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Justice Scalia | 2,007 | 9 | majority | Rockwell Intern. Corp. v. United States | https://www.courtlistener.com/opinion/145751/rockwell-intern-corp-v-united-states/ | action shall have the right to conduct the action," 3730(b)(4)(B). The statute thus draws a sharp distinction between actions brought by the Attorney General under 3730(a) and actions brought by a private person under 3730(b). An action brought by a private person does not become one brought by the Government just because the Government intervenes and elects to "proceed with the action." Section 3730 elsewhere refers to the Government's "proceed[ing] with an action brought by a person under subsection (b)" which makes crystal clear the distinction between actions brought by the Government and actions brought by a relator where the Government intervenes but does not oust the relator. Does this conclusion cast into doubt the courts' jurisdiction with respect to the Government as well? After all, 3730(e)(4)(A) bars jurisdiction over any action brought under 3730, as this one was, unless the action is brought (1) by the Attorney General or (2) by an original source; and we have concluded that this is brought by neither. Not even petitioners have suggested the bizarre result that the Government's judgment must be set aside. It is readily enough avoided, as common sense suggests it must be, by holding that an action originally brought by a private person, which the Attorney General has joined, becomes an action brought by the Attorney General once the private person has been determined to lack the jurisdictional prerequisites for suit. The outcome would be similar to that frequently produced in diversity-jurisdiction cases, where the "courts of appeals have the authority to cure a jurisdictional defect by dismissing a dispensable nondiverse party." Grupo ); see United States Steel ; 7C C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 1920, p. 1 (2d ed. 1986) ("[A]n intervenor can proceed to decision after a dismissal of the original action if there are independent grounds for jurisdiction of the intervenor's claim"). What is cured here, by the jurisdictional ruling regarding Stone's claim, is the characterization of the action as one brought by an original source. The elimination of Stone leaves in place an action pursued only by the Attorney General, that can reasonably be regarded as being *1412 "brought" by him for purposes of 3730(e)(4)(A). * * * We hold that the District Court lacked jurisdiction to enter judgment in favor of Stone. We reverse the Tenth Circuit's judgment to the contrary. It is so ordered. Justice BREYER took no part in the consideration or decision of this case. |
Justice Alito | 2,006 | 8 | majority | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | The Individuals with Disabilities Education Act (IDEA or Act) provides that a court “may award reasonable at torneys’ fees as part of the costs” to parents who prevail in an action brought under the Act. 20 U.S. C. We granted certiorari to decide whether this fee-shift provision authorizes prevail parents to recover fees for services rendered by experts in IDEA actions. We hold that it does not. I Respondents Pearl and Theodore Murphy filed an action under the IDEA on behalf of their son, Joseph Murphy, seek to require petitioner Arlton Central School District Board of Education to pay for their son’s private school tuition for specified school years. Respondents prevailed in the District Court, and the Court of Appeals for the Second Circuit affirmed, As prevail parents, respondents then sought $29,350 in fees for the services of an educational consultant, 2 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v. MURPHY Opinion of the Court Marilyn Arons, who assisted respondents throughout the IDEA proceeds. The District Court granted respon dents’ request in part. It held that only the value of Arons’ time spent between the hear request and the rul in respondents’ favor could properly be considered charges incurred in an “action or proceed brought” under the Act, see 20 U.S. C. This reduced the maximum recov ery to $8,50. The District Court also held that Arons, a nonlawyer, could be compensated only for time spent on expert consult services, not for time spent on legal representation, but it concluded that all the relevant time could be characterized as fall within the compensable category, and thus allowed compensation for the full $8,50, The Court of Appeals for the Second Circuit affirmed. Acknowledg that other Circuits had taken the opposite view, the Court of Appeals for the Second Circuit held that “Congress intended to and did authorize the reimbursement of expert fees in IDEA ac tions.” The court began by discuss two decisions of this Court hold that expert fees could not be recovered as taxed costs under particular cost- or fee- shift provisions. See Crawford Fitt (interpret Fed. Rule Civ. Proc. 54(d) and 28 U.S. C. West Virginia Univ. Hospitals, (interpret 42 U.S. C. (1988 ed.)). Accord to these decisions, the court noted, a cost- or fee-shift provision will not be read to permit a prevail party to recover expert fees without “‘explicit statutory authority’ indicat that Congress intended for that sort of fee-shift.” 402 F.3d, Ultimately, though, the court was persuaded by a state ment in the Conference Committee Report relat to 20 U.S. C. and by a footnote |
Justice Alito | 2,006 | 8 | majority | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | Report relat to 20 U.S. C. and by a footnote in that made reference to that 402 F.3d, –337 Cite as: 548 U. S. (200) 3 Opinion of the Court (cit H. R. Conf. Rep. No. 99–87, p. 5 (198)). Based on these authorities, the court concluded that it was required to interpret the IDEA to authorize the award of the costs that prevail parents incur in hir experts. 402 F.3d, We granted certiorari, 54 U. S. (200), to resolve the conflict among the Circuits with respect to whether Congress authorized the compensation of expert fees to prevail parents in IDEA actions. Compare Goldr v. District of Columbia, ; Neosho R-V School Dist. v. Clark ex rel. Clark, 315 F.3d 1022, 1031–1033 ; T. with We now reverse. II Our resolution of the question presented in this case is guided by the fact that Congress enacted the IDEA pursu ant to the Spend Clause. U. S. Const., Art. I, cl. 1; see Schaffer v. Weast, 54 U. S. Like its statutory predecessor, the IDEA provides federal funds to assist state and local agencies in educat children with disabilities “and conditions such fund upon a State’s compliance with extensive goals and procedures.” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Congress has broad power to set the terms on which it disburses federal money to the States, see, e.g., South but when Congress attaches conditions to a State’s acceptance of federal funds, the conditions must be set out “unambigu ously,” see Pennhurst State School and ; “[L]egislation enacted pursuant to the spend power is much in the nature of a contract,” and therefore, to be bound by “federally imposed conditions,” recipients of federal funds 4 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v. MURPHY Opinion of the Court must accept them “voluntarily and knowly.” Pennhurst, 451 U.S., at States cannot knowly accept conditions of which they are “unaware” or which they are “unable to ascertain.” Thus, in the present case, we must view the IDEA from the perspective of a state official who is engaged in the process of decid whether the State should accept IDEA funds and the obligations that go with those funds. We must ask whether such a state official would clearly understand that one of the obligations of the Act is the obligation to compensate prevail parents for expert fees. In other words, we must ask whether the IDEA furnishes clear notice regard the liability at issue in this case. III A In consider whether the IDEA provides clear notice, we begin with the text. |
Justice Alito | 2,006 | 8 | majority | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | the IDEA provides clear notice, we begin with the text. We have “stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat. 253–254 (1992). When the statutory “language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it accord to its terms.” Hartford Underwriters Ins. (quot United (1989), in turn quot Caminetti v. United States, 242 U.S. 470, 485 (19); internal quotation marks omitted). The govern provision of the IDEA, 20 U.S. C. provides that “[i]n any action or proceed brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs” to the parents of “a child with a disability” who is the “prevail party.” While this provision provides for an award of “reasonable attorneys’ fees,” this provision does Cite as: 548 U. S. (200) 5 Opinion of the Court not even hint that acceptance of IDEA funds makes a State responsible for reimburs prevail parents for services rendered by experts. Respondents contend that we should interpret the term “costs” in accordance with its mean in ordinary usage and that should therefore be read to “au thorize reimbursement of all costs parents incur in IDEA proceeds, includ expert costs.” Brief for Respon dents This argument has multiple flaws. For one th, as the Court of Appeals in this case acknowledged, “ ‘costs’ is a term of art that generally does not include expert fees.” 402 F.3d, The use of this term of art, rather than a term such as “expenses,” strongly suggests that was not meant to be an open-ended provi sion that makes participat States liable for all expenses incurred by prevail parents in connection with an IDEA case—for example, travel and lodg expenses or lost wages due to time taken off from work. Moreover, contrary to respondents’ suggestion, does not say that a court may award “costs” to prevail par ents; rather, it says that a court may award reasonable attorney’s fees “as part of the costs” to prevail parents. This language simply adds reasonable attorney’s fees incurred by prevail parents to the list of costs that prevail parents are otherwise entitled to recover. This list of otherwise recoverable costs is obviously the list set out in 28 U.S. C. the general statute govern the taxation of costs in federal court, and the recovery of witness fees under is strictly limited by which authorizes travel reimbursement and a $40 |
