When the Texas legislature passed Senate Bill 4 on party-line votes, it marked the most extreme immigration measure to make it through a state house since Arizona’s infamous Senate Bill 1070, the so-called “show me your papers” law. Within moments, all eyes turned to the courts. Yesterday, the U.S. Court of Appeals for the Fifth Circuit announced that most of the Texas law does not violate the U.S. Constitution. City of El Cenizo v. Texas, No. 17-50762, slip op. (5th Cir. March 13, 2018). As a result, Texas law enforcement agencies and local governments are now blocked from choosing to limit their cooperation with the Department of Homeland Security’s immigration efforts.
In a unanimous opinion, the Fifth Circuit’s three-judge panel held that SB4
- is not preempted under the federal Constitution’s Supremacy Clause;
- its section requiring local governments to comply with ICE immigration detainer requests does not violate the Fourth Amendment; and
- its provision prohibiting local laws or policies that “materially limit” immigration enforcement activities is not so vague as to violate the Fourteenth Amendment.
The court blocked a single provision from taking force: the attack on an elected official’s “endorsement” of laws or policies limiting cooperation with federal immigration law enforcement objectives.
In contrast to the Fifth Circuit’s strong support of SB4’s permissibility, the district court had largely agreed with the constitutional arguments raised by the plaintiffs and their supportive amici, a sweeping collection of the state’s largest cities and counties, plus major civil rights organizations.
When state or local laws conflict with federal laws, the Supremacy Clause of the U.S. Constitution provides that federal law is supreme. In these circumstances, federal law is said to “preempt” the state or local law. The much more difficult question is identifying when a conflict exists. This is most straightforward when Congress has enacted language explicitly barring state or local legislation of a certain type. No one claims that’s what happened here. Instead, the plaintiffs point to a type of preemption doctrine known as implied preemption. Courts recognize three types of implied preemption: field preemption, conflict impossibility preemption, and conflict obstacle preemption.
Implied field preemption occurs when Congress has so heavily regulated in an area that it evidences an intent that a federal law be the sole regulatory scheme in this area or where Congress has legislated in an area “in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). For example, a Pennsylvania statute required noncitizens to register with the state every year. Meanwhile, a federal statute consisted of “broad and comprehensive plan” regulating entry and presence in the USA, including a requirement that noncitizens register with it only. In Hines v. Davidowitz, 312 U.S. 52, 59-60, 69 (1941), the Supreme Court held the state law was field preempted because the registration requirement “is in a field which affects international relations, the one aspect of our government that from the first has been most generally conceded imperatively to demand broad national authority.” Id. at 68.
Implied conflict impossibility preemption occurs when a state or local law makes it impossible for someone to comply with both the state or local law and a federal law. For example, in McDermott v. State of Wisconsin, 228 U.S. 115, 126-27 (1913), the Supreme Court held that it was impossible for someone to comply with a federal statute requiring maple syrup to be labeled in a certain way that was prohibited by Wisconsin statute.
Implied conflict obstacle preemption occurs when a state or local law impedes an important objective of a federal law. For example, in Nash v. Florida Industrial Commission, 389 U.S. 235 (1967), the Supreme Court examined Congress’s decision to encourage complaints of unfair labor practices to be filed through the process created by the National Labor Relations Act rather than through other tactics like strikes. Meanwhile, a Florida statute denied unemployment benefits to anyone who filed unfair labor practice charges with the NLRA-created National Labor Relations Board. The Court concluded that the Florida law was conflict preempted because the state law interfered with Congress’s objective of encouraging parties to resolve labor disputes through NLRB proceedings.
The last major preemption fight over immigration that reached the Supreme Court was over Arizona’s SB 1070. In Arizona v. United States, 132 S. Ct. 2492 (2012), the Court found three of the four challenges sections preempted by federal law. The Court concluded that SB 1070’s criminalization of federal immigration law violations was implied conflict preemption. Id. at 1232. The section making it a state crime for an undocumented person to apply for, solicit, or perform work in Arizona was implied obstacle preemption. Id. at 1233. Lastly, the section allowing warrantless arrests if probable cause exists that a suspect “has committed any public offense that makes the person removable from the United States” was also implied obstacle preemption. Id. at 1234. The Court found that the provision requiring police officers to ask about the immigration status of people they stopped, detained, or arrested was not preempted but only if the police don’t detain or prolong an otherwise lawful detention solely to ask about immigration status. Id. at 1236.
No Implied Field Preemption
Reviewing SB4, the Fifth Circuit held that the Supremacy Clause of the U.S. Constitution does not preempt SB4’s ban on any policy or law that “endorse[s]…prohibits or materially limits” the federal government’s immigration enforcement goals. Despite the extensive regulation of immigration enforcement activities, including structuring state and local cooperation with federal officials, the Fifth Circuit panel concluded that Congress has not evidenced an intent to occupy the field of immigration enforcement. El Cenizo, slip op. at 9-10. Importantly, it identified two subfields of immigration enforcement: how local entities may help federal officials and whether they must. Id. at 10. SB4, the panel determined, “specifies whether they cooperate,” whereas “[f]ederal law regulates how local entities cooperation in immigration enforcement.” Id.
Oddly, the court characterized as indistinguishable SB4’s requirement that local entities help with immigration enforcement activities and local laws or policies expressly limiting cooperation. “In its operation, SB4 is similar to one of the city ordinances some plaintiffs have themselves adopted. These ordinances regulate whether and to what extent the local entities will participate in federal-local immigration enforcement cooperation. SB4 accomplishes the same goal on a state-wide level. If SB4 is field preempted, so too are the local ordinances that regulate ‘federal-local cooperation in immigration enforcement.’” Id. at 11-12. The court didn’t need to make this comment to reach its conclusion. That it did reveals the court’s underlying view of federal-local relations. This declaration suggests that it views skeptically any local law or policy to use or not use its resources in a way that implicates federal objectives. In broad strokes, that’s hard to swallow. Instead, it stinks of an outcome-determinative analysis.
