDING IN THIS STATE.

3. IF THE PERSON IS AN ALIEN, DETERMINING WHETHER THE PERSON IS IN COMPLIANCE WITH THE FEDERAL REGISTRATION LAWS PRESCRIBED BY TITLE II, CHAPTER 7 OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT.

4. PURSUANT TO 8 UNITED STATES CODE SECTION 1373 AND 8 UNITED STATES CODE


Bill Text Significant words or concepts Questions SECTION 1644.

F. THIS SECTION DOES NOT IMPLEMENT, AUTHORIZE OR ESTABLISH AND SHALL NOT BE CONSTRUED TO IMPLEMENT, AUTHORIZE OR ESTABLISH THE REAL ID ACT OF 2005 (P.L. 109-13, DIVISION B; 119 STAT. 302), INCLUDING THE USE OF A RADIO FREQUENCY IDENTIFICATION CHIP.

G. A PERSON WHO IS A LEGAL RESIDENT OF THIS STATE MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY OR PRACTICE THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY


Bill Text Significant words or concepts Questions THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.

H. A COURT SHALL COLLECT THE CIVIL PENALTY PRESCRIBED IN SUBSECTION G OF THIS SECTION AND REMIT THE CIVIL PENALTY TO THE STATE TREASURER FOR DEPOSIT IN THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND ESTABLISHED BY SECTION 41-1724.

I. THE COURT MAY AWARD COURT COSTS AND REASONABLE ATTORNEY FEES TO ANY PERSON OR ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT PREVAILS BY AN ADJUDICATION ON THE MERITS IN A PROCEEDING BROUGHT PURSUANT TO THIS SECTION.

J. EXCEPT IN RELATION TO MATTERS IN WHICH THE OFFICER IS ADJUDGED TO HAVE ACTED IN BAD FAITH, A LAW ENFORCEMENT OFFICER IS INDEMNIFIED BY THE LAW


Bill Text Significant words or concepts Questions ENFORCEMENT OFFICER'S AGENCY AGAINST REASONABLE COSTS AND EXPENSES, INCLUDING ATTORNEY FEES, INCURRED BY THE OFFICER IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING BROUGHT PURSUANT TO THIS SECTION IN WHICH THE OFFICER MAY BE A DEFENDANT BY REASON OF THE OFFICER BEING OR HAVING BEEN A MEMBER OF THE LAW ENFORCEMENT AGENCY.

K. THIS SECTION SHALL BE IMPLEMENTED IN A MANNER CONSISTENT WITH FEDERAL LAWS REGULATING IMMIGRATION, PROTECTING THE CIVIL RIGHTS OF ALL PERSONS AND RESPECTING THE PRIVILEGES AND IMMUNITIES OF UNITED STATES CITIZENS.

Sec. 3. Title 13, chapter 15, Arizona Revised Statutes, is amended by adding section 13-1509, to read:

13-1509. Willful failure to complete or carry an alien registration document; assessment; exception; authenticated records; classification

A. IN ADDITION TO ANY VIOLATION OF


Bill Text Significant words or concepts Questions FEDERAL LAW, A PERSON IS GUILTY OF WILLFUL FAILURE TO COMPLETE OR CARRY AN ALIEN REGISTRATION DOCUMENT IF THE PERSON IS IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a).

B. IN THE ENFORCEMENT OF THIS SECTION, AN ALIEN'S IMMIGRATION STATUS MAY BE DETERMINED BY:

1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN'S IMMIGRATION STATUS.

2. THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

C. A PERSON WHO IS SENTENCED PURSUANT TO THIS SECTION IS NOT ELIGIBLE FOR SUSPENSION OF SENTENCE, PROBATION, PARDON, COMMUTATION OF SENTENCE, OR RELEASE FROM CONFINEMENT ON ANY BASIS


Bill Text Significant words or concepts Questions EXCEPT AS AUTHORIZED BY SECTION 31-233, SUBSECTION A OR B UNTIL THE SENTENCE IMPOSED BY THE COURT HAS BEEN SERVED OR THE PERSON IS ELIGIBLE FOR RELEASE PURSUANT TO SECTION 41-1604.07.

D. IN ADDITION TO ANY OTHER PENALTY PRESCRIBED BY LAW, THE COURT SHALL ORDER THE PERSON TO PAY JAIL COSTS AND AN ADDITIONAL ASSESSMENT IN THE FOLLOWING AMOUNTS:

1. AT LEAST FIVE HUNDRED DOLLARS FOR A FIRST VIOLATION.

2. TWICE THE AMOUNT SPECIFIED IN PARAGRAPH 1 OF THIS SUBSECTION IF THE PERSON WAS PREVIOUSLY SUBJECT TO AN ASSESSMENT PURSUANT TO THIS SUBSECTION.

E. A COURT SHALL COLLECT THE ASSESSMENTS PRESCRIBED IN SUBSECTION D OF THIS SECTION AND REMIT THE ASSESSMENTS TO THE DEPARTMENT OF PUBLIC SAFETY, WHICH SHALL ESTABLISH A SPECIAL SUBACCOUNT FOR THE MONIES IN


Bill Text Significant words or concepts Questions THE ACCOUNT ESTABLISHED FOR THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION APPROPRIATION. MONIES IN THE SPECIAL SUBACCOUNT ARE SUBJECT TO LEGISLATIVE APPROPRIATION FOR DISTRIBUTION FOR GANG AND IMMIGRATION ENFORCEMENT AND FOR COUNTY JAIL REIMBURSEMENT COSTS RELATING TO ILLEGAL IMMIGRATION.

F. THIS SECTION DOES NOT APPLY TO A PERSON WHO MAINTAINS AUTHORIZATION FROM THE FEDERAL GOVERNMENT TO REMAIN IN THE UNITED STATES.

G. ANY RECORD THAT RELATES TO THE IMMIGRATION STATUS OF A PERSON IS ADMISSIBLE IN ANY COURT WITHOUT FURTHER FOUNDATION OR TESTIMONY FROM A CUSTODIAN OF RECORDS IF THE RECORD IS CERTIFIED AS AUTHENTIC BY THE GOVERNMENT AGENCY THAT IS RESPONSIBLE FOR MAINTAINING THE RECORD.

H. A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR, EXCEPT THAT A VIOLATION


Bill Text Significant words or concepts Questions OF THIS SECTION IS:

1. A CLASS 3 FELONY IF THE PERSON VIOLATES THIS SECTION WHILE IN POSSESSION OF ANY OF THE FOLLOWING:

(a) A DANGEROUS DRUG AS DEFINED IN SECTION 13-3401.

(b) PRECURSOR CHEMICALS THAT ARE USED IN THE MANUFACTURING OF METHAMPHETAMINE IN VIOLATION OF SECTION 13-3404.01.

(c) A DEADLY WEAPON OR A DANGEROUS INSTRUMENT, AS DEFINED IN SECTION 13-105.

(d) PROPERTY THAT IS USED FOR THE PURPOSE OF COMMITTING AN ACT OF TERRORISM AS PRESCRIBED IN SECTION 13-2308.01.

2. A CLASS 4 FELONY IF THE PERSON EITHER:

(a) IS CONVICTED OF A SECOND OR SUBSEQUENT VIOLATION OF THIS SECTION.

(b) WITHIN SIXTY MONTHS BEFORE THE


Bill Text Significant words or concepts Questions VIOLATION, HAS BEEN REMOVED FROM THE UNITED STATES PURSUANT TO 8 UNITED STATES CODE SECTION 1229a OR HAS ACCEPTED A VOLUNTARY REMOVAL FROM THE UNITED STATES PURSUANT TO 8 UNITED STATES CODE SECTION 1229c.

Sec. 4. Section 13-2319, Arizona Revised Statutes, is amended to read:

13-2319. Smuggling; classification; definitions

A. It is unlawful for a person to intentionally engage in the smuggling of human beings for profit or commercial purpose.

B. A violation of this section is a class 4 felony.

C. Notwithstanding subsection B of this section, a violation of this section:

1. Is a class 2 felony if the human being who is smuggled is under eighteen years of age and is not accompanied by a family member over eighteen years of age or the offense involved the use of a deadly weapon or dangerous instrument.



2. Is a class 3 felony if the offense involves the use or threatened use of deadly physical force and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any other basis except pursuant to section 31-233, subsection A or B until the sentence imposed by the court is served, the person is eligible for release pursuant to section 41-1604.07 or the sentence is commuted.

D. Chapter 10 of this title does not apply to a violation of subsection C, paragraph 1 of this section.

E. NOTWITHSTANDING ANY OTHER LAW, IN THE ENFORCEMENT OF THIS SECTION A PEACE OFFICER MAY LAWFULLY STOP ANY PERSON WHO IS OPERATING A MOTOR VEHICLE IF THE OFFICER HAS REASONABLE SUSPICION TO BELIEVE THE PERSON IS IN VIOLATION OF ANY CIVIL TRAFFIC LAW.

E. F. For the purposes of this section:

1. "Family member" means the person's parent, grandparent, sibling or any other person who is related to the person by consanguinity or affinity to the second degree.



2. "Procurement of transportation" means any participation in or facilitation of transportation and includes:

(a) Providing services that facilitate transportation including travel arrangement services or money transmission services.

(b) Providing property that facilitates transportation, including a weapon, a vehicle or other means of transportation or false identification, or selling, leasing, renting or otherwise making available a drop house as defined in section 13-2322.

3. "Smuggling of human beings" means the transportation, procurement of transportation or use of property or real property by a person or an entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens or persons otherwise lawfully in this state or have attempted to enter, entered or remained in the United States in violation of law.

Sec. 5. Title 13, chapter 29, Arizona Revised Statutes, is amended by adding sections 13-2928 and 13-2929, to read:



13-2928. Unlawful stopping to hire and pick up passengers for work; unlawful application, solicitation or employment; classification; definitions

A. IT IS UNLAWFUL FOR AN OCCUPANT OF A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY TO ATTEMPT TO HIRE OR HIRE AND PICK UP PASSENGERS FOR WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.

B. IT IS UNLAWFUL FOR A PERSON TO ENTER A MOTOR VEHICLE THAT IS STOPPED ON A STREET, ROADWAY OR HIGHWAY IN ORDER TO BE HIRED BY AN OCCUPANT OF THE MOTOR VEHICLE AND TO BE TRANSPORTED TO WORK AT A DIFFERENT LOCATION IF THE MOTOR VEHICLE BLOCKS OR IMPEDES THE NORMAL MOVEMENT OF TRAFFIC.

C. IT IS UNLAWFUL FOR A PERSON WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS AN UNAUTHORIZED


Bill Text Significant words or concepts Questions ALIEN TO KNOWINGLY APPLY FOR WORK, SOLICIT WORK IN A PUBLIC PLACE OR PERFORM WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR IN THIS STATE.

D. A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR.

E. FOR THE PURPOSES OF THIS SECTION:

1. "SOLICIT" MEANS VERBAL OR NONVERBAL COMMUNICATION BY A GESTURE OR A NOD THAT WOULD INDICATE TO A REASONABLE PERSON THAT A PERSON IS WILLING TO BE EMPLOYED.

2. "UNAUTHORIZED ALIEN" MEANS AN ALIEN WHO DOES NOT HAVE THE LEGAL RIGHT OR AUTHORIZATION UNDER FEDERAL LAW TO WORK IN THE UNITED STATES AS DESCRIBED IN 8 UNITED STATES CODE SECTION 1324a(h)(3).

13-2929. Unlawful transporting, moving, concealing, harboring or shielding of unlawful aliens; vehicle impoundment; exception; classification

A. IT IS UNLAWFUL FOR A PERSON WHO IS IN


Bill Text Significant words or concepts Questions VIOLATION OF A CRIMINAL OFFENSE TO:

1. TRANSPORT OR MOVE OR ATTEMPT TO TRANSPORT OR MOVE AN ALIEN IN THIS STATE, IN FURTHERANCE OF THE ILLEGAL PRESENCE OF THE ALIEN IN THE UNITED STATES, IN A MEANS OF TRANSPORTATION IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW.

2. CONCEAL, HARBOR OR SHIELD OR ATTEMPT TO CONCEAL, HARBOR OR SHIELD AN ALIEN FROM DETECTION IN ANY PLACE IN THIS STATE, INCLUDING ANY BUILDING OR ANY MEANS OF TRANSPORTATION, IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW.