Justice Alito | 2,006 | 8 | majority | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | strictly limited by which authorizes travel reimbursement and a $40 per diem. Thus, the text of 20 U.S. C. does not authorize an award of any additional expert fees, and it certainly fails to provide the clear notice that is required under the Spend Clause. Other provisions of the IDEA point strongly in the same ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v. MURPHY Opinion of the Court direction. While authoriz the award of reasonable attorney’s fees, the Act contains detailed provisions that are designed to ensure that such awards are indeed rea sonable. See The absence of any comparable provisions relat to expert fees strongly suggests that recovery of expert fees is not authorized. Moreover, the lack of any reference to expert fees in gives rise to a similar inference. This provi sion, which generally requires that parents receive “a full explanation of the procedural safeguards” available under and refers expressly to “attorneys’ fees,” makes no mention of expert fees. B Respondents contend that their interpretation of is supported by a provision of the Handi capped Children’s Protection Act of 198 that required the General Account Office (GAO) to collect certain data, but this provision is of little significance for present pur poses. The GAO study provision directed the Comptroller General, act through the GAO, to compile data on, among other ths: “(A) the specific amount of attorneys’ fees, costs, and expenses awarded to the prevail party” in IDEA cases for a particular period of time, and (B) “the number of hours spent by personnel, includ attorneys and consultants, involved in the action or proceed, and expenses incurred by the parents and the State educa tional agency and local educational agency.” at 797– 798. Subparagraph (A) would provide some support for re spondents’ position if it directed the GAO to compile data on awards to prevail parties of the expense of hir consultants, but that is not what subparagraph (A) says. Subparagraph (A) makes no mention of consultants or Cite as: 548 U. S. (200) 7 Opinion of the Court experts or their fees.1 Subparagraph (B) similarly does not help respondents. Subparagraph (B), which directs the GAO to study “the number of hours spent [in IDEA cases] by personnel, includ consultants,” says noth about the award of fees to such consultants. Just because Congress di rected the GAO to compile statistics on the hours spent by consultants in IDEA cases, it does not follow that Con gress meant for States to compensate prevail parties for the fees billed by these consultants. Respondents maintain that “Congress’ direction to the GAO |
Justice Alito | 2,006 | 8 | majority | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | these consultants. Respondents maintain that “Congress’ direction to the GAO would be inexplicable if Congress did not anticipate that the expenses for ‘consultants’ would be recoverable,” Brief for Respondents 19, but this is incorrect. There are many reasons why Congress might have wanted the GAO to gather data on expenses that were not to be taxed as costs. Know the costs incurred by IDEA litigants might be useful in consider future procedural amendments (which might affect these costs) or a future amendment regard fee shift. And, in fact, it is apparent that the —————— 1 Because subparagraph (A) refers to both “costs” and “expenses” awarded to prevail parties and because it is generally presumed that statutory language is not superfluous, it could be argued that this provi sion manifests the expectation that prevail parties would be awarded certain “expenses” not included in the list of “costs” set out in 28 U.S. C. and that expert fees were intended to be among these unenumer ated “expenses.” This argument fails because, whatever expectation this language might seem to evidence, the fact remains that neither 20 U.S. C. nor any other provision of the IDEA authorizes the award of any “expenses” other than “costs.” Recogniz this, respondents argue not that they are entitled to recover “expenses” that are not “costs,” but that expert fees are recoverable “costs.” As a result, the reference to awards of both “expenses” and “costs” does not support respondents’ position. The reference to “expenses” may relate to IDEA actions brought in state court, (i)(2)(A), where “expenses” other than “costs” might be receivable. Or the reference may be surplusage. While it is generally presumed that statutes do not contain surplusage, instances of surplusage are not unknown. 8 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v. MURPHY Opinion of the Court GAO study provision covered expenses that could not be taxed as costs. For example, the GAO was instructed to compile statistics on the hours spent by all attorneys involved in an IDEA action or proceed, even though the Act did not provide for the recovery of attorney’s fees by a prevail state or local educational agency.2 Similarly, the GAO was directed to compile data on “expenses in curred by the parents,” not just those parents who prevail and are thus eligible to recover taxed costs. In sum, the terms of the IDEA overwhelmly support the conclusion that prevail parents may not recover the costs of experts or consultants. Certainly the terms of the IDEA fail to provide the clear notice that would be needed to attach such a condition to |
Justice Alito | 2,006 | 8 | majority | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | that would be needed to attach such a condition to a State’s receipt of IDEA funds. IV Thus far, we have considered only the text of the IDEA, but perhaps the strongest support for our interpretation of the IDEA is supplied by our decisions and reason in Crawford Fitt, and In light of those decisions, we do not see how it can be said that the IDEA gives a State unambiguous notice regard liability for expert fees. In Crawford Fitt, the Court rejected an argument very similar to respondents’ argument that the term “costs” in should be construed as an open- ended reference to prevail parents’ expenses. It was argued in Crawford Fitt that Federal Rule of Civil —————— 2 In 2000, the attorneys’ fees provision provided only an award to prevail parents. See 20 U.S. C. In 2004, Congress amended to include two additional awards. See The amendments provided awards “to a prevail party who is a State educational agency or local educational agency” where the complaint filed is frivolous or presented for an improper purpose, such as to harass, delay, or increase the cost of litigation. See 20 U.S. C. A. §(i)(II)–(III) (Supp. 200). Cite as: 548 U. S. (200) 9 Opinion of the Court Procedure 54(d), which provides for the award of “costs” to a prevail party, authorizes the award of costs not listed in 28 U.S. C. The Court held, however, that Rule 54(d) does not give a district judge “discretion to tax whatever costs may seem appropriate”; rather, the term “costs” in Rule 54(d) is defined by the list set out in Because the recovery of witness fees, see (3), is strictly limited by the Court observed, a broader interpretation of Rule 54(d) would mean that the Rule implicitly effected a partial repeal of those provisions. But, the Court warned, “[w]e will not lightly infer that Congress has repealed § and 1821, either through Rule 54(d) or any other provision not referr explicitly to witness fees.” The reason of Crawford Fitt strongly supports the conclusion that the term “costs” in 20 U.S. C. like the same term in Rule 54(d), is defined by the categories of expenses enumerated in 28 U.S. C. This conclusion is buttressed by the principle, recognized in Crawford Fitt, that no statute will be construed as authoriz the taxation of witness fees as costs unless the statute “refer[s] explicitly to witness fees.” 482 U.S., ; see also (“absent explicit statutory or contractual authorization for the taxation of the ex penses of a litigant’s witness as costs, federal courts are bound by |
Justice Alito | 2,006 | 8 | majority | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | a litigant’s witness as costs, federal courts are bound by the limitations set out in 28 U.S. C. and ”). Our decision in confirms even more dramatically that the IDEA does not authorize an award of expert fees. In as noted above, we interpreted a fee-shift provision, 42 U.S. C. the relevant word of which was virtually identical to the word of 20 U.S. C. Compare (authoriz the award of “reasonable attorneys’ fees as part of the costs” to prevail parents) with 42 U.S. C. (b) (1988 ed.) (permit 10 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v. MURPHY Opinion of the Court t prevail parties in certain civil rights actions to be awarded “a reasonable attorney’s fee as part of the costs”). We held that did not empower a district court to award expert fees to a prevail party. at 102. To decide in favor of respondents here, we would have to interpret the virtually identical language in 20 U.S. C. as hav exactly the opposite mean. Indeed, we would have to go further and hold that the relevant language in the IDEA unambiguously means exactly the opposite of what the nearly identical language in 42 U.S. C. was held to mean in The Court of Appeals, as noted above, was heavily influ enced by a footnote, see 402 F.3d, –337 (quot –92, n. 5), but the court misunderstood the footnote’s mean. The text accompany the foot note argued, based on an analysis of several fee-shift statutes, that the term “attorney’s fees” does not include expert fees. at 88–91. In the footnote, we commented on petitioners’ invocation of the Conference Committee Report relat to 20 U.S. C. which stated: “ ‘The conferees intend[ed] that the term “attorneys’ fees as part of the costs” include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the prepara tion of the case.’ ” –92, n. 5 (quot H. R. Conf. Rep. No. 99–87, at 5; ellipsis in original). This statement, the footnote commented, was “an appar ent effort to depart from ordinary mean and to define a term of art.” n. 5. The footnote did not state that the Conference Committee Report set out the correct interpretation of much less that the Report was sufficient, despite the language of the statute, to provide the clear notice required under the Spend Clause. The thrust of the footnote was simply that the term “attorneys’ fees,” stand alone, is generally not understood as encompass expert fees. Thus, Crawford Cite as: 548 |