No Implied Conflict Preemption
Having dismissed the field preemption challenge, the court turned to implied conflict preemption. In its view, none of SB4’s challenged provisions are conflict preempted.
The provision barring material limits on cooperation with the federal government’s immigration enforcement priorities does not conflict with federal law because “SB4’s assistance-cooperation provision does not authorize unilateral enforcement.” Id. at 13. The court emphasizes that cooperation means state and local officers will take the lead from federal authorities. Id. “State action under SB4’s assistance-cooperation provision will not conflict with federal priorities or limit federal discretion…because it requires a predicate federal request.” Id. at 15. It then adds that in the SB 1070 decision, the Supreme Court upheld a state law requiring local police officers to make immigration-status inquiries. The fact that state law required what federal law allowed did not conflict with federal law, the Fifth Circuit concluded. Id. at 16.
The court took a similar approach to SB4’s section barring local governments from enacting a law or policy that prohibits inquiries regarding immigration status. Id. at 17. Because SB4 requires this only of people “under a lawful detention or arrest,” the court concluded that it was permissible. It went so far as to note that cops can ask about immigration status even if they have “no suspicion—reasonable or unreasonable” that a “lawfully-detained individual” is violating immigration laws. Id. at 17 (citing Muehler v. Mena, 544 U.S. 93, 101 (2005)).
The sole provision that the Fifth Circuit found unconstitutional bars elected officials from “endorsing” limitations on cooperation with federal immigration authorities. The court concluded that this provision “proscribes core political speech when such ‘endorsement’ is uttered by elected officials,” thus it violates the First Amendment. Id. at 22. Interestingly, the court didn’t stop there. It instead discussed the constitutionality of the endorsement provision to speech by government employees, even though, as it admitted, it wasn’t presented with this question. No matter. It’s conclusion that SB4’s endorsement ban is unconstitutional as to elected officials “does not, however, insulate non-elected officials and employees, who may well be obliged to follow the dictates of SB4 as ‘government speech.’” Id. at 23.
The court then addressed the legality of SB4’s requirement that local entities comply with ICE’s immigration detainer requests. In a sweeping analysis, the court concluded that the Fourth Amendment has little to no relevance when it comes to immigration arrest authority. It explicitly announced that immigration arrests do not require evidence of criminality, as is typically the case under the Fourth Amendment. Instead, “we…disavow any district court decisions that have suggested the Fourth Amendment requires probable cause of criminality in the immigration context.” Id. at 29 n.21. It also concluded that the standard form that ICE currently uses to issue its administrative “warrants,” Form I-247A, “evidences probable cause of removability in every instance.” Id. at 28. At no point does the court even discuss the Fourth Amendment’s core procedural significance: that law enforcement officers collect evidence and neutral judges then decide whether there is sufficient reliable evidence to justify someone’s arrest. Without the involvement of a neutral third party, ICE can investigate, arrest, and deport without any judicial review.
Professor Michael Kagan, who’s fabulous article on the Fourth Amendment’s significance to modern-day immigration arrests is well worth reading, insightfully captured the tension that the court’s opinion fans:
At issue here is the power of the government to detain a person, citizen or immigrant, without probable cause, and without immediate review. An autocrat would very much enjoy this power. https://t.co/FgirOCVZfC
— Michael Kagan (@MichaelGKagan) March 14, 2018
That is a remarkable amount of power to give to any police agency. For that reason, the United States has traditionally insisted on some review of the government’s power to arrest.
Indeed, the Fourth Amendment’s inclusion in the Constitution illustrates the country’s longstanding fear of unrestricted government power to detain. The generation of political elites who added the Fourth Amendment to the Constitution were well aware of the risks of unimpeded law enforcement power. They had personally lived through a period in which the King and his law enforcement officers stormed into homes and workplaces in search of treasonous materials. To curtail the new government’s power to repeat those excesses, they demanded that judges review any evidence obtained by law enforcement agents. Since then, police officers in every part of the United States have applied and received search and arrest warrants daily.
Enforcement Provision Isn’t Too Vague
Finally, the Fifth Circuit concluded that SB4’s bar on policies or laws that “materially limit” local cooperation with federal prerogatives isn’t unconstitutionally vague. Not only are “materiality standards routine in the law,” but SB4, the court explained, “provide[s] specific examples of what conduct local entities cannot limit.” Id. at 33.
With a resounding defeat at the Fifth Circuit, the plaintiffs have two appeals options available. They can ask the Fifth Circuit to rehear arguments as a whole (called “en banc”) rather than assign the task to a three-judge panel. They can also ask the Supreme Court to hear the case. I imagine they will do both. Neither is certain to occur because en banc rehearing and review by the Supreme Court are discretionary decisions. It’s particularly interesting to contemplate what the Supreme Court will do when it reviews a petition for review. The Court might be hesitant to accept the case for a number of reasons. First, it issued a major decision in an immigration law case raising many of the same constitutional principles at stake here in Arizona just six years ago. If the Supreme Court sees El Cenizo as nothing more than a faithful application of its Arizona decision, then it has little reason to add this to its docket. Second, missing from this dispute is one element that frequently motivates the Supreme Court to take a case: a disagreement among federal appellate courts. Called a circuit split, federal appellate courts frequently disagree with one another. That won’t happen here because SB4 is a state law that applies only to Texas entities thus they can only raise challenges in federal courts within the Fifth Circuit.