3. ENCOURAGE OR INDUCE AN ALIEN TO COME TO OR RESIDE IN THIS STATE IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT SUCH COMING TO, ENTERING


Bill Text Significant words or concepts Questions OR RESIDING IN THIS STATE IS OR WILL BE IN VIOLATION OF LAW.

B. A MEANS OF TRANSPORTATION THAT IS USED IN THE COMMISSION OF A VIOLATION OF THIS SECTION IS SUBJECT TO MANDATORY VEHICLE IMMOBILIZATION OR IMPOUNDMENT PURSUANT TO SECTION 28-3511.

C. THIS SECTION DOES NOT APPLY TO A CHILD PROTECTIVE SERVICES WORKER ACTING IN THE WORKER'S OFFICIAL CAPACITY OR A PERSON WHO IS ACTING IN THE CAPACITY OF A FIRST RESPONDER, AN AMBULANCE ATTENDANT OR AN EMERGENCY MEDICAL TECHNICIAN AND WHO IS TRANSPORTING OR MOVING AN ALIEN IN THIS STATE PURSUANT TO TITLE 36, CHAPTER 21.1.

D. A PERSON WHO VIOLATES THIS SECTION IS GUILTY OF A CLASS 1 MISDEMEANOR AND IS SUBJECT TO A FINE OF AT LEAST ONE THOUSAND DOLLARS, EXCEPT THAT A VIOLATION OF THIS SECTION THAT INVOLVES TEN OR MORE ILLEGAL ALIENS IS A CLASS 6


Bill Text Significant words or concepts Questions FELONY AND THE PERSON IS SUBJECT TO A FINE OF AT LEAST ONE THOUSAND DOLLARS FOR EACH ALIEN WHO IS INVOLVED.


13-3883. Arrest by officer without warrant

A. A peace officer may, without a warrant, MAY arrest a person if he THE OFFICER has probable cause to believe:

1. A felony has been committed and probable cause to believe the person to be arrested has committed the felony.

2. A misdemeanor has been committed in his THE OFFICER'S presence and probable cause to believe the person to be arrested has committed the offense.

3. The person to be arrested has been involved in a traffic accident and violated any criminal section of title 28, and that such violation occurred prior to or immediately following such traffic accident.

4. A misdemeanor or a petty offense has been committed


Bill Text Significant words or concepts Questions and probable cause to believe the person to be arrested has committed the offense. A person arrested under this paragraph is eligible for release under section 13-3903.

5. THE PERSON TO BE ARRESTED HAS COMMITTED ANY PUBLIC OFFENSE THAT MAKES THE PERSON REMOVABLE FROM THE UNITED STATES.

B. A peace officer may stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of any traffic law committed in the officer's presence and may serve a copy of the traffic complaint for any alleged civil or criminal traffic violation. A peace officer who serves a copy of the traffic complaint shall do so within a reasonable time of the alleged criminal or civil traffic violation.


23-212. Knowingly employing unauthorized aliens; prohibition; false and frivolous complaints; violation; classification; license suspension and revocation; affirmative defense

A. An employer shall not knowingly employ an


Bill Text Significant words or concepts Questions unauthorized alien. If, in the case when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in this state, the employer knowingly contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.

B. The attorney general shall prescribe a complaint form for a person to allege a violation of subsection A of this section. The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly knowingly employs an unauthorized alien, the attorney general or county attorney shall investigate whether the employer has violated subsection A of this section. If a complaint is received but is not submitted on a prescribed complaint form, the attorney general or county attorney may investigate whether the employer has violated subsection A of this section. This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin. A complaint


Bill Text Significant words or concepts Questions that is submitted to a county attorney shall be submitted to the county attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The county sheriff or any other local law enforcement agency may assist in investigating a complaint. When investigating a complaint, the attorney general or county attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 United States Code section 1373(c). A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 United States Code section 1373(c). A person who knowingly files a false and frivolous complaint under this subsection is guilty of a class 3 misdemeanor.

C. If, after an investigation, the attorney general or county attorney determines that the complaint is not false and frivolous:

1. The attorney general or county attorney shall notify the United States immigration and customs enforcement of the unauthorized alien.



2. The attorney general or county attorney shall notify the local law enforcement agency of the unauthorized alien.

3. The attorney general shall notify the appropriate county attorney to bring an action pursuant to subsection D of this section if the complaint was originally filed with the attorney general.

D. An action for a violation of subsection A of this section shall be brought against the employer by the county attorney in the county where the unauthorized alien employee is or was employed by the employer. The county attorney shall not bring an action against any employer for any violation of subsection A of this section that occurs before January 1, 2008. A second violation of this section shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection A of this section or section 23-212.01, subsection A.

E. For any action in superior court under this section, the court shall expedite the action, including assigning the hearing at the earliest practicable date.

F. On a finding of a violation of subsection A of this section:



1. For a first violation, as described in paragraph 3 of this subsection, the court:

(a) Shall order the employer to terminate the employment of all unauthorized aliens.

(b) Shall order the employer to be subject to a three year probationary period for the business location where the unauthorized alien performed work. During the probationary period the employer shall file quarterly reports in the form provided in section 23-722.01 with the county attorney of each new employee who is hired by the employer at the business location where the unauthorized alien performed work.

(c) Shall order the employer to file a signed sworn affidavit with the county attorney within three business days after the order is issued. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in this state and that the employer will not intentionally or knowingly employ an unauthorized alien in this state. The court shall order the appropriate agencies to suspend all licenses subject to this subdivision that are held by the employer if the employer fails to file a signed sworn affidavit with the county


Bill Text Significant words or concepts Questions attorney within three business days after the order is issued. All licenses that are suspended under this subdivision shall remain suspended until the employer files a signed sworn affidavit with the county attorney. Notwithstanding any other law, on filing of the affidavit the suspended licenses shall be reinstated immediately by the appropriate agencies. For the purposes of this subdivision, the licenses that are subject to suspension under this subdivision are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension under this subdivision are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the attorney general and the attorney general shall maintain the copy pursuant to subsection G of this section.

(d) May order the appropriate agencies to suspend all licenses described in subdivision (c) of this paragraph that


Bill Text Significant words or concepts Questions are held by the employer for not to exceed ten business days. The court shall base its decision to suspend under this subdivision on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant:

(i) The number of unauthorized aliens employed by the employer.

(ii) Any prior misconduct by the employer.

(iii) The degree of harm resulting from the violation.

(iv) Whether the employer made good faith efforts to comply with any applicable requirements.

(v) The duration of the violation.

(vi) The role of the directors, officers or principals of the employer in the violation.

(vii) Any other factors the court deems appropriate.

2. For a second violation, as described in paragraph 3 of this subsection, the court shall order the appropriate agencies to permanently revoke all licenses that are held


Bill Text Significant words or concepts Questions by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

3. The violation shall be considered:

(a) A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection or section 23-212.01, subsection F for that employer's business location.

(b) A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection or section 23-212.01, subsection F for that employer's business location.



G. The attorney general shall maintain copies of court orders that are received pursuant to subsection F of this section and shall maintain a database of the employers and business locations that have a first violation of subsection A of this section and make the court orders available on the attorney general's website.

H. On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 United States Code section 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 United States Code section 1373(c).

I. For the purposes of this section, proof of verifying the employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.

J. For the purposes of this section, an employer that


Bill Text Significant words or concepts Questions establishes that it has complied in good faith with the requirements of 8 United States Code section 1324a(b) establishes an affirmative defense that the employer did not knowingly employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 United States Code section 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements.

K. IT IS AN AFFIRMATIVE DEFENSE TO A VIOLATION OF SUBSECTION A OF THIS SECTION THAT THE EMPLOYER WAS ENTRAPPED. TO CLAIM ENTRAPMENT, THE EMPLOYER MUST ADMIT BY THE EMPLOYER'S TESTIMONY OR OTHER EVIDENCE THE SUBSTANTIAL ELEMENTS OF THE VIOLATION. AN EMPLOYER WHO ASSERTS AN ENTRAPMENT DEFENSE HAS THE BURDEN OF PROVING THE FOLLOWING BY A PREPONDERANCE OF THE EVIDENCE:

1. THE IDEA OF COMMITTING THE VIOLATION STARTED WITH LAW ENFORCEMENT OFFICERS OR THEIR AGENTS RATHER THAN WITH THE


Bill Text Significant words or concepts Questions EMPLOYER.

2. THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE EMPLOYER TO COMMIT THE VIOLATION.

3. THE EMPLOYER WAS NOT PREDISPOSED TO COMMIT THE VIOLATION BEFORE THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE EMPLOYER TO COMMIT THE VIOLATION.

L. AN EMPLOYER DOES NOT ESTABLISH ENTRAPMENT IF THE EMPLOYER WAS PREDISPOSED TO VIOLATE SUBSECTION A OF THIS SECTION AND THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS MERELY PROVIDED THE EMPLOYER WITH AN OPPORTUNITY TO COMMIT THE VIOLATION. IT IS NOT ENTRAPMENT FOR LAW ENFORCEMENT OFFICERS OR THEIR AGENTS MERELY TO USE A RUSE OR TO CONCEAL THEIR IDENTITY. THE CONDUCT OF LAW ENFORCEMENT OFFICERS AND THEIR AGENTS MAY BE CONSIDERED IN DETERMINING IF AN EMPLOYER HAS PROVEN ENTRAPMENT.



Sec. 8. Section 23-212.01, Arizona Revised Statutes, is amended to read:

23-212.01. Intentionally employing unauthorized aliens; prohibition; false and frivolous complaints; violation; classification; license suspension and revocation; affirmative defense

A. An employer shall not intentionally employ an unauthorized alien. If, in the case when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in this state, the employer intentionally contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.

B. The attorney general shall prescribe a complaint form for a person to allege a violation of subsection A of this section. The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly intentionally employs an unauthorized alien, the attorney general or county attorney shall


Bill Text Significant words or concepts Questions investigate whether the employer has violated subsection A of this section. If a complaint is received but is not submitted on a prescribed complaint form, the attorney general or county attorney may investigate whether the employer has violated subsection A of this section. This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin. A complaint that is submitted to a county attorney shall be submitted to the county attorney in the county in which the alleged unauthorized alien is or was employed by the employer. The county sheriff or any other local law enforcement agency may assist in investigating a complaint. When investigating a complaint, the attorney general or county attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 United States Code section 1373(c). A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal government pursuant to 8 United States Code section 1373(c). A person who knowingly files a false and


Bill Text Significant words or concepts Questions frivolous complaint under this subsection is guilty of a class 3 misdemeanor.

C. If, after an investigation, the attorney general or county attorney determines that the complaint is not false and frivolous:

1. The attorney general or county attorney shall notify the United States immigration and customs enforcement of the unauthorized alien.

2. The attorney general or county attorney shall notify the local law enforcement agency of the unauthorized alien.

3. The attorney general shall notify the appropriate county attorney to bring an action pursuant to subsection D of this section if the complaint was originally filed with the attorney general.

D. An action for a violation of subsection A of this section shall be brought against the employer by the county attorney in the county where the unauthorized alien employee is or was employed by the employer. The county attorney shall not bring an action against any employer for any violation of subsection A of this section that occurs before January 1, 2008. A second violation of this section shall be based only on an unauthorized alien


Bill Text Significant words or concepts Questions who is or was employed by the employer after an action has been brought for a violation of subsection A of this section or section 23-212, subsection A.

E. For any action in superior court under this section, the court shall expedite the action, including assigning the hearing at the earliest practicable date.

F. On a finding of a violation of subsection A of this section:

1. For a first violation, as described in paragraph 3 of this subsection, the court shall:

(a) Order the employer to terminate the employment of all unauthorized aliens.

(b) Order the employer to be subject to a five year probationary period for the business location where the unauthorized alien performed work. During the probationary period the employer shall file quarterly reports in the form provided in section 23-722.01 with the county attorney of each new employee who is hired by the employer at the business location where the unauthorized alien performed work.

(c) Order the appropriate agencies to suspend all licenses


Bill Text Significant words or concepts Questions described in subdivision (d) of this paragraph that are held by the employer for a minimum of ten days. The court shall base its decision on the length of the suspension under this subdivision on any evidence or information submitted to it during the action for a violation of this subsection and shall consider the following factors, if relevant:

(i) The number of unauthorized aliens employed by the employer.

(ii) Any prior misconduct by the employer.

(iii) The degree of harm resulting from the violation.

(iv) Whether the employer made good faith efforts to comply with any applicable requirements.

(v) The duration of the violation.