Justice Alito | 2,006 | 8 | majority | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | understood as encompass expert fees. Thus, Crawford Cite as: 548 U. S. (200) 11 Opinion of the Court Fitt and strongly reinforce the conclusion that the IDEA does not unambiguously authorize prevail parents to recover expert fees. V Respondents make several arguments that are not based on the text of the IDEA, but these arguments do not show that the IDEA provides clear notice regard the award of expert fees. Respondents argue that their interpretation of the IDEA furthers the Act’s overarch goal of “ensur[] that all children with disabilities have available to them a free appropriate public education,” 20 U.S. C. as well as the goal of “safeguard[] the rights of parents to challenge school decisions that ad versely affect their child.” Brief for Respondents 20. These goals, however, are too general to provide much support for respondents’ read of the terms of the IDEA. The IDEA obviously does not seek to promote these goals at the expense of all other considerations, includ fiscal considerations. Because the IDEA is not intended in all instances to further the broad goals identified by the respondents at the expense of fiscal considerations, the goals cited by respondents do little to bolster their argu ment on the narrow question presented here.3 Finally, respondents vigorously argue that Congress clearly intended for prevail parents to be compensated for expert fees. They rely on the legislative history of and in particular on the follow statement in the —————— 3 Respondents note that a GAO report stated that expert witness fees are reimbursable expenses. See Brief for Respondents 19 (cit GAO, Special Education: The Attorney Fees Provision of Public Law 99–372, p. 13 (Nov. 1989)). But this pass reference in a report issued by an agency not responsible for implement the IDEA is plainly insuffi cient to provide clear notice regard the scope of the conditions attached to the receipt of IDEA funds. 12 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v. MURPHY Opinion of the Court Conference Committee Report, discussed above: “The conferees intend that the term ‘attorneys’ fees as part of the costs’ include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evalua tion which is found to be necessary for the preparation of the case.” H. R. Conf. Rep. No. 99–87, at 5. Whatever weight this legislative history would merit in another context, it is not sufficient here. Putt the legislative history aside, we see virtually no support for respondents’ position. Under these circumstances, where everyth other than the legislative history overwhelm suggests that expert fees may |
Justice Alito | 2,006 | 8 | majority | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | than the legislative history overwhelm suggests that expert fees may not be recovered, the legislative history is simply not enough. In a Spend Clause case, the key is not what a majority of the Mem bers of both Houses intend but what the States are clearly told regard the conditions that go along with the accep tance of those funds. Here, in the face of the unambiguous text of the IDEA and the reason in Crawford Fitt and we cannot say that the legislative history on which respondents rely is sufficient to provide the requi site fair notice. * * * We reverse the judgment of the Court of Appeals for the Second Circuit and remand the case for further proceed s consistent with this opinion. It is so ordered. Cite as: 548 U. S. (200) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES No. 05–18 ARLINGTON CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, PETITIONER v. PEARL MURPHY ET VIR ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [June 2, 200] JUSTICE GINSBURG, concurr in part and concurr in the judgment. I agree, in the main, with the Court’s resolution of this case, but part ways with the Court’s opinion in one re spect. The Court extracts from Pennhurst State School and a “clear notice” requirement, and deems it applicable in this case because Congress enacted the Individuals with Disabili ties Education Act (IDEA), as it did the legislation at issue in Pennhurst, pursuant to the Spend Clause. Ante, at 3–4. That extraction, in my judgment, is unwarranted. Pennhurst’s “clear notice” requirement should not be unmoored from its context. The Court there confronted a plea to impose “an unexpected condition for compliance—a new [programmatic] obligation for participat States.” 41 U.S. 773, 790, n. The controversy here is lower key: It concerns not the educa tional programs IDEA directs school districts to provide, but “the remedies available against a noncomply [dis trict].” Ibid; see post, at 9–11 (BREYER, J., dissent). The Court’s repeated references to a Spend Clause derived “clear notice” requirement, see ante, at 3–4, 8, 11, and n. 3, 12, are questionable on other grounds as well. For one th, IDEA was enacted not only pursuant to 2 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v. MURPHY Opinion of GINSBURG, J. Congress’ Spend Clause authority, but also pursuant to of the Fourteenth Amendment. See 48 U.S. 992, (IDEA’s predecessor, the Educa tion of the Handicapped Act, was “set up by Congress to aid the States in comply with their constitutional |
Justice Alito | 2,006 | 8 | majority | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | Congress to aid the States in comply with their constitutional obligations to provide public education for handicapped children.”). Furthermore, no “clear notice” prop is needed in this case given the twin pillars on which the Court’s judgment securely rests. First, as the Court explains, ante, at 4–, the specific, attorneys’-fees-oriented, provi sions of IDEA, i.e., 20 U.S. C. –(G); (L), “overwhelmly support the conclusion that prevail parents may not recover the costs of ex perts or consultants,” ante, at 8. Those provisions place controls on fees recoverable for attorneys’ services, without mention costs parents might incur for other profes sional services and controls geared to those costs. Second, as the Court develops, prior decisions closely in point “strongly suppor[t],” even “confir[m] dramatically,” today’s hold that IDEA trains on attorneys’ fees and does not authorize an award cover amounts paid or payable for the services of an educational consultant. Ante, at 9 and West Virginia Univ. Hospitals, Inc. v. ). For the contrary conclusion, JUSTICE BREYER’s dissent relies dominantly on a Conference Report stat the conferees’ view that the term “attorneys’ fees as part of the costs” includes “expenses and fees of expert witnesses” and payments for tests necessary for the preparation of a case. H. R. Conf. Rep. No. 99–87, p. 5 (198) (internal quota tion marks omitted).1 Includ costs of consultants and —————— 1The relevant statement from the Conference Report reads in its entirety: “The conferees intend that the term ‘attorneys’ fees as part of the Cite as: 548 U. S. (200) 3 Opinion of GINSBURG, J. tests in would make good sense in light of IDEA’s overarch goal, i.e., to provide a “free appropri ate public education” to children with disabilities, See post, at 5–8 (BREYER, J., dissent). But Congress did not compose ’s text,2 as it did the texts of other statutes too numerous and varied to ignore, to alter the common import of the terms “attorneys’ fees” and “costs” in the context of expense-allocation legis lation. See, e.g., 42 U.S. C. (c) (2000 ed. and Supp. III) (added in 1991 specifically to “include expert fees as part of the attorney’s fee”); –92, and n. 4 (cit variously composed statutes that “explicitly shift expert fees as well as attorney’s fees”). Given the —————— costs’ include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be neces sary for the preparation of the parent or guardian’s case in the action or proceed, as well as traditional costs incurred in the course of litigat a case.” H. R. |
Justice Alito | 2,006 | 8 | majority | Arlington Central School Dist. Bd. of Ed. v. Murphy | https://www.courtlistener.com/opinion/145629/arlington-central-school-dist-bd-of-ed-v-murphy/ | incurred in the course of litigat a case.” H. R. Conf. Rep. 99–87, at 5. Although the Conference Report goes on to consider other matters, includ controls on attorneys’ fees, noth further is said on expert witness fees or test costs. 2At the time the Conference Report was submitted to the Senate and House, sponsors of the legislation did not mention anyth on the floor about expert or consultant fees. They were altogether clear, however, that the purpose of the legislation was to “reverse” this Court’s decision in 48 U.S. 992 In Smith, the Court held that, under the statute as then designed, prevail parents were not entitled to attorneys’ fees. See 132 Cong. Rec. 1823 (198) (remarks of Sen. Weicker) (“In adopt this legislation, we are reject the rea son of the Supreme Court in Smith versus Robinson.”); at 1824 (remarks of Sen. Kerry) (“This vital legislation reverses a U. S. Su preme Court decision Smith versus Robinson[.]”); at 08–09 (remarks of Rep. Bartlett) (“I support those provisions in the conference agreement that, in response to the Supreme Court decision in Smith versus Robinson, authoriz[e] the award of reasonable attorneys’ fees to parents who prevail in special education court cases.”); at 09 (remarks of Rep. Biaggi) (“This legislation clearly supports the intent of Congress back in 1975 and corrects what I believe was a gross misin terpretation of the law. Attorneys’ fees should be provided to those individuals who are be denied access to the educational system.”). 4 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v. MURPHY Opinion of GINSBURG, J. constant mean of the formulation “attorneys’ fees as part of the costs” in federal legislation, we are not at lib erty to rewrite “the statutory text adopted by both Houses of Congress and submitted to the President,” to add several words Congress wisely might have included. The ball, I conclude, is properly left in Congress’ court to provide, if it so elects, for consultant fees and test expenses beyond those IDEA and its implement regula tions already authorize,3 along with any specifications, conditions, or limitations geared to those fees and expenses Congress may deem appropriate. Cf. –(G); (L) (list only attorneys’ fees, not expert or consult fees, among the procedural safeguards about which school districts must inform parents). In sum, although I disagree with the Court’s rationale to the extent that it invokes a “clear notice” requirement tied to the Spend Clause, I agree with the Court’s discussion of IDEA’s terms, ante, at 4–, and of our decisions in Craw ford and ante, at 8–11. Accordly, I concur |
Justice Alito | 2,015 | 8 | majority | Kellogg Brown & Root Services, Inc. v. United States Ex Rel. Carter | https://www.courtlistener.com/opinion/2803250/kellogg-brown-root-services-inc-v-united-states-ex-rel-carter/ | Wars have often provided “exceptional opportunities” for fraud on the United States Government. See United “The False Claims Act was adopted in 1863 and signed into law by President Abraham Lincoln in order to combat rampant fraud in Civil War defense contracts.” S. Rep. No. 99–345, p. 8 (1986). Predecessors of the Wartime Suspension of Limitations Act were enacted to address similar problems that arose during the First and Second World Wars. See at –229. In this case, we must decide two questions regarding those laws: first, whether the Wartime Suspension of Limitations Act applies only to criminal charges or also to civil claims; second, whether the False Claims Act’s first- to-file bar keeps new claims out of court only while related claims are still alive or whether it may bar those claims in perpetuity. 2 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED STATES EX REL. CARTER Opinion of the Court I A The False Claims Act (FCA) imposes liability on any person who “knowingly presents a false or fraudulent claim for payment or approval,” 31 U.S. C. “to an officer or employee of the United States,” 3729(b)(2)(A)(i). The FCA may be enforced not just through litigation brought by the Government itself, but also through civil qui tam actions that are filed by private parties, called relators, “in the name of the Government.” In a qui tam suit under the FCA, the relator files a complaint under seal and serves the United States with a copy of the complaint and a disclosure of all material evidence. After reviewing these materials, the United States may “proceed with the action, in which case the action shall be conducted by the Government,” or it may “notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action.” Re- gardless of the option that the United States selects, it retains the right at any time to dismiss the action entirely, or to settle the case, The FCA imposes two restrictions on qui tam suits that are relevant here. One, the “first-to-file” bar, precludes a qui tam suit “based on the facts underlying [a] pending action.” The other, the FCA’s statute of limitations provision, states that a qui tam action must be brought within six years of a viola- tion or within three years of the date by which the United States should have known about a violation. In no cir- cumstances, however, may a suit be brought more than 10 years after the date of a violation. B |
Justice Alito | 2,015 | 8 | majority | Kellogg Brown & Root Services, Inc. v. United States Ex Rel. Carter | https://www.courtlistener.com/opinion/2803250/kellogg-brown-root-services-inc-v-united-states-ex-rel-carter/ | than 10 years after the date of a violation. B The Wartime Suspension of Limitations Act (WSLA) Cite as: 575 U. S. (2015) 3 Opinion of the Court suspends the statute of limitations for “any offense” in- volving fraud against the Federal Government. 18 U.S. C. Before 2008, this provision was activated only “[w]hen the United States [was] at war.” (2006 ed.). In 2008, however, this provision was made to apply as well whenever Congress has enacted “a specific author- ization for the use of the Armed Forces, as described in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).” (2012 ed.). II Petitioners are defense contractors and related entities that provided logistical services to the United States military during the armed conflict in Iraq. From January to April 2005, respondent worked in Iraq for one of the petitioners as a water purification operator. He subse- quently filed a qui tam complaint against petitioners (Carter I), alleging that they had fraudulently billed the Government for water purification services that were not performed or not performed properly. The Government declined to intervene. In 2010, shortly before trial, the Government informed the parties about an earlier filed qui tam lawsuit, United States ex rel. Thorpe v. Halliburton Co., No. 05–cv–08924 (CD Cal., filed Dec. 23, 2005), that arguably contained similar claims. This initiated a remarkable sequence of dismissals and filings. The District Court held that respondent’s suit was related to Thorpe and thus dismissed his case without prejudice under the first-to-file bar. Respondent appealed, and while his appeal was pending, Thorpe was dismissed for failure to prosecute. Respondent quickly filed a new complaint (Carter II), but the District Court dismissed this second complaint under the first-to-file rule because re- spondent’s own earlier case was still pending on appeal. Respondent then voluntarily dismissed this appeal, and in 4 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED STATES EX REL. CARTER Opinion of the Court June 2011, more than six years after the alleged fraud, he filed yet another complaint (Carter III ), and it is this complaint that is now at issue. Petitioners sought dismissal of this third complaint under the first-to-file rule, pointing to two allegedly related cases, one in Maryland and one in Texas, that had been filed in the interim between the filing of Carter I and Carter III. This time, the court dismissed respondent’s complaint with prejudice. The court held that the latest complaint was barred under the first-to-file rule because the Maryland suit was already pending when that com- plaint was filed. The court also ruled that |
Justice Alito | 2,015 | 8 | majority | Kellogg Brown & Root Services, Inc. v. United States Ex Rel. Carter | https://www.courtlistener.com/opinion/2803250/kellogg-brown-root-services-inc-v-united-states-ex-rel-carter/ | that com- plaint was filed. The court also ruled that the WSLA applies only to criminal charges and thus did not suspend the time for filing respondent’s civil claims. As a result, the court concluded, all but one of those claims were un- timely because they were filed more than six years after the alleged wrongdoing. The Fourth Circuit reversed, rejecting the District Court’s analysis of both the WSLA and first-to-file issues. United States ex rel. Carter v. Halliburton Co., 710 F.3d 171 (2013). Concluding that the WSLA applies to civil claims based on fraud committed during the conflict in Iraq,1 the Court of Appeals held that respondent’s claims had been filed on time. The Court of Appeals also held that the first-to-file bar ceases to apply once a related action is dismissed. Since the Maryland and Texas cases had been dismissed by the time of the Fourth Circuit’s decision, the court held that respondent had the right to refile his case. The Court of Appeals thus remanded Carter III with instructions to dismiss without prejudice. —————— 1 The Court of Appeals held that the Authorization for Use of Military Force Against Iraq Resolution of 2002, note following 50 U.S. C. p. 312, was sufficient to satisfy the “at war” requirement in the pre-2008 version of the WSLA. The Court of Appeals conse- quently found it unnecessary to decide whether the pre- or post-2008 version of the WSLA governed respondent’s claims. Cite as: 575 U. S. (2015) 5 Opinion of the Court After this was done, respondent filed Carter IV, but the District Court dismissed Carter IV on the ground that the petition for a writ of certiorari in Carter III (the case now before us) was still pending. We granted that petition, 573 U. S. (2014), and we now reverse in part and affirm in part. III The text, structure, and history of the WSLA show that the Act applies only to criminal offenses. A The WSLA’s roots extend back to the time after the end of World War I. Concerned about war-related frauds, Congress in 1921 enacted a statute that extended the statute of limitations for such offenses. The new law provided as follows: “[I]n offenses involving the defrauding or attempts to defraud the United States or any agency thereof and now indictable under any existing statutes, the period of limitations shall be six years.” Act of Nov. 17, 1921, ch. 124, Since only crimes are “indictable,” this provision quite clearly was limited to the filing of criminal charges. In 1942, after the United States entered World War |
Justice Alito | 2,015 | 8 | majority | Kellogg Brown & Root Services, Inc. v. United States Ex Rel. Carter | https://www.courtlistener.com/opinion/2803250/kellogg-brown-root-services-inc-v-united-states-ex-rel-carter/ | charges. In 1942, after the United States entered World War II, Congress enacted a similar suspension statute. This law, like its predecessor, applied to fraud “offenses now indictable under any existing statutes,” but this time the law suspended “any” “existing statute of limitations” until the fixed date of June 30, 1945. Act of Aug. 24, 1942, ch. 555, –748. As that date approached, Congress decided to adopt a suspension statute which would remain in force for the duration of the war. Congress amended the 1942 WSLA in three important ways. First, Congress deleted the phrase “now indictable under any statute,” so that the WSLA was made to apply simply to “any offense against 6 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED STATES EX REL. CARTER Opinion of the Court the laws of the United States.” Second, although previous versions of the WSLA were of definite duration, Congress now suspended the limitations period for the open-ended timeframe of “three years after the termination of hostilities in the present war as proclaimed by the President or by a concurrent resolution of the two Houses of Congress.” Third, Congress expanded the statute’s coverage beyond offenses “involving defrauding or attempts to defraud the United States” to include other offenses pertaining to Government contracts and the handling and disposal of Government property. and Congress made more changes in 1948. From then until 2008, the WSLA’s relevant language was as follows: “When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Con- gress.” Act of June 25, 1948, In addition, Congress codified the WSLA in Title 18 of the United States Code, titled “Crimes and Criminal Procedure.” Finally, in 2008, Congress once again amended the WSLA, this time in two relevant ways. First, as noted, Congress changed the Act’s triggering event, providing that tolling is available not only “[w]hen the United States is at war,” but also when Congress has enacted a specific authorization for the use of military force. Second, Con- gress extended the suspension period from three to five years.2 —————— 2 The claims giving rise to the present suit originated in 2005, but Cite as: 575 U. S. (2015) 7 Opinion of the Court B With this background in mind, we turn to the question whether the WSLA applies to |