(vi) The role of the directors, officers or principals of the employer in the violation.

(vii) Any other factors the court deems appropriate.

(d) Order the employer to file a signed sworn affidavit with the county attorney. The affidavit shall state that the


Bill Text Significant words or concepts Questions employer has terminated the employment of all unauthorized aliens in this state and that the employer will not intentionally or knowingly employ an unauthorized alien in this state. The court shall order the appropriate agencies to suspend all licenses subject to this subdivision that are held by the employer if the employer fails to file a signed sworn affidavit with the county attorney within three business days after the order is issued. All licenses that are suspended under this subdivision for failing to file a signed sworn affidavit shall remain suspended until the employer files a signed sworn affidavit with the county attorney. For the purposes of this subdivision, the licenses that are subject to suspension under this subdivision are all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses that are subject to suspension under this subdivision are all licenses that are held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court's order.


Bill Text Significant words or concepts Questions The court shall send a copy of the court's order to the attorney general and the attorney general shall maintain the copy pursuant to subsection G of this section.

2. For a second violation, as described in paragraph 3 of this subsection, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses that are held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

3. The violation shall be considered:

(a) A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection or section 23-212, subsection F for that employer's business location.



(b) A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection or section 23-212, subsection F for that employer's business location.

G. The attorney general shall maintain copies of court orders that are received pursuant to subsection F of this section and shall maintain a database of the employers and business locations that have a first violation of subsection A of this section and make the court orders available on the attorney general's website.

H. On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 United States Code section 1373(c). The federal government's determination creates a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated or testimonial verification pursuant to 8 United States Code section 1373(c).

I. For the purposes of this section, proof of verifying the


Bill Text Significant words or concepts Questions employment authorization of an employee through the e-verify program creates a rebuttable presumption that an employer did not intentionally employ an unauthorized alien.

J. For the purposes of this section, an employer that establishes that it has complied in good faith with the requirements of 8 United States Code section 1324a(b) establishes an affirmative defense that the employer did not intentionally employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 United States Code section 1324a(b), notwithstanding an isolated, sporadic or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements.

K. IT IS AN AFFIRMATIVE DEFENSE TO A VIOLATION OF SUBSECTION A OF THIS SECTION THAT THE EMPLOYER WAS ENTRAPPED. TO CLAIM ENTRAPMENT, THE EMPLOYER MUST ADMIT BY THE EMPLOYER'S TESTIMONY OR OTHER EVIDENCE THE SUBSTANTIAL ELEMENTS OF THE VIOLATION. AN EMPLOYER WHO ASSERTS AN ENTRAPMENT DEFENSE HAS THE BURDEN OF


Bill Text Significant words or concepts Questions PROVING THE FOLLOWING BY A PREPONDERANCE OF THE EVIDENCE:

1. THE IDEA OF COMMITTING THE VIOLATION STARTED WITH LAW ENFORCEMENT OFFICERS OR THEIR AGENTS RATHER THAN WITH THE EMPLOYER.

2. THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE EMPLOYER TO COMMIT THE VIOLATION.

3. THE EMPLOYER WAS NOT PREDISPOSED TO COMMIT THE VIOLATION BEFORE THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS URGED AND INDUCED THE EMPLOYER TO COMMIT THE VIOLATION.

L. AN EMPLOYER DOES NOT ESTABLISH ENTRAPMENT IF THE EMPLOYER WAS PREDISPOSED TO VIOLATE SUBSECTION A OF THIS SECTION AND THE LAW ENFORCEMENT OFFICERS OR THEIR AGENTS MERELY PROVIDED THE EMPLOYER WITH AN OPPORTUNITY TO COMMIT THE VIOLATION. IT IS NOT ENTRAPMENT FOR LAW


Bill Text Significant words or concepts Questions ENFORCEMENT OFFICERS OR THEIR AGENTS MERELY TO USE A RUSE OR TO CONCEAL THEIR IDENTITY. THE CONDUCT OF LAW ENFORCEMENT OFFICERS AND THEIR AGENTS MAY BE CONSIDERED IN DETERMINING IF AN EMPLOYER HAS PROVEN ENTRAPMENT.


23-214. Verification of employment eligibility; e-verify program; economic development incentives; list of registered employers

A. After December 31, 2007, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the e-verify program AND SHALL KEEP A RECORD OF THE VERIFICATION FOR THE DURATION OF THE EMPLOYEE'S EMPLOYMENT OR AT LEAST THREE YEARS, WHICHEVER IS LONGER.

B. In addition to any other requirement for an employer to receive an economic development incentive from a government entity, the employer shall register with and participate in the e-verify program. Before receiving the


Bill Text Significant words or concepts Questions economic development incentive, the employer shall provide proof to the government entity that the employer is registered with and is participating in the e-verify program. If the government entity determines that the employer is not complying with this subsection, the government entity shall notify the employer by certified mail of the government entity's determination of noncompliance and the employer's right to appeal the determination. On a final determination of noncompliance, the employer shall repay all monies received as an economic development incentive to the government entity within thirty days of the final determination. For the purposes of this subsection:

1. "Economic development incentive" means any grant, loan or performance-based incentive from any government entity that is awarded after September 30, 2008. Economic development incentive does not include any tax provision under title 42 or 43.

2. "Government entity" means this state and any political subdivision of this state that receives and uses tax revenues.

C. Every three months the attorney general shall request from the United States department of homeland security


Bill Text Significant words or concepts Questions a list of employers from this state that are registered with the e-verify program. On receipt of the list of employers, the attorney general shall make the list available on the attorney general's website.


28-3511. Removal and immobilization or impoundment of vehicle

A. A peace officer shall cause the removal and either immobilization or impoundment of a vehicle if the peace officer determines that a person is driving the vehicle while any of the following applies:

1. The person's driving privilege is suspended or revoked for any reason.

2. The person has not ever been issued a valid driver license or permit by this state and the person does not produce evidence of ever having a valid driver license or permit issued by another jurisdiction. This paragraph does not apply to the operation of an implement of husbandry.

3. The person is subject to an ignition interlock device


Bill Text Significant words or concepts Questions requirement pursuant to chapter 4 of this title and the person is operating a vehicle without a functioning certified ignition interlock device. This paragraph does not apply to a person operating an employer's vehicle or the operation of a vehicle due to a substantial emergency as defined in section 28-1464.

4. IN FURTHERANCE OF THE ILLEGAL PRESENCE OF AN ALIEN IN THE UNITED STATES AND IN VIOLATION OF A CRIMINAL OFFENSE, THE PERSON IS TRANSPORTING OR MOVING OR ATTEMPTING TO TRANSPORT OR MOVE AN ALIEN IN THIS STATE IN A VEHICLE IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW.

5. THE PERSON IS CONCEALING, HARBORING OR SHIELDING OR ATTEMPTING TO CONCEAL, HARBOR OR SHIELD FROM DETECTION AN ALIEN IN THIS STATE IN A VEHICLE IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW.



B. A peace officer shall cause the removal and impoundment of a vehicle if the peace officer determines that a person is driving the vehicle and if all of the following apply:

1. The person's driving privilege is canceled, suspended or revoked for any reason or the person has not ever been issued a driver license or permit by this state and the person does not produce evidence of ever having a driver license or permit issued by another jurisdiction.

2. The person is not in compliance with the financial responsibility requirements of chapter 9, article 4 of this title.

3. The person is driving a vehicle that is involved in an accident that results in either property damage or injury to or death of another person.

C. Except as provided in subsection D of this section, while a peace officer has control of the vehicle the peace officer shall cause the removal and either immobilization or impoundment of the vehicle if the peace officer has probable cause to arrest the driver of the vehicle for a violation of section 4-244, paragraph 34 or section 28-1382 or 28-1383.



D. A peace officer shall not cause the removal and either the immobilization or impoundment of a vehicle pursuant to subsection C of this section if all of the following apply:

1. The peace officer determines that the vehicle is currently registered and that the driver or the vehicle is in compliance with the financial responsibility requirements of chapter 9, article 4 of this title.

2. The spouse of the driver is with the driver at the time of the arrest.

3. The peace officer has reasonable grounds to believe that the spouse of the driver:

(a) Has a valid driver license.

(b) Is not impaired by intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances.

(c) Does not have any spirituous liquor in the spouse's body if the spouse is under twenty-one years of age.



4. The spouse notifies the peace officer that the spouse will drive the vehicle from the place of arrest to the driver's home or other place of safety.

5. The spouse drives the vehicle as prescribed by paragraph 4 of this subsection.

E. Except as otherwise provided in this article, a vehicle that is removed and either immobilized or impounded pursuant to subsection A, B or C of this section shall be immobilized or impounded for thirty days. An insurance company does not have a duty to pay any benefits for charges or fees for immobilization or impoundment.

F. The owner of a vehicle that is removed and either immobilized or impounded pursuant to subsection A, B or C of this section, the spouse of the owner and each person identified on the department's record with an interest in the vehicle shall be provided with an opportunity for an immobilization or poststorage hearing pursuant to section 28-3514.

Sec. 11. Title 41, chapter 12, article 2, Arizona Revised Statutes, is amended by adding section 41-1724, to read:

41-1724. Gang and immigration intelligence team


Bill Text Significant words or concepts Questions enforcement mission fund

THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND IS ESTABLISHED CONSISTING OF MONIES DEPOSITED PURSUANT TO SECTION 11-1051 AND MONIES APPROPRIATED BY THE LEGISLATURE. THE DEPARTMENT SHALL ADMINISTER THE FUND. MONIES IN THE FUND ARE SUBJECT TO LEGISLATIVE APPROPRIATION AND SHALL BE USED FOR GANG AND IMMIGRATION ENFORCEMENT AND FOR COUNTY JAIL REIMBURSEMENT COSTS RELATING TO ILLEGAL IMMIGRATION.

Sec. 12. Severability, implementation and construction

A. If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

B. The terms of this act regarding immigration shall be construed to have the meanings given to them under


Bill Text Significant words or concepts Questions federal immigration law.

C. This act shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.

D. Nothing in this act shall implement or shall be construed or interpreted to implement or establish the REAL ID act of 2005 (P.L. 109-13, division B; 119 Stat. 302) including the use of a radio frequency identification chip.

Sec. 13. Short title

This act may be cited as the "Support Our Law Enforcement and Safe Neighborhoods Act".

APPROVED BY THE GOVERNOR APRIL 23, 2010.

FILED IN THE OFFICE OF THE SECRETARY OF STATE APRIL 23, 2010.

Testing Your Knowledge: Applying the Law in a Real Case: Escobar v. Brewer

Office of Special Counsel

Memorandum To: Law Clerks

From: Wiley N. Smart, Special Counsel to the Attorney General

Date: May 10, 2010

Re: Litigation Strategy Meeting to Discuss Escobar v. Brewer and the Lawsuit Threat by the United States Against the State of Arizona

II. AGENDA

By now you are very familiar with the text and structure of Chapter 113, S.B. 1070 – The “"Support Our Law Enforcement and Safe Neighborhoods Act". The goal of our meeting this morning is to review the law, to examine the allegations of a recent lawsuit filed by Tucson Police Officer, Martin H. Escobar, against Governor Brewer, the Attorney General, the City of Tucson, and Barbara Wall, the Pima County Attorney.

Please turn the page

Time Presenter 9:30-9:40 Welcome and Overview: Questions Presented Special Counsel9:40-10:30 The Litigation Landscape on 10 May, 2010

What Are the Issues? Law Clerks

10:30-1:30 General Discussion of Issues I, II & III Law Clerks 1:30 Adjourn for much-needed break


QUESTION I

We will first consider the complaint filed in the Escobar case. Mr. Escobar’s case pleads the following counts:

I. Due Process II Equal Protection III Free Speech IV. Fifth Amendment. V Fourth Amendment VI Federal Preemption & Unauthorized or Supervised Federal Immigration Conduct

• For purposes of this question ONLY, you are to focus ONLY on the Due Process (Count I); Equal Protection (Count II), Free Speech (Count III); and Fifth Amendment (Count IV). (NB: No discussion of the Fourth Amendment and Preemption counts should be included here. I will penalize you if you do so – the first rule of law being: “Follow the directions.”)

For purposes of this question, you are to assume that our first option to respond to the Complaint will be to file a Rule 12(b)(6) Motion to Dismiss. As you recall, the Court reviews a Rule 12(b)(6) motion by assuming that all the facts are true.