Justice Alito | 2,015 | 8 | majority | Kellogg Brown & Root Services, Inc. v. United States Ex Rel. Carter | https://www.courtlistener.com/opinion/2803250/kellogg-brown-root-services-inc-v-united-states-ex-rel-carter/ | we turn to the question whether the WSLA applies to civil claims as well as crimi- nal charges. We hold that the Act applies only to the latter. We begin with the WSLA’s text. The WSLA suspends “the running of any statute of limitations applicable to any offense involving fraud or attempted fraud against the United States or any agency thereof.” 18 U.S. C. The term “offense” is most commonly used to refer to crimes. At the time of both the 1948 and 2008 amendments to the Act, the primary definition of “offense” in Black’s Law Dictionary referred to crime. Black’s Law Dictionary 1110 (8th ed. 2004) (Black’s) (“A violation of the law; a crime, often a minor one. See CRIME”); (“A crime or misde- meanor; a breach of the criminal laws”); (3d ed. 1933) (same). The 1942 edition of Webster’s similarly states that “offense” “has no technical legal meaning; but it is sometimes used specifically for an indictable crime and sometimes for a misdemeanor or wrong punishable only by fine or penalty.” Webster’s New International Dictionary 1690 (2d ed.). See also Webster’s Third New International Dictionary 1566 (1976) (Webster’s Third) (“an infraction of law: CRIME, MISDEMEANOR”); American Heritage Dictionary 1255 (3d ed. 1992) (“A transgression of law; a crime”). It is true that the term “offense” is sometimes used more broadly. For instance, the 1948 edition of Ballentine’s Law Dictionary cautions: “The words ‘crime’ and ‘offense’ are not necessarily synonymous. All crimes are offenses, but some offenses are not crimes.” Ballentine’s Law Dic- —————— respondent filed the operative complaint in 2011. Resolution of the questions before us in this case does not require us to decide which of these two versions of the WSLA applies to respondent’s claims. 8 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED STATES EX REL. CARTER Opinion of the Court tionary 900. But while the term “offense” is sometimes used in this way, that is not how the word is used in Title 18. Al- though the term appears hundreds of times in Title 18, neither respondent nor the Solicitor General, appearing as an amicus in support of respondent, has been able to find a single provision of that title in which “offense” is em- ployed to denote a civil violation. The Solicitor General cites eight provisions,3 but not one actually labels a civil wrong as an “offense.” Instead, they all simply attach civil penalties to criminal offenses—as the Deputy Solicitor General acknowledged at oral argument. See Tr. of Oral Arg. 28–29. Not only is this pattern of usage telling, but when Title 18 |
Justice Alito | 2,015 | 8 | majority | Kellogg Brown & Root Services, Inc. v. United States Ex Rel. Carter | https://www.courtlistener.com/opinion/2803250/kellogg-brown-root-services-inc-v-united-states-ex-rel-carter/ | is this pattern of usage telling, but when Title 18 was enacted in 1948, the very first provision, what was then classified all offenses as crimes. That provision read in pertinent part as follows: Offenses classified. “Notwithstanding any Act of Congress to the contrary: “(1) Any offense punishable by death or imprison- ment for a term exceeding one year is a felony. “(2) Any other offense is a misdemeanor.” 62 Stat. 684 (repealed Oct. 12, 1984). The Solicitor General correctly points out that regulatory provisions outside Title 18 sometimes use the term “of- fense” to describe a civil violation, see Brief for United States as Amicus Curiae 10 (United States Brief), but it is significant that Congress chose to place the WSLA in Title 18. Although we have cautioned against “plac[ing] too much significance on the location of a statute in the Unit- ed States Code,” Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369, 376 (2004), we have in similar circumstances —————— 3 18 U.S. C. 248, 670, 1033(a), 1964, 2292(a), 2339B, 2339C. Cite as: 575 U. S. (2015) 9 Opinion of the Court regarded the placement of a provision as relevant in de- termining whether its content is civil or criminal in na- ture, see It is also revealing that Congress has used clearer and more specific language when it has wanted to toll the statutes of limitations for civil suits as well as crimes. Only two months after enacting the WSLA, Congress passed a tolling statute for “violations of the antitrust laws now indictable or subject to civil proceedings.” Act of Oct. 10, 1942, ch. 589, (emphasis added). Congress obviously could have included a similar “civil proceedings” clause in the WSLA, but it did not do so. The WSLA’s history provides what is perhaps the strongest support for the conclusion that it applies only to criminal charges. The parties do not dispute that the term “offenses” in the 1921 and 1942 suspension statutes ap- plied only to crimes, Brief for Petitioners 23; Brief for Respondent at 24–25, and after 1942, the WSLA continued to use that same term. The retention of the same term in the later laws suggests that no fundamental alteration was intended. Respondent and the Government latch onto the 1944 Act’s removal of the phrase “now indictable under any statute” and argue that this deletion had the effect of sweeping in civil claims, but this argument is most im- probable. Simply deleting the phrase “now indictable under the statute,” while leaving the operative term “of- fense” unchanged would have been an obscure |
Justice Alito | 2,015 | 8 | majority | Kellogg Brown & Root Services, Inc. v. United States Ex Rel. Carter | https://www.courtlistener.com/opinion/2803250/kellogg-brown-root-services-inc-v-united-states-ex-rel-carter/ | operative term “of- fense” unchanged would have been an obscure way of substantially expanding the WSLA’s reach. Fundamental changes in the scope of a statute are not typically accom- plished with so subtle a move. Converting the WSLA from a provision that suspended the statute of limitations for criminal prosecutions into one that also suspended the time for commencing a civil action would have been a big step. If Congress had meant to make such a change, we 10 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED STATES EX REL. CARTER Opinion of the Court would expect it to have used language that made this important modification clear to litigants and courts. Respondent’s and the Government’s interpretation of the significance of the deletion of the phrase “now indict- able” ignores a more plausible explanation, namely, Con- gress’ decision to make the WSLA applicable, not just to offenses committed in the past during or in the aftermath of particular wars, but also to future offenses committed during future wars. When the phrase “now indictable” first appeared in the 1921 Act, it meant that the statute of limitations was suspended for only those crimes that had already been committed when the Act took effect. This made sense because the 1921 Act was a temporary meas- ure enacted to deal with problems resulting from the First World War. The 1942 Act simply “readopt[ed] the [same] World War I policy” to deal with claims during World War II. The 1944 amendments, however, changed the WSLA from a retroactive measure designed to deal exclusively with past fraud into a measure applicable to future fraud as well. In order to complete this transformation, it was necessary to remove the phrase “now indictable,” which, as noted, limited the applicability of the suspension to offenses committed in the past. Thus, the removal of the “now indictable” provision was more plausibly driven by Con- gress’ intent to apply the WSLA prospectively, not by any desire to expand the WSLA’s reach to civil suits. For all these reasons, we think it clear that the term “offense” in the WSLA applies solely to crimes. But even if there were some ambiguity in the WSLA’s use of that term, our cases instruct us to resolve that ambiguity in favor of the narrower definition. We have said that the WSLA should be “narrowly construed” and “ ‘interpreted in favor of repose.’ ” Applying that principle here means that the term “offense” Cite as: 575 U. S. (2015) 11 Opinion of the Court must be construed to refer only to crimes. Because this case |