Please note that when I say “list” the facts, I mean that you should actually list them. You need not quote them (that would take too long), just note the paragraph # and a short summary of the fact pleaded.

For each fact listed, please tell me how that fact, if true, would support the specific constitutional claim that Escobar is making.in each count. Note: You need not discuss each fact as soon as you write it down. You can (and should) look at your list, and then summarize how they do (or do not) make a case for the constitutional violation they are alleged to support.

Question I-A: (Due Process)

Given the facts pleaded, what is the nature of Escobar’s “Due Process” claim? (i.e. What is it that Officer Escobar is complaining about – from a “due process” perspective?) In answering this question, please list what fact (or facts) in the complaint would – if assumed to be true – support a Due Process claim.

Question I-B: (Fifth Amendment)

Given the facts pleaded, what is the nature of Escobar’s Fifth Amendment claim? (i.e. What is it that Officer Escobar is complaining about – from a Fifth Amendment perspective?) In answering this question, please list what fact (or facts) in the complaint would – if assumed to be true – support a Fifth Amendment claim.


Question I continues, please turn the page

Question I-C: (Free Speech)

Given the facts pleaded, what is the nature of Escobar’s Free Speech claim? (i.e. What is it that Officer Escobar is complaining about – from a Free Speech perspective?) In answering this question, please list what fact (or facts) in the complaint would – if assumed to be true – support a Free Speech claim.

Question I-D: (Equal Protection)

Given the facts pleaded, what is the nature of Escobar’s Equal Protection claim? (i.e. What is it that Officer Escobar is complaining about – from an Equal Protection perspective?) In answering this question, please list what fact (or facts) in the complaint would – if assumed to be true – support an Equal Protection claim.

--------------------- * * * *

----------------------

QUESTION II

We will now turn to the substance of the Equal Protection claim (Count II). Please write me a short memo that provides answers to the following questions:

• Question II-A: Should the Equal Protection claim, as pleaded, survive a Rule 12(b)(6) Motion to dismiss? (Yes or No)

• Question II-B: What specific facts must Escobar prove at trial in order to sustain his burden of proof that the State of Arizona is guilty of an Equal Protection violation?

• Question II-C: Whose depositions must Escobar take in order to find the facts he will need to meet his burden of proving the Equal Protection claim in Count II?

• Question II-D: Assuming that Officer Escobar’s counsel will want to take the depositions of those you have listed, what constitutional objections (i.e. defenses) – if any – can we interpose to the questions that you anticipate that counsel will ask each of the witnesses you have listed?

Question III begins on the next page.


QUESTION III

This question asks you to focus ONLY on the federal preemption claim. For purposes of this question, you are to focus on the defendant, State of Arizona.

Additional Facts

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), effective September 30, 1996, added Section 287(g) [8 U.S.C. § 287(g)] , performance of immigration officer functions by state officers and employees, to the Immigration and Nationality Act (INA). This authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Agreement (MOA), provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

Section 287(g) provides, in full:

(g) Performance of immigration officer functions by State officers and employees

(1) Notwithstanding section 1342 of title 31 [which makes Immigration Enforcement an exclusive federal function], the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.

(2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws.

(3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General.

(4) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State may use Federal property or facilities, as provided in a written agreement between the Attorney General and the State or subdivision.

(5) With respect to each officer or employee of a State or political subdivision who is authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority


of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual, shall be set forth in a written agreement between the Attorney General and the State or political subdivision.

(6) The Attorney General may not accept a service under this subsection if the service will be used to displace any Federal employee.

(7) Except as provided in paragraph (8), an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of title 5 (relating to compensation for injury) and sections 2671 through 2680 of title 28 (relating to tort claims).

(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.

(9) Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.

(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State—

(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or

(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.

The State of Arizona and several of its subdivisions have entered into Memoranda of Understanding (MOUs) with the Department of Homeland Security’s Division of Immigration and Customs Enforcement (ICE). Among those covered by these MOUs are:

• The Arizona Department of Public Safety (i.e. the State Police) • The Arizona Department of Prisons • The Pima County Sheriff’s Office (which covers Tucson) • Several other counties, including Maricopa (Phoenix)

For purposes of this question, you are to assume that the State of Arizona will be able to show at trial that it has complied scrupulously with each of the requirements noted above. You are also to assume that the Executive Order signed by Governor Brewer (which you have had an opportunity to review) is not only being enforced, the State police have made consistent efforts to educate local police concerning its requirements.

Question III concludes on the next page


Because we assume that Attorney General Holder will sue the State on behalf of the United States alleging preemption and other violations, please write a series of “talking points” for the Attorney General to use during the news conference that he will schedule as soon as the federal complaint is filed.

The talking points should

A. Outline the State’s constitutional defenses (i.e. list them – and provide a short explanation of why the defense asserted is legitimate);

B. Explain (in plain English) why the State of Arizona has been authorized by the federal government to enforce federal law.

C. Make reference to specific provisions of Governor Brewer’s Executive Order that support the position that you are urging the Attorney General to take on the State’s behalf.


Complaint in Escobar v. Brewer

(please turn the page)

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RICHARD M. MARTINEZ, SBA No. 7763307 South Convent AvenueTucson, Arizona 85701(520) 327-4797 phone(520) 320-9090 [email protected] for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE STATE OF ARIZONA

MARTIN H. ESCOBAR ))

Plaintiff, ) No. )

v. )) COMPLAINT

JAN BREWER, Governor of )the State of Arizona, in her )Official and Individual )Capacity, TERRY GODDARD, )the Attorney General of the )the State of Arizona, in his )Official and Individual Capacity,)the City of Tucson, a )municipal corporation, and )Barbara LaWall, County )Attorney, Pima County )

)Defendants. )

)

Plaintiff alleges:

I. JURISDICTION

1. Jurisdiction is conferred on this Court by 28 U.S.C. § 1331and 1343(a)(4).

II. VENUE

2. Venue is proper in this Court because Defendants’ unlawful conduct has

been initiated and will occur within in the State of Arizona, including Pima County.

III. PARTIES

3. Plaintiff is a naturalized citizen of the United States and a resident of the

State of Arizona living in Pima County within the geographic boundaries of the City of

Tucson.

4. Defendant Jan Brewer is the Governor of the State of Arizona, and as such

Case 4:10-cv-00249-DCB Document 1 Filed 04/29/10 Page 1 of 10

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the highest ranking state constitutional officer whose powers as the chief executive

include the approval of legislation passed by the Arizona State Legislature,,

5. Defendant Terry Goddard is the Attorney General for the State of Arizona,

and as such is the highest ranking law enforcement official for the State, has the

authority to prosecute alleged violations of the enacted criminal statutes of the State

of Arizona.

6. The City of Tucson is a municipal corporation, which exists pursuant

statutory authority provided by the Legislature of the State of Arizona.

7. Barbara LaWall is the County Attorney in Pima County.

IV. GENERAL ALLEGATIONS

8. Plaintiff is Hispanic.

9. Plaintiff is employed as a permanent Police Officer with the City of Tucson

for the Tucson Police Department.

10. The Tucson Police Department was established and is operated by the City

of Tucson.

11. Plaintiff’s employment as a Police Officer requires as a condition of

employment that he is certified as a Law Enforcement Official by the Arizona Peace

Officer Standard and Training Board (AzPOST”), and maintain in good standing

AZPOST Law Enforcement Certification.

12. The Tucson Police Department operates as a law enforcement agency for

a community with a significant Hispanic population, approximately 36%, that reside

within and travel throughout the incorporated area of the City which is also the

jurisdictional area of all official responsibilities of plaintiff as a law enforcement official.

13. The City of Tucson is located within the geographic boundaries of Pima

County; the County’s Hispanic population in the 2000 Census was reported to be

247,578 and comprise 29.34% of the general population.

14. Plaintiff is currently assigned to uniform patrol in Operations Division South

an area of the City of Tucson in which Hispanic represent well over 50% of the


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residents, Spanish is commonly spoken and frequented by visitors from Mexico.

15. The City of Tucson is geographically located approximately 60 miles south

of the international border between the United States of America and Mexico.

16. The State of Arizona shares a geographic border with the State of Sonora,

Mexico that spans the entire length of the State of State of Arizona’s southern border.

17. In the December 2008 publication prepared by the University of Arizona

Eller College of Management for the Arizona Office of Tourism, Mexican Visitors to

Arizona: Visitor Characteristics and Economic Impacts, 2007-08,it was reported that

over 24 million lawful Mexican alien crossings occurred from Mexico to Arizona from

July 2007 to June 2008 and that the City of Tucson is a major destination point for

Mexican visitors.

18. The City of Tucson is connected to the border cities of Nogales, Sonora

Mexico and Nogales Arizona by Interstate 19, an established part the United States

Interstate Freeway system; Interstate 19 is a major corridor of travel between citizens

of Mexico and United States who utilize this roadway on a 24/7 basis and number in

the hundreds of thousands. Additionally, the I-19 corridor is utilized as a significant

commercial corridor for international trade and goods in the hundreds of millions of

dollars on an annual basis.

19. In plaintiff’s experience as a Law Enforcement Officer, proximity to the

Mexican border does not provide any race neutral criteria or basis to suspect or

identify who is lawfully in the United States.

20. In plaintiff’s experience as a Law Enforcement Officer, neither the racial and

linguistic characteristics of Operations Division South or the Mexican national visitors

thereto provide any race neutral criteria or basis to suspect or identify who is lawfully

in the United States.

21. During the performance of plaintiff’s duties as a Law Enforcement Officer

he has daily contact with numerous Hispanics, a number of whom have a skin color

and/or physical features that are commonly attributed to Hispanics; In plaintiff’s


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experience as a Law Enforcement Officer, skin color and/or physical features does not

provide any race neutral criteria or basis to suspect or identify who is lawfully in the

United States.


he has daily contact with numerous Hispanics, a number of whom dress in a manner

that is commonly and/or stereotypical in attribution to Hispanics; In plaintiff’s

experience as a Law Enforcement Officer, the clothing worn by any person does not

provide any race neutral criteria or basis to suspect or identify who is lawfully in the

United States.

23. During the performance of plaintiff’s duties as a Law Enforcement Officer,

he has daily contact with numerous Hispanics, a number of whom are Spanish-

speaking, some monolingual Spanish-speakers, some Spanish dominant and some

who speak English with an accent; In plaintiff’s experience as a Law Enforcement

Officer, a person’s linguistic capabilities in Spanish and/or English do not provide any

race neutral criteria or basis to suspect or identify who is lawfully in the United States.


he has daily contact with numerous Hispanics, a number of whom listen to Spanish-

language radio, television and music; In his experience as a Law Enforcement Officer,

listening to Spanish-language radio, watching Spanish-language television or playing

Spanish-language music does not provide any race neutral criteria or basis to suspect

or identify who is lawfully in the United States.


he has daily contact with numerous Hispanics, a number of whom are in vehicles that

are common and/or stereotypical in attribution to Hispanics; In plaintiff’s experience

as a Law Enforcement Officer, the vehicle a person is in person does not provide any

race neutral criteria or basis to suspect or identify who is lawfully in the United States.


he has daily contact with numerous Hispanics, a number of whom use public


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transportation, commuter vans or commercial carriers; In plaintiff’s experience as a

Law Enforcement Officer, the use of public transportation, commuter vans or

commercial carriers does not provide any race neutral criteria or basis to suspect or

identify who is lawfully in the United States.


he has daily contact with numerous Hispanics, a number of whom are in vehicles with

out of state and Mexican automobile license plates; In plaintiff’s experience as a Law

Enforcement Officer, the license plate on a vehicle does not provide any race neutral

criteria or basis to suspect or identify who is lawfully in the United States.


he has daily contact with numerous Hispanics, a number of whom live or are inside

a residence that is common and/or stereotypical in attribution to Hispanics to

Hispanics;


he has daily contact with numerous Hispanics, some of whom are elementary, middle

and high school age and at times occur on school grounds or in close proximity

thereto.

30. In plaintiff’s experience as a Law Enforcement Officer, contact with K-12

school age Hispanic children that includes any inquiry into the student’s or parents

status in the United States is not premised on race neutral criteria or basis to suspect

or identify who is lawfully in the United States and does not occur without invading the

student’s privacy, right to due process or equal protection.

31. In plaintiff’s experience as a Law Enforcement Officer, there are no race

neutral criteria or basis to suspect or identify who is lawfully in the United States;

requiring such, the mandate of SB 1070, compels under threat of lawsuit, discipline

and loss of required certification every Law Enforcement Officer in the State of Arizona

to actively engage in racial profiling to detain, question and require every Hispanic

found within the limits of the City of Tucson to prove their legal status in the United


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States of America irrespective of county of origin, citizenship, immigrant status based

solely on immutable and mutable characteristics common or stereotypical in attribution

to Hispanics.


he has daily contact with Hispanics during the investigation into potential criminal

activity, an investigation that is often dependent on the cooperation, information and

trust of Hispanic witnesses and victims; In plaintiff’s experience as a Law Enforcement

Officer, requiring law enforcement to routinely question Hispanics about their

immigrant status in the United States and require production of actual proof of their

lawful presence in the United States would seriously impede law enforcement

investigations and facilitate the successful commission of crimes in the United States.

33. Defendant Brewer signed Senate Bill 1070 into law on Friday, April 23rd,

2010 and on the same date issued Executive Order 2010-09 requiring AzPOST to

prescribe a minimum training course for law enforcement officers in the state and all

political subdivisions to implement SB 1070 while allowing for use of race, color and

national origin as permissible factors to consider in establishing reasonable suspicion

that a person is an undocumented alien.

34. SB 1070 compels plaintiff as a AzPOST certified Law Enforcement Officer

for the City of Tucson to determine the immigration status of Hispanics, detain, arrest

and criminally cite undocumented persons and lawful residents of the United States

who fail to complete or carry an alien registration document.

35. SB 1070 amends A.R.S. § 13-1509, and provides for the criminal

prosecution as a class 1 misdemeanor and as a felony persons who fail to complete

or carry an alien registration document.

36. The City of Tucson has established and maintains as a part of the City

Attorney’s Office, a criminal prosecution entity that routinely prosecutes criminal

matters within the jurisdiction of the Tucson Municipal City Court.

37. Barbara LaWall, as the County Attorney for Pima County has the


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responsibility and duty to prosecute alleged violations of the criminal laws enacted in

Arizona by charging such alleged offenses in the Pima County Justice Court or the

Superior Court of the State of Arizona in Pima County.

38. At all times relevant to this complaint, Defendants have announced and

made clear their intent to implement and enforce SB 1070, enacted legislation of the

State of Arizona, a session law that places every Hispanic within the State of Arizona

at substantial risk of the immediate loss of rights guaranteed by the United States

Constitution, including unlawful detention, denial of due process, equal protection

based solely on their race, Hispanic.

39. SB 1070 was enacted by the Legislature of the State of Arizona and signed

into law by Defendant Brewer as a result of racial bias and anti-Hispanic beliefs and

sentiments.

40. Plaintiff believes that SB 1070 is the product of racial bias aimed

specifically at Hispanics, is unlawful, results in impermissible deprivations of rights

guaranteed by the United States Constitution, has voiced his opinions of such in the

work place and been confronted by Law Enforcement Officer’s for expressing such

beliefs.

41. The City of Tucson, including the Tucson Police Department has no

agreement or authorization as provided for and required by 8 U.S.C. § 1357,

Subsection 287(g)(1) and (5) to allow, instruct or order any City of Tucson employee,

including and of its 1,100 plus authorized Law Enforcement Officers to make any

inquiry of any individual concerning the person’s immigration status or require proof

of lawful presence in the United States.

COUNT ONE

FOURTEENTH AMENDMENT: DUE PROCESS

(42 U.S.C. § 1983)

42. Plaintiff hereby re-alleges and incorporates all allegations contained in

paragraphs 1 through 41 as if fully set forth herein.


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43. Defendants’ actions constitute violations of due process and 42 U.S.C. §

1983.

44. As a direct and proximate result of the conduct of Defendants’, Plaintiff has

suffered injury.

COUNT TWO

FOURTEENTH AMENDMENT: EQUAL PROTECTION

(42 U.S.C. § 1983)



46. Defendants’ actions against Plaintiff constitute a violation of equal

protection and 42 U.S.C. § 1983.

47. As a direct and proximate result of the conduct of Defendants’, Plaintiff

has suffered injury.

COUNT THREE

FIRST AMENDMENT: FREE SPEECH



49. Defendants’ actions against Plaintiff constitute a violation of free speech

and 42 U.S.C. § 1983.



COUNT FOUR

FIFTH AMENDMENT



52. Defendants’ actions against Plaintiff constitute a violation of Fifth

Amendment to the United States Constitution.



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COUNT FIVE

FOURTH AMENDMENT



55. Defendants’ actions against Plaintiff constitute a violation of the Fourth

Amendment to the United States Constitution.



COUNT SIX

FEDERAL PREEMPTION & UNAUTHORIZED OR SUPERVISED FEDERAL

IMMIGRATION CONDUCT

(8 U.S.C. § 1357)



58. Defendants’ actions against Plaintiff constitute a violation of 8 U.S.C. §

1357, Subsection 287(g)(1) and (5) as the City of Tucson has no authorization or

agreement with the United States to perform any immigration inquiries of any

persons present in the United States.

59. As a direct and proximate result of the conduct of Defendants, Plaintiff


DECLARATORY JUDGMENT

(28 U.S.C. § 2201)



61. Plain seeks a declaratory judgment as provided in 28 U.S.C. § 2201

et.seq.

//


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V. PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays:

1. That this court declare the actions complained of herein to be in violation

of 42 U.S.C. § 1983, the First, Fourth, Fifth and Fourteenth Amendments to the

United States Constitution.

2. That Defendants’ be ordered to take appropriate injunctive and affirmative

acts to insure that the actions complained of herein are not engaged in again by

them or any of its agents.

3. That Defendants’, including the officers, director, agents, employees and

successors be permanently enjoined from engaging any immigration stops,

questioning, detention, citing or any law enforcement activity reserved to the

federal government.

4. That Plaintiff be awarded his attorneys' fees;

5. That Plaintiff be awarded his costs; and

6. That Plaintiff be awarded all other relief that this court deems just and

proper under the circumstances.

DATED this 28th day of April 2009.

s/Richard M. Martinez, Esq. Richard M. Martinez, Esq.Counsel for Plaintiff


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Tony WestAssistant Attorney GeneralDennis K. BurkeUnited States AttorneyArthur R. GoldbergAssistant Director, Federal Programs BranchVaru Chilakamarri (NY Bar #4324299)Joshua Wilkenfeld (NY Bar #4440681)U.S. Department of Justice, Civil Division20 Massachusetts Avenue, N.W.Washington, DC 20530Tel. (202) 616-8489/Fax (202) [email protected] for the United States

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

The United States of America,

Plaintiff,

v.

The State of Arizona; and Janice K. Brewer,Governor of the State of Arizona, in herOfficial Capacity,

Defendants.

No. ________________

COMPLAINT

Plaintiff, the United States of America, by its undersigned attorneys, brings this civil

action for declaratory and injunctive relief, and alleges as follows:

INTRODUCTION

1. In this action, the United States seeks to declare invalid and preliminarily and

permanently enjoin the enforcement of S.B. 1070, as amended and enacted by the State of

Arizona, because S.B. 1070 is preempted by federal law and therefore violates the

Supremacy Clause of the United States Constitution.

2. In our constitutional system, the federal government has preeminent authority to

regulate immigration matters. This authority derives from the United States Constitution and

numerous acts of Congress. The nation’s immigration laws reflect a careful and considered

Case 2:10-cv-01413-NVW Document 1 Filed 07/06/10 Page 1 of 25

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balance of national law enforcement, foreign relations, and humanitarian interests. Congress

has assigned to the United States Department of Homeland Security, Department of Justice,

and Department of State, along with other federal agencies, the task of enforcing and

administering these immigration-related laws. In administering these laws, the federal

agencies balance the complex – and often competing – objectives that animate federal

immigration law and policy. Although states may exercise their police power in a manner

that has an incidental or indirect effect on aliens, a state may not establish its own

immigration policy or enforce state laws in a manner that interferes with the federal

immigration laws. The Constitution and the federal immigration laws do not permit the

development of a patchwork of state and local immigration policies throughout the country.

3. Despite the preeminent federal authority and responsibility over immigration, the

State of Arizona recently enacted S.B. 1070, a sweeping set of provisions that are designed

to “work together to discourage and deter the unlawful entry and presence of aliens” by

making “attrition through enforcement the public policy of all state and local government

agencies in Arizona.” See S.B. 1070 (as amended by H.B. 2162). S.B. 1070’s provisions,

working in concert and separately, seek to deter and punish unlawful entry and presence by

requiring, whenever practicable, the determination of immigration status during any lawful

stop by the police where there is “reasonable suspicion” that an individual is unlawfully

present, and by establishing new state criminal sanctions against unlawfully present aliens.

The mandate to enforce S.B. 1070 to the fullest extent possible is reinforced by a provision

allowing for any legal resident of Arizona to collect money damages by showing that “any

official or agency . . . [has] adopt[ed] or implement[ed] a policy” that “limits or restricts the

enforcement of federal immigration laws . . . to less than the full extent permitted by federal

law.”

4. S.B. 1070 pursues only one goal – “attrition” – and ignores the many other

objectives that Congress has established for the federal immigration system. And even in

pursuing attrition, S.B. 1070 disrupts federal enforcement priorities and resources that focus

on aliens who pose a threat to national security or public safety. If allowed to go into effect,

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S.B. 1070’s mandatory enforcement scheme will conflict with and undermine the federal

government’s careful balance of immigration enforcement priorities and objectives. For

example, it will impose significant and counterproductive burdens on the federal agencies

charged with enforcing the national immigration scheme, diverting resources and attention

from the dangerous aliens who the federal government targets as its top enforcement priority.

It will cause the detention and harassment of authorized visitors, immigrants, and citizens

who do not have or carry identification documents specified by the statute, or who otherwise

will be swept into the ambit of S.B. 1070’s “attrition through enforcement” approach. It will

conflict with longstanding federal law governing the registration, smuggling, and

employment of aliens. It will altogether ignore humanitarian concerns, such as the

protections available under federal law for an alien who has a well-founded fear of

persecution or who has been the victim of a natural disaster. And it will interfere with vital

foreign policy and national security interests by disrupting the United States’ relationship

with Mexico and other countries.

5. The United States understands the State of Arizona’s legitimate concerns about

illegal immigration, and has undertaken significant efforts to secure our nation’s borders.

The federal government, moreover, welcomes cooperative efforts by states and localities to

aid in the enforcement of the nation’s immigration laws. But the United States Constitution

forbids Arizona from supplanting the federal government’s immigration regime with its own

state-specific immigration policy – a policy that, in purpose and effect, interferes with the

numerous interests the federal government must balance when enforcing and administering

the immigration laws and disrupts the balance actually established by the federal

government. Accordingly, S.B. 1070 is invalid under the Supremacy Clause of the United

States Constitution and must be struck down.

JURISDICTION AND VENUE

6. This action arises under the Constitution of the United States, Article VI, Clause

2 and Article I, Section 8, and the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1101, et seq. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331

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and 1345, and the United States seeks remedies under 28 U.S.C. §§ 1651, 2201, and 2202.

7. Venue lies in the District of Arizona pursuant to 28 U.S.C. § 1391(b). Defendants

are the Governor of Arizona, who resides in Arizona, and the State of Arizona. A substantial

part of the events or omissions giving rise to this claim occurred in Arizona.

PARTIES

8. The United States of America is the plaintiff in this action, suing on its own behalf,

as well as on behalf of the United States Department of Homeland Security (“DHS”), the

Department of Justice (“DOJ”), and the Department of State.

9. DHS is an executive department of the United States. See Homeland Security Act,

Pub. L. No. 107-296, 116 Stat. 2135 (2002). DHS is responsible for the administration and

enforcement of laws relating to immigration, as well as the investigation of immigration

crimes and protection of the United States border against the illegal entry of aliens. See 8

U.S.C. § 1103. DHS is also responsible for providing citizenship and immigration services

through U.S. Citizenship and Immigration Services.

10. DOJ is an executive department of the United States. See Act to Establish the

Department of Justice, ch. 150, 16 Stat. 162 (1870). The Attorney General, as the head of

DOJ, shares certain immigration-related responsibilities with the Secretary of Homeland

Security, and he may, among his various immigration functions, order aliens removed from

the United States and order the cancellation of removal. See, e.g., 8 U.S.C. §§ 1103, 1158,

1182, 1227, 1229a, 1229b.

11. The Department of State is an executive department of the United States. See

State Department Basic Authorities Act of 1956, Pub. L. No. 84-885, as amended; 22 U.S.C.