Justice Alito | 2,015 | 8 | majority | Kellogg Brown & Root Services, Inc. v. United States Ex Rel. Carter | https://www.courtlistener.com/opinion/2803250/kellogg-brown-root-services-inc-v-united-states-ex-rel-carter/ | be construed to refer only to crimes. Because this case involves civil claims, the WSLA does not suspend the applicable statute of limitations under either the 1948 or the 2008 version of the statute.4 IV Petitioners acknowledge that respondent has raised other arguments that, if successful, could render at least one claim timely on remand. We therefore consider whether respondent’s claims must be dismissed with prejudice under the first-to-file rule. We conclude that dismissal with prejudice was not called for. The first-to-file bar provides that “[w]hen a person brings an action no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S. C. The term “pending” means “[r]emaining undecided; awaiting decision.” Black’s 1314 (10th ed. 2014). See also Webster’s Third 1669 (1976) (defining “pending” to mean “not yet decided: in continu- ance: in suspense”). If the reference to a “pending” action in the FCA is interpreted in this way, an earlier suit bars a later suit while the earlier suit remains undecided but ceases to bar that suit once it is dismissed. We see no reason not to interpret the term “pending” in the FCA in accordance with its ordinary meaning. Petitioners argue that Congress used the term “pend- ing” in a very different—and very peculiar—way. In the FCA, according to petitioners, the term “pending” “is ‘used as a short-hand for the first filed action.’ ” Brief for Peti- tioners 44. Thus, as petitioners see things, the first-filed action remains “pending” even after it has been dismissed, and it forever bars any subsequent related action. —————— 4 This holding obviates any need to determine which version of the WSLA applies or whether the term “war” in the 1948 Act applies only when Congress has formally declared war. 12 KELLOGG BROWN & ROOT SERVICES, INC. v. UNITED STATES EX REL. CARTER Opinion of the Court This interpretation does not comport with any known usage of the term “pending.” Under this interpretation, is still “pend- ing.” So is the trial of Socrates. Petitioners say that Congress used the term “pending” in the FCA as a sort of “short-hand,” but a shorthand phrase or term is employed to provide a succinct way of expressing a concept that would otherwise require a lengthy or complex formulation. Here, we are told that “pending” is shorthand for “first-filed,” a term that is neither lengthy nor complex. And if Congress had wanted to adopt the rule that petitioners favor, the task could have been accomplished in other equally economical ways—for example, by replacing “pending,” with |
Justice Alito | 2,015 | 8 | majority | Kellogg Brown & Root Services, Inc. v. United States Ex Rel. Carter | https://www.courtlistener.com/opinion/2803250/kellogg-brown-root-services-inc-v-united-states-ex-rel-carter/ | in other equally economical ways—for example, by replacing “pending,” with “earlier” or “prior.” Not only does petitioners’ argument push the term “pending” far beyond the breaking point, but it would lead to strange results that Congress is unlikely to have wanted. Under petitioners’ interpretation, a first-filed suit would bar all subsequent related suits even if that earlier suit was dismissed for a reason having nothing to do with the merits. Here, for example, the Thorpe suit, which provided the ground for the initial invocation of the first- to-file rule, was dismissed for failure to prosecute. Why would Congress want the abandonment of an earlier suit to bar a later potentially successful suit that might result in a large recovery for the Government? Petitioners contend that interpreting “pending” to mean pending would produce practical problems, and there is some merit to their arguments. In particular, as petition- ers note, if the first-to-file bar is lifted once the first-filed action ends, defendants may be reluctant to settle such actions for the full amount that they would accept if there were no prospect of subsequent suits asserting the same claims. See Brief for Petitioners at 56–57. Respondent and the United States argue that the doctrine of claim Cite as: 575 U. S. (2015) 13 Opinion of the Court preclusion may protect defendants if the first-filed action is decided on the merits, at 60–61; United States Brief 30, but that issue is not before us in this case. The False Claims Act’s qui tam provisions present many interpretive challenges, and it is beyond our ability in this case to make them operate together smoothly like a finely tuned machine. We hold that a qui tam suit under the FCA ceases to be “pending” once it is dismissed. We therefore agree with the Fourth Circuit that the dismissal with prejudice of respondent’s one live claim was error. * * * The judgment of the United States Court of Appeals for the Fourth Circuit is reversed in part and affirmed in part, and the case is remanded for further proceedings con- sistent with this opinion. It is so ordered |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | We consider in this case what a mutual fund share holder must prove in order to show that a mutual fund investment adviser breached the “fiduciary duty with respect to the receipt of compensation for services” that is imposed by of the Investment Company Act of 1940, 15 U.S. C. (hereinafter ). I A The Investment Company Act of 1940 (Act), 54 Stat. 789, 15 U.S. C. et seq., regulates investment com panies, including mutual funds. “A mutual fund is a pool of assets, consisting primarily of [a] portfolio [of] securi ties, and belonging to the individual investors holding shares in the ” (1979). The following arrangements are typical. A sepa rate entity called an investment adviser creates the mu tual fund, which may have no employees of its own. See (1991); Daily Income (1984); 441 U.S., at –481. The adviser selects 2 JONES v. HARRIS ASSOCIATES L. P. Opinion of the Court the fund’s directors, manages the fund’s investments, and provides other services. See Because of the relationship between a mutual fund and its investment adviser, the fund often “ ‘cannot, as a practical matter sever its relationship with the adviser. Therefore, the forces of arm’s-length bargaining do not work in the mu tual fund industry in the same manner as they do in other sectors of the American economy.’ ” (quoting S. Rep. No. 91–184, p. 5 (1969) (hereinafter S. Rep.)). “Congress adopted the [Investment Company Act of 1940] because of its concern with the potential for abuse inherent in the structure of investment companies.” Daily Income 464 U.S., at (internal quotation marks omitted). Recognizing that the relationship between a fund and its investment adviser was “fraught with poten tial conflicts of interest,” the Act created protections for mutual fund shareholders. at –538 (internal quo tation marks omitted); at 482–483. Among other things, the Act required that no more than 60 per cent of a fund’s directors could be affiliated with the ad viser and that fees for investment advisers be approved by the directors and the shareholders of the See 15(c), 813. The growth of mutual funds in the 1950’s and 1960’s prompted studies of the 1940 Act’s effectiveness in protect ing investors. See Daily Income – 538. Studies commissioned or authored by the Securities and Exchange Commission (SEC or Commission) identi fied problems relating to the independence of investment company boards and the compensation received by in vestment advisers. See In response to such con cerns, Congress amended the Act in 1970 and bolstered shareholder protection in two primary ways. First, the amendments strengthened the “cornerstone” |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | in two primary ways. First, the amendments strengthened the “cornerstone” of the Act’s efforts to check conflicts of interest, the inde pendence of mutual fund boards of directors, which nego Cite as: 559 U. S. (2010) 3 Opinion of the Court tiate and scrutinize adviser at 482. The amendments required that no more than 60 percent of a fund’s directors be “persons who are inter ested persons,” e.g., that they have no interest in or affilia tion with the investment adviser.1 15 U.S. C. 10(a); 2(a)(19); see also Daily Income at 538. These board members are given “a host of special responsibilities.” –483. In par ticular, they must “review and approve the contracts of the investment adviser” annually, and a majority of these directors must approve an adviser’s compensation, 15 U.S. C. 5(c). Second, of the Act imposed upon investment advisers a “fiduciary duty” with respect to compensation received from a mu tual fund, 15 U.S. C. and granted individual investors a private right of action for breach of that duty, The “fiduciary duty” contained in repre sented a delicate compromise. Prior to the adoption of the 1970 amendments, shareholders challenging investment adviser fees under state law were required to meet “com mon-law s of corporate waste, under which an unreasonable or unfair fee might be approved unless the —————— 1 An “affiliated person” includes (1) a person who owns, controls, or holds the power to vote 5 percent or more of the securities of the in vestment adviser; (2) an entity which the investment adviser owns, controls, or in which it holds the power to vote more than 5 percent of the securities; (3) any person directly or indirectly controlling, con trolled by, or under common control with the investment adviser; (4) an officer, director, partner, copartner, or employee of the investment adviser; (5) an investment adviser or a member of the investment adviser’s board of directors; or (6) the depositor of an unincorporated investment adviser. See 2(a)(3). The Act defines “interested person” to include not only all affiliated persons but also a wider swath of people such as the immediate family of affiliated persons, interested persons of an underwriter or investment adviser, legal counsel for the company, and interested broker-dealers. 2(a)(19). 