§ 2651 et seq. The Department of State is partially responsible for administering aspects of

the federal immigration laws, including but not limited to the administration of visas.

12. Defendant, the State of Arizona, is a state of the United States that entered the

Union as the 48th State in 1912.

13. Defendant, Janice K. Brewer, is the Governor of Arizona, and is being sued in her

official capacity.

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STATEMENT OF THE CLAIM

Federal Authority and Law Governing Immigration and Status of Aliens

14. The Supremacy Clause of the Constitution mandates that “[t]his Constitution, and

the Laws of the United States which shall be made in Pursuance thereof . . . shall be the

supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. Const., art. VI, cl. 2.

15. The Constitution affords the federal government the power to “establish an

uniform Rule of Naturalization,” U.S. Const., art. I § 8, cl. 4, and to “regulate Commerce

with foreign Nations,” U.S. Const., art. I § 8, cl. 3. Further, the federal government has broad

authority to establish the terms and conditions for entry and continued presence in the United

States, and to regulate the status of aliens within the boundaries of the United States.

16. The Constitution affords the President of the United States the authority to “take

Care that the Laws be faithfully executed.” U.S. Const., art. II § 3. Further, the President

has broad authority over foreign affairs. Immigration law, policy, and enforcement priorities

are affected by and have impacts on U.S. foreign policy, and are themselves the subject of

diplomatic arrangements.

17. Congress has exercised its authority to make laws governing immigration and the

status of aliens within the United States by enacting the various provisions of the INA and

other laws regulating immigration. Through the INA, Congress set forth the framework by

which the federal government determines which aliens may be eligible to enter and reside

in the United States, which aliens may be removed from the United States, the consequences

for unlawful presence, the penalties on persons who violate the procedures established for

entry, conditions of residence, and employment of aliens, as well as the process by which

certain aliens may ultimately become naturalized citizens of the United States. See 8 U.S.C.

§ 1101, et seq. The INA also vests the executive branch with considerable discretion in

enforcing the provisions of the federal immigration laws, generally allowing federal agencies

to ultimately decide whether particular immigration remedies are appropriate in individual

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cases.

18. In exercising its significant enforcement discretion, the federal government

prioritizes for arrest, detention, prosecution, and removal those aliens who pose a danger to

national security or a risk to public safety. Consistent with these enforcement priorities, the

federal government principally targets aliens engaged in or suspected of terrorism or

espionage; aliens convicted of crimes, with a particular emphasis on violent criminals, felons,

and repeat offenders; certain gang members; aliens subject to outstanding criminal warrants;

and fugitive aliens, especially those with criminal records.

19. In crafting federal immigration law and policy, Congress has necessarily taken

into account multiple and often competing national interests. Assuring effective enforcement

of the provisions against illegal migration and unlawful presence is a highly important

interest, but it is not the singular goal of the federal immigration laws. The laws also take

into account other uniquely national interests, including facilitating trade and commerce;

welcoming those foreign nationals who visit or immigrate lawfully and ensuring their fair

and equitable treatment wherever they may reside; responding to humanitarian concerns at

the global and individual levels; and otherwise ensuring that the treatment of aliens present

in our nation does not harm our foreign relations with the countries from which they come

or jeopardize the treatment of U.S. citizens abroad. Because immigration control and

management is “a field where flexibility and the adaptation of the congressional policy to

infinitely variable conditions constitute the essence of the program,” U.S. ex rel. Knauff v.

Shaughnessy, 338 U.S. 537, 543 (1950) (internal citations omitted), Congress vested

substantial discretion in the President and the administering federal agencies to adjust the

balance of these multiple interests as appropriate – both globally and in individual cases.

20. Congress has tasked DHS and DOJ with overseeing significant portions of the

United States’ immigration interests, and has provided each with specific powers to promote

the various goals of the federal immigration scheme and to enforce the federal immigration

authority under the INA. See 8 U.S.C. § 1103. The Department of State is also empowered

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by the INA to administer aspects of the federal immigration laws, including visa programs.

See, e.g., 8 U.S.C. § 1104. DHS may generally order an alien immediately removed where

the alien either fails to present the appropriate documentation or commits fraud at the time

of the alien’s inspection. DHS may also place an alien into removal proceedings, and may

ultimately remove an alien who entered the United States unlawfully or violated the

conditions of his admission. See 8 U.S.C. §§ 1182, 1225, 1227, 1228(b), 1229, 1229a, 1231.

DOJ may order an alien removed for many reasons, including if the alien has stayed in the

United States longer than permitted or has engaged in certain unlawful conduct. See 8 U.S.C.

§§ 1227, 1229a. In addition to removal, the statute authorizes DHS and DOJ to employ civil

and criminal sanctions against an alien for immigration violations, such as unlawful entry,

failing to appropriately register with the federal government, and document fraud. See, e.g.,

8 U.S.C. §§ 1325, 1306, 1324c. However, in the exercise of discretion, the administering

agencies may decide not to apply a specific sanction and may, among other steps, permit the

alien to depart the country voluntarily at his or her own expense and may even decide not to

pursue removal of the alien if deferred federal enforcement will help pursue some other goal

of the immigration system. See 8 U.S.C. § 1229c.

21. Under federal law, both DHS and DOJ may, for humanitarian or other reasons,

decline to exercise certain immigration sanctions or grant an otherwise unlawfully present

or removable alien an immigration benefit – and potentially adjust that alien’s immigration

status – if the alien meets certain conditions. See, e.g., 8 U.S.C. § 1158 (providing asylum

eligibility for aliens who have a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion, if removed); 8

U.S.C. § 1254a (providing temporary protected status for otherwise eligible nationals of a

foreign state that the Secretary of Homeland Security has specially designated as undergoing

ongoing armed conflict, a natural disaster, or another extraordinary circumstance); 8 U.S.C.

§ 1227(a)(1)(E)(iii) (providing discretion to waive ground of deportability “for humanitarian

purposes, to assure family unity, or when it is otherwise in the public interest” for aliens who

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are otherwise deportable for encouraging unlawful entry of an immediate family member);

8 U.S.C. § 1229b (granting the Attorney General discretion to cancel removal for certain

aliens). DHS also has the authority to permit aliens, including those who would be

inadmissible, to temporarily enter the United States for “urgent humanitarian reasons” or

“significant public benefit.” 8 U.S.C. § 1182(d)(5). DHS may also refrain from enforcement

actions, in appropriate circumstances, against persons unlawfully present in the United

States. See 8 C.F.R. § 274a.12(c)(14) (discussing deferred action).

22. In light of these statutory provisions, DHS and DOJ exercise discretion with

respect to, among other things, whether to allow an unlawfully present alien to voluntarily

depart, whether to place an alien into removal proceedings, whether to exact criminal

sanctions on an alien who has committed an immigration violation, whether to allow an

unlawfully present alien to remain in the country without physical detention, and whether to

grant an alien humanitarian or some other form of relief. Decisions to forego removal or

criminal penalties result not only from resource constraints, but also from affirmative policy

considerations – including humanitarian and foreign policy interests – established by

Congress and balanced by the executive branch.

23. Congress, which holds exclusive authority for establishing alien status categories

and setting the conditions of aliens’ entry and continued presence, has affirmatively decided

that unlawful presence – standing alone – should not subject an alien to criminal penalties

and incarceration although unlawful presence may subject the alien to the civil remedy of

removal. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)&(C). However, unlawful

presence becomes an element of a criminal offense when an alien is found in the United

States after having been previously removed or after voluntarily departing from the United

States while a removal order was pending. See 8 U.S.C. § 1326. Further, unlawful entry into

the United States is a criminal offense, see 8 U.S.C. § 1325. Congress specifically

authorized federal immigration officers to patrol the United States border, as well as search

vehicles and lands near the border, to prevent aliens from unlawfully entering the United

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States, and it empowered these officers to arrest an alien who is seen attempting unlawful

entry at the border or who the officer has reason to believe has unlawfully entered the county

and is likely to escape before a warrant can be obtained. See 8 U.S.C. § 1357.

24. Congress has created a comprehensive alien registration system for monitoring

the entry and movement of aliens within the United States. See 8 U.S.C. §§ 1201, 1301-

1306; see also 8 C.F.R. Part 264 (regulations regarding “Registration and Fingerprinting of

Aliens in the United States”). Under this federal alien registration system, aliens seeking to

enter the United States, either permanently or temporarily (other than diplomatic and official

visitors), must be registered by the Department of State at the time of visa application. See

8 U.S.C. §§ 1201(b), 1301, 1302. Any alien who is 14 or over, who has not otherwise been

registered and fingerprinted under the INA, and who remains in the United States for 30 days

or longer, must apply to be registered and fingerprinted by DHS. See 8 U.S.C. § 1302(a).

The INA provides that any alien who is required to apply for registration and willfully fails

to do so may be fined and imprisoned not more than six months. See 8 U.S.C. § 1306(a); 18

U.S.C. § 3571. Aliens are required to report their change of address to DHS within ten days

of such change. See 8 U.S.C. § 1305.

25. As part of this federal alien registration system, Congress further specified the

content of the registration forms, see 8 U.S.C. § 1303, what special circumstances may

require deviation, id., and the confidential nature of registration information, see 8 U.S.C.

§ 1304. Aliens who are 18 years and older are required to carry in their possession their

certificate of alien registration or alien registration receipt card. See 8 U.S.C. § 1304(e). The

INA provides that any alien who fails to comply with this requirement may be fined and

imprisoned not more than 30 days. See id.; 18 U.S.C. § 3571.

26. However, there are several circumstances in which an alien would not be

provided with evidence of registration notwithstanding the federal government’s knowledge

of the alien’s presence. Federal law provides a variety of humanitarian options for aliens –

including unlawfully present aliens – who have been victimized or fear persecution or

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violence, including but not limited to asylum, special visas for victims of trafficking, and

special visas for victims of violent crime. In order to qualify for such programs an alien

needs to apply and satisfy the criteria that the program at issue requires. During the

pendency of the application process, an alien may not have evidence of registration even

though the federal government is aware of the alien’s presence, has decided against removing

the alien, and certainly has no interest in prosecuting the alien for a crime. These

humanitarian programs demonstrate that one aspect of federal immigration policy is to assist

and welcome such victims in the United States, notwithstanding possible temporary unlawful

presence. It would therefore violate federal policy to prosecute or detain these types of aliens

on the basis of their immigration status – which is often known to the federal government

and, for affirmative policy reasons, not used as the basis for a removal proceeding or criminal

prosecution.

27. Congress has further exercised its authority over the entry and movement of aliens

by criminalizing the smuggling of unlawful aliens into the country, as well as the facilitation

of unlawful immigration within the nation’s borders. See 8 U.S.C. § 1324. Specifically,

federal law prohibits the knowing attempt to bring an alien into the United States “at a place

other than a designated port of entry or place other than as designated by the [Secretary of

Homeland Security],” 8 U.S.C. § 1324(a)(1)(A)(i), and imposes criminal penalties on a

person who, “knowing or in reckless disregard” of the fact that an alien has unlawfully

entered or remained in the United States, attempts to “transport or move” the alien within the

United States “in furtherance of such violation of law.” 8 U.S.C. § 1324(a)(1)(A)(ii). These

criminal sanctions are directed at the smuggler and are not meant to serve as a criminal

sanction for the unlawfully present alien or for incidental transportation. Congress chose not

to penalize an unlawfully present alien’s mere movement within the country or across state

lines unless other factors are present, nor do the federal immigration laws penalize the

provision of transportation services in such situations.

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28. Federal law also imposes criminal penalties on a person who, “conceals, harbors,

or shields from detection,” an alien in “knowing or in reckless disregard” of the fact that the

alien has unlawfully entered or remained in the United States. 8 U.S.C. § 1324(a)(1)(A)(iii).

Similarly, it is unlawful to “encourage[] or induce[] an alien to come to, enter, or reside in

the United States, knowing or in reckless disregard of the fact that” such entry or residence

will be in violation of the law. 8 U.S.C. § 1324(a)(1)(A)(iv). Federal law does not, as a

general matter, restrict the movement of aliens – whether lawfully or unlawfully present –

between different states. Federal law additionally exempts from certain of these prohibitions

religious organizations which “encourage, invite, call, allow, or enable” an alien to volunteer

as a minister or missionary, and which provide the alien with basic living expenses. 8 U.S.C.

§ 1324(a)(1)(C).

29. Congress has further exercised its authority over immigration and the status of

aliens by prohibiting the hiring of aliens not authorized to work in the United States. 8

U.S.C. § 1324a(a)(1). Specifically, federal law makes it unlawful “to hire, or to recruit or

refer for a fee” an alien, knowing that the alien is not authorized to work in the United States.

Id. Federal law also makes it “unlawful for a person or other entity, after hiring an alien for

employment,” to “continue to employ the alien in the United States knowing the alien is (or

has become) an unauthorized alien with respect to such employment.” 8 U.S.C.

§ 1324a(a)(2). In addition, Congress established civil penalties for immigration-related

document fraud, such as the presentation of fraudulent documents to demonstrate work

eligibility. 8 U.S.C. § 1324c. In enacting penalties on employers of unlawful aliens, as well

as on unlawful aliens who engage in document fraud, Congress chose not to impose criminal

penalties on aliens for solely seeking or obtaining employment in the United States without

authorization and in fact decided that criminal sanctions for seeking or obtaining employment

would run counter to the purposes of the immigration system. Although unlawfully present

aliens may be subject to removal, no criminal penalty attaches simply because an alien has

solicited or performed work without proper authorization.

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30. DHS is primarily charged with administering and enforcing the INA and other

laws relating to immigration, which it accomplishes mainly through its components, U.S.

Immigration and Customs Enforcement (“ICE”), U.S. Customs and Border Protection

(“CBP”), and U.S. Citizenship and Immigration Services (“USCIS”). See 8 U.S.C. § 1103.

DHS also receives state and local cooperation in its enforcement efforts. See 8 U.S.C.

§ 1357(g). In addition, Congress prescribed by statute a number of ways in which states may

assist the federal government in its enforcement of the immigration laws. See, e.g., 8 U.S.C.

§ 1103(a)(10) (authorizing DHS to empower state or local law enforcement with immigration

enforcement authority when an “actual or imminent mass influx of aliens . . . presents urgent

circumstances requiring an immediate Federal response”); 8 U.S.C. § 1357(g)(1)–(9)

(authorizing DHS to enter into agreements to provide appropriately trained and supervised

state and local officers with the authority to perform functions related to the investigation,

apprehension, and detention of aliens); 8 U.S.C. § 1373(a)-(b) (preempting state and local

laws that prohibit information-sharing between local law enforcement and federal

immigration authorities and proscribing such a prohibition); 8 U.S.C. § 1252c (authorizing

state and local law enforcement to arrest aliens who are unlawfully present in the United

States and were previously removed after being convicted of a felony in the United States).

31. Through a variety of programs, DHS works cooperatively with states and

localities to accomplish its mission to enforce the federal immigration laws. Among these

efforts is the Law Enforcement Agency Response program (“LEAR”), an Arizona-specific

program that is operational 24 hours a day, 7 days a week, for responding to calls from state

and local law enforcement officers seeking assistance from ICE regarding suspected

unlawfully present aliens. ICE also administers the Law Enforcement Support Center

(“LESC”), also operational 24 hours a day, 7 days a week, which serves as a national

enforcement operations center and – among other responsibilities – promptly provides

immigration status and identity information to local, state, and federal law enforcement

agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.

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Further, ICE and CBP officers respond to requests from state and local law enforcement

officers on a variety of immigration matters, including assisting with translation, determining

alienage, and evaluating immigration documentation.

32. But the opportunity that federal law provides for participation by state and local

officials does not mean that states can enact their own immigration policies to rival the

national immigration policy; the formulation of immigration policy and balancing of

immigration enforcement priorities is a matter reserved for the federal government. Such

regulations do not fall within the state’s traditional police powers and remain the exclusive

province of the federal government.

Arizona’s S.B. 1070

33. On April 23, 2010, Governor Brewer signed into law S.B. 1070, which contains

several provisions designed to “work together to discourage and deter the unlawful entry and

presence of aliens” in Arizona by making “attrition through enforcement the public policy

of all state and local government agencies in Arizona.” S.B. 1070 includes a provision that

requires, in the context of a lawful stop, detention, or arrest, the verification of an

individual’s immigration status when practicable where there is “reasonable suspicion” that

the individual is unlawfully present in the United States (Section 2). This mandatory

provision is reinforced through the creation of a private right of action, which allows any

legal resident of Arizona to collect money damages if he can show that “any official or

agency . . . [has] adopt[ed] or implent[ed] a policy” that “limits or restricts the enforcement

of federal immigration laws . . . to less than the full extent permitted by federal law” (Section

2). S.B. 1070 also creates or amends several state law criminal provisions, which impose

criminal penalties for an alien’s failure to federally register or carry his federal registration

documents (Section 3), for the so-called smuggling, transporting, or harboring of an

unlawfully present alien (Sections 4 and 5), for encouraging an unlawfully present alien to

move to Arizona (Section 5), and for an unauthorized alien’s attempt to seek work (Section

5). Further, S.B. 1070 provides law enforcement officers with authority to make warrantless

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arrests of any person whom they have probable cause to believe has committed a public

offense that would make the person “removable,” regardless of where the offense was

committed (Section 6).

34. On the same day that she signed S.B. 1070 into law, Governor Brewer issued an

executive order requiring law enforcement training to “provide clear guidance to law

enforcement officials regarding what constitutes reasonable suspicion,” and to “make clear

that an individual’s race, color or national origin alone cannot be grounds for reasonable

suspicion to believe any law has been violated.” Arizona State Executive Order 2010-09

(Apr. 23, 2010).

35. One week after S.B. 1070 was signed into law, the Arizona Legislature passed,

and Governor Brewer signed, H.B. 2162, which amended S.B. 1070. H.B. 2162 made

modifications to S.B. 1070 for the purpose of responding to those who “expressed fears that

the original law would somehow allow or lead to racial profiling.” Statement by Governor

Jan Brewer (Apr. 30, 2010), available at http://azgovernor.gov/dms/upload/PR_043010_

StatementGovBrewer.pdf.

36. S.B. 1070 (as amended) attempts to second guess federal policies and re-order

federal priorities in the area of immigration enforcement and to directly regulate immigration

and the conditions of an alien’s entry and presence in the United States despite the fact that

those subjects are federal domains and do not involve any legitimate state interest. Arizona’s

adoption of a maximal “attrition through enforcement” policy disrupts the national

enforcement regime set forth in the INA and reflected in federal immigration enforcement

policy and practice, including the federal government’s prioritization of enforcement against

dangerous aliens. S.B. 1070 also interferes with U.S. foreign affairs priorities and rejects any

concern for humanitarian interests or broader security objectives, and will thus harm a range

of U.S. interests. Thus, because S.B. 1070 attempts to set state-specific immigration policy,

it legislates in an area constitutionally reserved to the federal government, conflicts with the

federal immigration laws and federal immigration policy, conflicts with foreign policy, and

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impedes the accomplishment and execution of the full purposes and objectives of Congress,

and is therefore preempted.

37. S.B. 1070 implements Arizona’s stated immigration policy through a novel and

comprehensive immigration regime that, among other things, creates a series of state

immigration crimes (Sections 3-5) relating to the presence, employment, and transportation

of aliens, expands the opportunities for Arizona police to push aliens toward incarceration

for those crimes by enforcing a mandatory immigration status verification system (Section

2), and allows for arrests based on crimes with no nexus to Arizona (Section 6). By pursuing

attrition and ignoring every other objective embodied in the federal immigration system

(including the federal government’s prioritization of the removal of dangerous aliens), S.B.

1070 conflicts with and otherwise stands as an obstacle to Congress’s demand that federal

immigration policy accommodate the competing interests of immigration control, national

security and public safety, humanitarian concerns, and foreign relations – a balance

implemented through the policies of the President and various executive officers with the

discretion to enforce the federal immigration laws. See 8 U.S.C. § 1101, et seq.

Enforcement of S.B. 1070 would also effectively create state crimes and sanctions for

unlawful presence despite Congress’s considered judgment to not criminalize such status.

S.B. 1070 would thus interfere with federal policy and prerogatives in the enforcement of the

U.S. immigration laws.

38. Because S.B. 1070, in both its singularly stated purpose and necessary operation,

conflicts with the federal government’s balance of competing objectives in the enforcement

of the federal immigration laws, its passage already has had foreign policy implications for

U.S. diplomatic relations with other countries, including Mexico and many others. S.B. 1070

has also had foreign policy implications concerning specific national interests regarding

national security, drug enforcement, tourism, trade, and a variety of other issues. See,

e.g.,Travel Alert, Secretaría de Relaciones Exteriores, Mexico, Apr. 27, 2010, available at

http://www.sre.gob.mx/csocial/contenido/comunicados/2010/abr/ /cp_121eng.html; Mexican

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President Calderon’s Address to Joint Meeting of Congress, May 20, 2010, available at

http://www.c-spanvideo.org/program/293616-2. S.B. 1070 has subjected the United States

to direct criticism by other countries and international organizations and has resulted in a

breakdown in certain planned bilateral and multilateral arrangements on issues such as border

security and disaster management. S.B. 1070 has in these ways undermined several aspects

of U.S. foreign policy related to immigration issues and other national concerns that are

unrelated to immigration.

39. Numerous other states are contemplating passing legislation similar to S.B. 1070.

The development of various conflicting state immigration enforcement policies would result

in further and significant damage to (1) U.S. foreign relations, (2) the United States’ ability

to fairly and consistently enforce the federal immigration laws and provide immigration-

related humanitarian relief, and (3) the United States’ ability to exercise the discretion vested

in the executive branch under the INA, and would result in the non-uniform treatment of

aliens across the United States.

Section 2 of S.B. 1070

40. Section 2 of S.B. 1070 (adding Ariz. Rev. Stat. 11-1051) mandates that for any

lawful “stop, detention or arrest made by a law enforcement official” (or agency) in the

enforcement of any state or local law, including civil ordinances, where reasonable suspicion

exists that an individual is an alien and is “unlawfully present” in the United States, the

officer must make a reasonable attempt to determine the individual’s immigration status

when practicable, and to verify it with the federal government pursuant to 8 U.S.C. § 1373(c)

or through a federally qualified law enforcement officer. Section 2 also requires that “[a]ny

person who is arrested shall have the person’s immigration status determined before the

person is released.”

41. Section 2 provides that any legal resident of Arizona may bring a civil action in

an Arizona court to challenge any official or agency that “adopts or implements a policy that

limits or restricts the enforcement of federal immigration laws . . . to less than the full extent

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permitted by federal law.” Whereas Arizona police (like federal officers and police in other

states) formerly had the discretion to decide whether to verify immigration status during the

course of a lawful stop, the combination of the verification requirement and the threat of

private lawsuits now removes such discretion and mandates verification. This provision also

mandates the enforcement of the remaining provisions of S.B. 1070.

42. The mandatory nature of Section 2, in tandem with S.B. 1070’s new or amended

state immigration crimes, directs officers to seek maximum scrutiny of a person’s

immigration status, and mandates the imposition of state criminal penalties for what is

effectively unlawful presence, even in circumstances where the federal government has

decided not to impose such penalties because of federal enforcement priorities or

humanitarian, foreign policy, or other federal interests.

43. In addition, the mandatory nature of this alien inspection scheme will necessarily

result in countless inspections and detentions of individuals who are lawfully present in the

United States. Verification is mandated for all cases where an Arizona police officer has a

“reasonable suspicion” that a person in a lawful stop is unlawfully present and it is

practicable to do so. But a “reasonable suspicion” is not definitive proof, and will often

result in the verification requirement being applied – wholly unnecessarily – to lawfully

present aliens and United States citizens. Further, because the federal authorities may not

be able to immediately verify lawful presence – and may rarely have information related to

stopped U.S. citizens – Section 2 will result in the prolonged detention of lawfully present

aliens and United States citizens. Section 2 of S.B. 1070 will therefore impose burdens on

lawful immigrants and U.S. citizens alike who are stopped, questioned, or detained and

cannot readily prove their immigration or citizenship status, including those individuals who

may not have an accepted form of identification because, for example, they are legal minors

without a driver’s license. Arizona’s alien inspection scheme therefore will subject lawful

aliens to the “possibility of inquisitorial practices and police surveillance,” Hines v.

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Davidowitz, 312 U.S. 52, 74 (1941) – a form of treatment which Congress has plainly

guarded against in crafting a balanced, federally-directed immigration enforcement scheme.