4 JONES v. HARRIS ASSOCIATES L. P. Opinion of the Court court deemed it ‘unconscionable’ or ‘shocking,’ ” and “secu rity holders challenging adviser fees under the [Invest ment Company Act] itself had been required to prove gross abuse of trust.” Daily Income n. 12. Aiming to give shareholders a stronger remedy, the SEC proposed a provision |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | give shareholders a stronger remedy, the SEC proposed a provision that would have empowered the Commission to bring actions to challenge a fee that was not “reasonable” and to intervene in any similar action brought by or on behalf of an investment company. at 538. This approach was included in a bill that passed the House. H. R. 9510, 90th Cong., 1st Sess., (1967); see also S. 1659, 90th Cong., 1st Sess., (1967). Industry representatives, however, objected to this proposal, fearing that it “might in essence provide the Commission with ratemaking authority.” Daily Income 464 U.S., at 538. The provision that was ultimately enacted adopted “a different method of testing management compensation,” (quoting S. Rep., at 5 (internal quotation marks omitted)), that was more favorable to shareholders than the previously available remedies but that did not permit a compensation agreement to be reviewed in court for “reasonableness.” This is the fiduciary duty in B Petitioners are shareholders in three different mutual funds managed by respondent Harris Associates L. P., an investment adviser. Petitioners filed this action in the Northern District of Illinois pursuant to seeking damages, an injunction, and rescission of advisory agree ments between Harris Associates and the mutual funds. The complaint alleged that Harris Associates had violated by charging fees that were “disproportionate to the services rendered” and “not within the range of what would have been negotiated at arm’s length in light of all Cite as: 559 U. S. (2010) 5 Opinion of the Court the surrounding circumstances.” App. 52. The District Court granted summary judgment for Harris Associates. Applying the adopted in v. Merrill Lynch Asset Management, Inc., 694 F.2d 923 (CA2 1982), the court concluded that petitioners had failed to raise a triable issue of fact as to “whether the fees charged were so disproportionately large that they could not have been the result of arm’s-length bargaining.” App. to Pet. for Cert. 29a. The District Court assumed that it was relevant to compare the challenged fees with those that Harris Associates charged its other clients. at 30a. But in light of those comparisons as well as com parisons with fees charged by other investment advisers to similar mutual funds, the Court held that it could not reasonably be found that the challenged fees were outside the range that could have been the product of arm’s-length bargaining. at 29a–32a. A panel of the Seventh Circuit affirmed based on differ ent reasoning, explicitly “disapprov[ing] the approach.” Looking to trust law, the panel noted that, while a trustee “owes an obliga tion of candor in negotiation,” a trustee, |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | “owes an obliga tion of candor in negotiation,” a trustee, at the time of the creation of a trust, “may negotiate in his own interest and accept what the settlor or governance institution agrees to pay.” (citing Restatement (Second) of Trusts and Comment f)). The panel thus reasoned that “[a] fidu ciary duty differs from rate regulation. A fiduciary must make full disclosure and play no tricks but is not subject to a cap on ” 527 F.3d, at In the panel’s view, the amount of an adviser’s compensation would be relevant only if the compensation were “so un usual” as to give rise to an inference “that deceit must have occurred, or that the persons responsible for decision have abdicated.” The panel argued that this understanding of is consistent with the forces operating in the contemporary 6 JONES v. HARRIS ASSOCIATES L. P. Opinion of the Court mutual fund market. Noting that “[t]oday thousands of mutual funds compete,” the panel concluded that “sophis ticated investors” shop for the funds that produce the best overall results, “mov[e] their money elsewhere” when fees are “excessive in relation to the results,” and thus “create a competitive pressure” that generally keeps fees low. at 633–634. The panel faulted on the ground that it “relies too little on markets.” 527 F.3d, at And the panel firmly rejected a comparison between the fees that Harris Associates charged to the funds and the fees that Harris Associates charged other types of clients, observing that “[d]ifferent clients call for different com mitments of time” and that costs, such as research, that may benefit several categories of clients “make it hard to draw inferences from fee levels.” The Seventh Circuit denied rehearing en banc by an equally divided vote. The dissent from the denial of rehearing argued that the panel’s rejec tion of was based “mainly on an economic analysis that is ripe for reexamination.” (opinion of Posner, J.). Among other things, the dissent expressed concern that Harris Associates charged “its captive funds more than twice what it charges independ ent funds,” and the dissent questioned whether high ad viser fees actually drive investors away. We granted certiorari to resolve a split among the Courts of Appeals over the proper under2 556 U. S. (2009). —————— 2 See ; ; v. Prudential Invs. Management LLC, After we granted certiorari in this case, another Court of Appeals adopted the of v. Merrill Lynch Asset Management, Inc., 694 F.2d 923 (CA2 1982). See v. Ameriprise Financial, Inc., 561 F.3d 816 (CA8 2009). Cite as: 559 U. S. (2010) 7 Opinion |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | (CA8 2009). Cite as: 559 U. S. (2010) 7 Opinion of the Court II A Since Congress amended the Investment Company Act in 1970, the mutual fund industry has experienced expo nential growth. Assets under management increased from $38.2 billion in 1966 to over $9.6 trillion in The number of mutual fund investors grew from 3.5 million in 1965 to 92 million in and there are now more than 9,000 open- and closed-end funds.3 During this time, the for an investment ad viser’s fiduciary duty has remained an open question in our Court, but, until the Seventh Circuit’s decision below, something of a consensus had developed regarding the set forth over years ago in The has been adopted by other fed eral courts,4 and “[t]he SEC’s regulations have recognized, and formalized, -like factors.” Brief for United States as Amicus Curiae 23. See14a–101, Sched. 14A, Item 22, para. (c)(11)(i) (2009); 69 Fed. Reg. 39801, n. 31, 39807–39809 (2004). In the present case, both petitioners and respondent generally endorse the approach, although they disagree in some respects about its meaning. In the Second Circuit noted that Congress had not defined what it meant by a “fiduciary duty” with —————— 3 Compare H. R. Rep. No. 2337, 89th Cong., 2d Sess., p. vii (1966), with Investment Company Institute, 2009 Fact Book 15, 20, 72 (49th ed.), online at http://www.icifactbook.org/pdf/2009_factbook.pdf (as visited Mar. 9, 2010, and available in Clerk of Court’s case file). 4 See, e.g., at 822–823; In re Franklin Mut. s Fee Litigation, ; (Mass. 2005); Hunt v. Invesco s Group, Inc., No. H–04–55, 2006 WL 1581846, (SD Tex., June 5, 2006); 2006 WL 2411, *15–*16 (ND Cal., Aug. 14, 2006); see also Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 340–341 (CA2 2006). 8 JONES v. HARRIS ASSOCIATES L. P. Opinion of the Court respect to compensation but concluded that “the test is essentially whether the fee schedule represents a charge within the range of what would have been negotiated at arm’s-length in the light of all of the surrounding circum stances.” The Second Circuit elabo rated that, “[t]o be guilty of a violation of the adviser-manager must charge a fee that is so dispropor tionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s-length bargaining.” “To make this determi nation,” the Court stated, “all pertinent facts must be weighed,” and the Court specifically mentioned “the adviser-manager’s cost in providing the service, the extent to which the adviser-manager realizes econo mies of scale as the fund grows larger, |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | realizes econo mies of scale as the fund grows larger, and the volume of orders which must be processed by the manager.” at 0.5 Observing that competition among advisers for the business of managing a fund may be “virtually non existent,” the Court rejected the suggestion that “the principal factor to be considered in evaluating a fee’s fairness is the price charged by other similar advisers to funds managed by them,” although the Court did not suggest that this factor could not be “taken into account.” The Court likewise rejected the “argument that the lower fees charged by investment advisers to large pension funds should be used as a criterion for de termining fair advisory fees for money market funds,” —————— 5 Other factors cited by the court include (1) the nature and quality of the services provided to the fund and shareholders; (2) the profitability of the fund to the adviser; (3) any “fall-out financial benefits,” those collateral benefits that accrue to the adviser because of its relationship with the mutual fund; (4) comparative fee structure (meaning a comparison of the fees with those paid by similar funds); and (5) the independence, expertise, care, and conscientiousness of the board in evaluating adviser 694 F.2d, –2 Cite as: 559 U. S. (2010) 9 Opinion of the Court since a “pension fund does not face the myriad of daily purchases and redemptions throughout the nation which must be handled by [a money market fund].” at 0, n. 3.6 B The meaning of ’s reference to “a fiduciary duty with respect to the receipt of compensation for services”7 is hardly pellucid, but based on the terms of that provision and the role that a shareholder action for breach of that duty plays in the overall structure of the Act, we conclude that was correct in its basic formulation of what requires: to face liability under an investment adviser must charge a fee that is so dispropor tionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s length bargaining. 1 We begin with the language of As noted, the Seventh Circuit panel thought that the phrase “fiduciary duty” incorporates a taken from the law of trusts. Petitioners agree but maintain that the panel —————— 6 A money market fund differs from a mutual fund in both the types of investments and the frequency of redemptions. A money market fund often invests in short-term money market securities, such as short-term securities of the United States Government or its agencies, bank certificates of deposit, |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | United States Government or its agencies, bank certificates of deposit, and commercial paper. Investors can invest in such a fund for as little as a day, so, from the investor’s perspective, the fund resembles an investment “more like a bank account than [a] traditional investment in securities.” 7 Section 36 (b) provides as follows: “[T]he investment adviser of a registered investment company shall be deemed to have a fiduciary duty with respect to the receipt of com pensation for services, or of payments of a material nature, paid by such registered investment company, or by the security holders thereof, to such investment adviser.” (codified at 15 U.S. C. ). 