44. Mandatory state alien inspection schemes and attendant federal verification

requirements will impermissibly impair and burden the federal resources and activities of

DHS. S.B. 1070’s mandate for verification of alien status will necessarily result in a

dramatic increase in the number of verification requests being issued to DHS, and will

thereby place a tremendous burden on DHS resources, necessitating a reallocation of DHS

resources away from its policy priorities. As such, the federal government will be required

to divert resources from its own, carefully considered enforcement priorities – dangerous

aliens who pose a threat to national security and public safety – to address the work that

Arizona will now create for it. Such interference with federal priorities, driven by state-

imposed burdens on federal resources, constitutes a violation of the Supremacy Clause.

45. Section 2 conflicts with and otherwise stands as an obstacle to the full purposes

and objectives of Congress, and its enforcement would further conflict with the enforcement

prerogatives and priorities of the federal government. Moreover, Section 2 does not promote

any legitimate state interest.


46. Section 3 of S.B. 1070 (adding Ariz. Rev. Stat. 13-1509) makes it a new state

criminal offense for an alien in Arizona to violate 8 U.S.C. § 1304(e), which requires every

alien to “at all times carry with him and have in his personal possession any certificate of

alien registration or alien registration receipt card issued to him,” or 8 U.S.C. § 1306(a),

which penalizes the willful failure to apply for registration when required. Section 3 of S.B.

1070 provides a state penalty of up to $100 and up to twenty days imprisonment for a first

offense and thirty days imprisonment for any subsequent violation.

47. Section 3 of S.B. 1070 is preempted by the comprehensive federal alien

registration scheme – including 8 U.S.C. §§ 1201, 1301-1306, and 8 C.F.R. Part 264 – which

provides a “standard for alien registration in a single integrated and all-embracing system.”

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Hines, 312 U.S. at 73. Section 3 of S.B. 1070 conflicts with and otherwise stands as an

obstacle to the full purposes and objectives of Congress in creating a uniform and singular

federal alien registration scheme.

48. Section 3 – the enforcement of which S.B. 1070 effectively mandates through

operation of Section 2’s alien inspection and verification regime – demands the arrest and

prosecution of all aliens who do not have certain enumerated registration documents. But

several classes of aliens who are eligible for humanitarian relief are simply not provided with

registration documents while their status is being adjudicated by the federal government,

notwithstanding the federal government’s knowledge that these aliens are present in the

United States. S.B. 1070 thus seeks to criminalize aliens whose presence is known and

accepted by the federal government (at least during the pendency of their status review) and

thereby conflicts with and otherwise stands as an obstacle to the full purposes and objectives

of Congress in providing certain forms of humanitarian relief.

49. Additionally, Section 3 of S.B. 1070 is a key part of Arizona’s new immigration

policy as it is tantamount to a regulation of immigration, in that it seeks to control the

conditions of an alien’s entry and presence in the United States without serving any

traditional state police interest. Accordingly, Section 3 of S.B. 1070 is preempted by the

federal government’s recognized exclusive authority over the regulation of immigration.

Section 4 of S.B. 1070/Ariz. Rev. Stat. 13-2319

50. Section 4 of S.B. 1070 amended Ariz. Rev. Stat. 13-2319 (collectively,

“Arizona’s alien smuggling prohibition”). Arizona’s alien smuggling prohibition makes it

a felony for “a person to intentionally engage in the smuggling of human beings for profit

or commercial purpose.” Ariz. Rev. Stat. 13-2319. The statute defines “smuggling of human

beings” as the “transportation, procurement of transportation or use of property . . . by a

person or an entity that knows or has reason to know that the person or persons transported

. . . are not United States citizens, permanent resident aliens or persons otherwise lawfully

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in this state or have attempted to enter, entered or remained in the United States in violation

of law.” Id. § 13-2319(E).

51. Arizona’s alien smuggling prohibition is preempted by federal law, including 8

U.S.C. § 1324. There are several key differences between the federal and Arizona alien

smuggling provisions that demonstrate that Arizona’s alien smuggling prohibition actually

regulates conditions of unlawful presence and not smuggling at all. First, Arizona’s alien

smuggling law, unlike the federal criminal provisions, is not limited to transportation that is

provided “in furtherance” of unlawful immigration, but instead prohibits the knowing

provision of any commercial transportation services to an alien unlawfully present in the

United States. Ariz. Rev. Stat. 13-2319(A). Second, unlike federal law, Arizona’s alien

smuggling law not only criminalizes the conduct of the transportation provider but has been

used, in conjunction with Arizona’s conspiracy statute, to prosecute the unlawfully present

alien. Third, Arizona’s smuggling provision is not targeted at smuggling across the United

States’ international borders. As a result of these differences, taken both separately and in

tandem, Arizona’s smuggling prohibition regulates the conditions of an alien’s entry and

continued presence in the United States, by essentially banning an unlawfully present alien

from using commercial transportation. Although a state is free, in certain instances, to

regulate conduct that is not regulated by the federal government, the differences between

Section 4 and federal anti-smuggling law convert Arizona’s alien smuggling prohibitions into

a preempted regulation of immigration. Additionally, Arizona’s smuggling prohibition will

result in special, impermissible burdens for lawfully present aliens, who will predictably be

impeded from using commercial transportation services due to the strictures of Section 4.

Arizona’s smuggling prohibition thus conflicts with and otherwise stands as an obstacle to

the full purposes and objectives of Congress in creating a comprehensive system of penalties

for aliens who are unlawfully present in the United States.


52. Section 5 of S.B. 1070 adds two new provisions to Arizona’s revised code:

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Ariz. Rev. Stat. 13-2928 and Ariz. Rev. Stat. 13-2929.

53. Ariz. Rev. Stat. 13-2928 makes it a new state crime for any person who is

“unauthorized” and “unlawfully present” in the United States to solicit, apply for, or perform

work. S.B. 1070, Section 5(C)-(E).

54. Arizona’s new prohibition on unauthorized aliens seeking or performing work is

preempted by the comprehensive federal scheme of sanctions related to the employment of

unauthorized aliens – including 8 U.S.C. §§ 1324a–1324c. The text, structure, history, and

purpose of this scheme reflect an affirmative decision by Congress to regulate the

employment of unlawful aliens by imposing sanctions on the employer without imposing

sanctions on the unlawful alien employee. Arizona’s criminal sanction on unauthorized

aliens stands as an obstacle to the full purposes and objectives of Congress’s considered

approach to regulating employment practices concerning unauthorized aliens, and it conflicts

with Congress’s decision not to criminalize such conduct for humanitarian and other reasons.

Enforcement of this new state crime additionally interferes with the comprehensive system

of civil consequences for aliens unlawfully present in the United States by attaching criminal

sanctions on the conditions of unlawful presence, despite an affirmative choice by Congress

not to criminalize unlawful presence.

55. Ariz. Rev. Stat. 13-2929 makes it a new state crime for a person committing any

criminal offense to (1) “transport . . . an alien . . . , in furtherance of the illegal presence of

the alien in the United States, . . . if the person knows or recklessly disregards” that the alien

is here illegally; (2) “conceal, harbor or shield . . . an alien from detection . . . if the person

knows or recklessly disregards the fact that the alien” is unlawfully present; or (3)

“encourage or induce an alien to come to or reside in this state if the person knows or

recklessly disregards the fact that such . . . entering or residing in this state is or will be in

violation of law.” This provision exempts child protective service workers, first responders,

and emergency medical technicians. S.B. 1070 § 5. This provision contains no further

exceptions, including for organizations exempted by federal law from criminal liability, such

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as religious organizations which “encourage, invite, call, allow, or enable” an alien to

volunteer as a minister or missionary. See 8 U.S.C. § 1324(a)(C).

56. Arizona’s new state law prohibition of certain transporting, concealing, and

encouraging of unlawfully present aliens is preempted by federal law, including 8 U.S.C.

§ 1324(a)(1)(C). This new provision is an attempt to regulate unlawful entry into the United

States (through the Arizona border). The regulation of unlawful entry is an area from which

states are definitively barred by the U.S. Constitution. Additionally, because the purpose of

this law is to deter and prevent the movement of certain aliens into Arizona, the law restricts

interstate commerce. Enforcement and operation of this state law provision would therefore

conflict and interfere with the federal government’s management of interstate commerce, and

would thereby violate Article I, Section 8 of the United States Constitution.


57. Section 6 of S.B. 1070 amends a preexisting Arizona criminal statute (Ariz. Rev.

Stat. 13-3883) governing the circumstances under which law enforcement officers can make

a warrantless arrest. Section 6 allows the arrest of anyone whom the officer has probable

cause to believe “has committed any public offense that makes the person removable from

the United States,” and does not require coordination with DHS to confirm removability.

The warrantless arrest authority provided by Section 6 applies to persons who have

committed an offense in another state when an Arizona law enforcement official believes that

offense makes the person removable. See Ariz. Rev. Stat. 13-3883.

58. Arizona law previously allowed for the warrantless arrest of anyone who was

suspected of having committed a misdemeanor or felony in Arizona. Although Section 6

authorizes warrantless arrests based on crimes committed out of state, it does so only if the

officer believes the crime makes the individual removable. Thus, Section 6 is not intended

to serve any new law enforcement interest. Rather, the purpose of Section 6, especially when

read in light of S.B. 1070’s overall purpose, is plain: Section 6 provides additional means

to arrest aliens in the state on the basis of immigration status.

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59. Section 6 makes no exception for aliens whose removability has already been

resolved by federal authorities, despite the fact that only the federal government can actually

issue removal decisions. Section 6 will therefore necessarily result in the arrest of aliens

based on out-of-state crimes, even if the criminal and immigration consequences of the out-

of-state crime have already been definitively resolved. For that reason, as with Section 2,

Section 6 of S.B. 1070 interferes with the federal government’s enforcement prerogatives and

will necessarily impose burdens on lawful aliens in a manner that conflicts with the purposes

and practices of the federal immigration laws. Additionally, Section 6 will result in the arrest

of aliens whose out-of-state crimes would not give rise to removal proceedings at all.

60. By reason of the foregoing, defendants’ actions have caused and will continue

to cause substantial and irreparable harm to the United States for which plaintiff has no

adequate remedy except by this action.

FIRST CAUSE OF ACTION – VIOLATION OF THE SUPREMACY CLAUSE

61. Plaintiff incorporates paragraphs 1 through 60 of the Complaint as if fully stated

herein.

62. Sections 1-6 of S.B. 1070, taken in whole and in part, represent an impermissible

effort by Arizona to establish its own immigration policy and to directly regulate the

immigration status of aliens. In particular, Sections 1-6 conflict with federal law and foreign

policy, disregard federal policies, interfere with federal enforcement priorities in areas

committed to the discretion of plaintiff United States, and otherwise impede the

accomplishment and execution of the full purposes and objectives of federal law and foreign

policy.

63. Sections 1-6 of S.B. 1070 violate the Supremacy Clause, and are invalid.

SECOND CAUSE OF ACTION – PREEMPTION UNDER FEDERAL LAW


herein.

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65. Sections 1-6 of S.B. 1070 are preempted by federal law, including 8 U.S.C.

§ 1101, et seq., and by U.S. foreign policy.

THIRD CAUSE OF ACTION – VIOLATION OF THE COMMERCE CLAUSE


herein.

67. Section 5 of S.B. 1070 (adding Ariz. Rev. Stat. 13-2929) restricts the interstate

movement of aliens in a manner that is prohibited by Article One, Section Eight of the

Constitution.

68. Section 5 of S.B. 1070 (adding Ariz. Rev. Stat. 13-2929) violates the Commerce

Clause, and is therefore invalid.

PRAYER FOR RELIEF

WHEREFORE, the United States respectfully requests the following relief:

1. A declaratory judgment stating that Sections 1-6 of S.B. 1070 are invalid, null, and

void;

2. A preliminary and a permanent injunction against the State of Arizona, and its

officers, agents, and employees, prohibiting the enforcement of Sections 1-6 of S.B. 1070;

3. That this Court award the United States its costs in this action; and

4. That this Court award any other relief it deems just and proper.

DATED: July 6, 2010Tony WestAssistant Attorney General

Dennis K. BurkeUnited States Attorney

Arthur R. GoldbergAssistant Director, Federal Programs Branch

/s/ Varu Chilakamarri Varu Chilakamarri (NY Bar #4324299)Joshua Wilkenfeld (NY Bar #4440681)

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U.S. Department of Justice, Civil Division20 Massachusetts Avenue, N.W.Washington, DC 20530Tel. (202) 616-8489/Fax (202) [email protected] for the United States

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2011 constitutional law study guide & problem supplement

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