10 JONES v. HARRIS ASSOCIATES L. P. Opinion of the Court identified the wrong trust-law Instead of the that applies when a trustee and a settlor negoti ate the trustee’s fee at the time of the creation of a trust, petitioners invoke the that applies when a trus tee seeks compensation after the trust is created. Brief for Petitioners 20–23, 35–37. A compensation agreement reached at that time, they point out, “ ‘will not bind the beneficiary’ if either ‘the trustee failed to make a full disclosure of all circumstances affecting the agreement’ ” which he knew or should have known or if the agreement is unfair to the beneficiary. (quoting Restate ment (Second) of Trusts Comment i). Respondent, on the other hand, contends that the term “fiduciary” is not exclusive to the law of trusts, that the phrase means different things in different contexts, and that there is no reason to believe that incorporates the specific meaning of the term in the law of trusts. Brief for Re spondent 34–36. We find it unnecessary to take sides in this dispute. In (19), we discussed the meaning of the concept of fiduciary duty in a context that is analogous to that presented here, and we also looked to trust law. At issue in Pepper was whether a bankruptcy court could disallow a dominant or controlling share holder’s claim for compensation against a bankrupt corpo ration. Dominant or controlling shareholders, we held, are “fiduciar[ies]” whose “powers are powers [held] in trust.” We then explained: “Their dealings with the corporation are subjected to rigorous scrutiny and where any of their contracts or engagements with the corporation is challenged the burden is on the director or stockholder not only to prove the good faith of the transaction but also to show its inherent fairness from the viewpoint of the corporation and those interested therein. The es Cite as: 559 U. S. (2010) 11 Opinion |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | The es Cite as: 559 U. S. (2010) 11 Opinion of the Court sence of the test is whether or not under all the circum stances the transaction carries the earmarks of an arm’s length bargain. If it does not, equity will set it aside.” –307 (emphasis added; footnote omitted); see also ( of fiduciary duty for interested directors). We believe that this formulation expresses the meaning of the phrase “fiduciary duty” in The Investment Company Act modifies this duty in a signifi cant way: it shifts the burden of proof from the fiduciary to the party claiming breach, 15 U.S. C. (1), to show that the fee is outside the range that arm’s-length bargaining would produce. The approach fully incorporates this under standing of the fiduciary duty as set out in Pepper and reflects (1)’s imposition of the burden on the plain tiff. As noted, insists that all relevant circum stances be taken into account, see 694 F.2d, as does (2), (“[A]pproval by the board of directors shall be given such consideration by the court as is deemed appropriate under all the circumstances ” (emphasis added)). And uses the range of fees that might result from arm’s-length bargaining as the benchmark for reviewing challenged fees. 2 ’s approach also reflects ’s place in the statutory scheme and, in particular, its relationship to the other protections that the Act affords investors. Under the Act, scrutiny of investment adviser compen sation by a fully informed mutual fund board is the “cor nerstone of the effort to control conflicts of interest within mutual funds.” The Act interposes disinterested directors as “independent watch dogs” of the relationship between a mutual fund and its 12 JONES v. HARRIS ASSOCIATES L. P. Opinion of the Court adviser. To provide these directors with the information needed to judge whether an adviser’s compensation is excessive, the Act requires advisers to furnish all information “reasona bly necessary to evaluate the terms” of the adviser’s contract, 15 U.S. C. 5(c), and gives the SEC the authority to enforce that requirement. See 41. Board scrutiny of adviser compensation and shareholder suits under are mutually reinforcing but independent mechanisms for controlling conflicts. See Daily Income (Congress intended for suits and directorial approval of adviser con tracts to act as “independent checks on excessive fees”); (“Congress added to the [Act] in 1970 because it concluded that the shareholders should not have to rely solely on the fund’s directors to assure reasonable adviser fees, notwithstanding the in creased disinterestedness of the board” (internal quotation marks omitted)). In recognition of the role of the |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | quotation marks omitted)). In recognition of the role of the disinterested directors, the Act instructs courts to give board approval of an ad viser’s compensation “such consideration as is deemed appropriate under all the circumstances.” (2). Cf. (“[I]t would have been para doxical for Congress to have been willing to rely largely upon [boards of directors as] ‘watchdogs’ to protect share holder interests and yet, where the ‘watchdogs’ have done precisely that, require that they be totally muzzled”). From this formulation, two inferences may be drawn. First, a measure of deference to a board’s judgment may be appropriate in some instances. Second, the appro priate measure of deference varies depending on the circumstances. heeds these precepts. advises that “the expertise of the independent trustees of a fund, whether they are fully informed about all facts bearing on Cite as: 559 U. S. (2010) 13 Opinion of the Court the [investment adviser’s] service and fee, and the extent of care and conscientiousness with which they perform their duties are important factors to be considered in deciding whether they and the [investment adviser] are guilty of a breach of fiduciary duty in violation of” 694 F.2d, at 0. III While both parties in this case endorse the basic Gar approach, they disagree on several important questions that warrant discussion. The first concerns comparisons between the fees that an adviser charges a captive mutual fund and the fees that it charges its independent clients. As noted, the court rejected a comparison between the fees that the adviser in that case charged a money market fund and the fees that it charged a pension 694 F.2d, at 0, n. 3 (noting the “[t]he nature and extent of the services re quired by each type of fund differ sharply”). Petitioners contend that such a comparison is appropriate, Brief for Petitioners 30–31, but respondent disagrees. Brief for Respondent 38–44. Since the Act requires consideration of all relevant factors, 15 U.S. C. (2); see also 5(c), we do not think that there can be any cate gorical rule regarding the comparisons of the fees charged different types of clients. See Daily Income at 537 (discussing concern with investment advisers’ practice of charging higher fees to mutual funds than to their other clients). Instead, courts may give such com parisons the weight that they merit in light of the simi larities and differences between the services that the clients in question require, but courts must be wary of inapt comparisons. As the panel below noted, there may be significant differences between the services provided by an investment adviser |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | significant differences between the services provided by an investment adviser to a mutual fund and those it pro vides to a pension fund which are attributable to the 14 JONES v. HARRIS ASSOCIATES L. P. Opinion of the Court greater frequency of shareholder redemptions in a mutual fund, the higher turnover of mutual fund assets, the more burdensome regulatory and legal obligations, and higher marketing 527 F.3d, (“Different clients call for different commitments of time”). If the services ren dered are sufficiently different that a comparison is not probative, then courts must reject such a comparison. Even if the services provided and fees charged to an inde pendent fund are relevant, courts should be mindful that the Act does not necessarily ensure fee parity between mutual funds and institutional clients contrary to peti tioners’ contentions. See (“Plaintiffs maintain that a fiduciary may charge its controlled clients no more than its independent clients”).8 By the same token, courts should not rely too heavily on comparisons with fees charged to mutual funds by other advisers. These comparisons are problematic because these fees, like those challenged, may not be the product of negotiations conducted at arm’s length. See 537 F.3d, at 731–732 (opinion dissenting from denial of rehearing en banc); (suggesting that fee comparisons, where permitted, might produce a triable issue). First, plaintiffs bear the burden in showing that fees are beyond the range of arm’s-length bargaining. (1). Second, a showing of relevance requires courts to assess any disparity in fees in light of the different markets for advisory services. Only where plain tiffs have shown a large disparity in fees that cannot be explained by the different services in addition to other evidence that the fee is outside the arm’s-length range will trial be appropriate. Cf. App. to Pet. for Cert. 30a; see also In re AllianceBernstein Mut. Excessive Fee Litigation, No. 04 Civ. 4885 (SWK), (SDNY, May 31, 2006) (citing report finding that fee differential resulted from different services and different liabilities assumed). Cite as: 559 U. S. (2010) 15 Opinion of the Court support an inference that competition must therefore also exist between [investment advisers] for fund business. The former may be vigorous even though the latter is virtually non-existent”). Finally, a court’s evaluation of an investment adviser’s fiduciary duty must take into account both procedure and substance. See 15 U.S. C. (2) (requiring defer ence to board’s consideration “as is deemed appropriate under all the circumstances”); cf. Daily Income 464 U.S., at 541 (“Congress intended security holder and SEC actions under on the one hand, and directorial approval of |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | actions under on the one hand, and directorial approval of adviser contracts, on the other, to act as inde pendent checks on excessive fees”). Where a board’s proc ess for negotiating and reviewing investment-adviser compensation is robust, a reviewing court should afford commensurate deference to the outcome of the bargaining process. See 441 U.S., (unaffiliated direc tors serve as “independent watchdogs”). Thus, if the disinterested directors considered the relevant factors, their decision to approve a particular fee agreement is entitled to considerable weight, even if a court might weigh the factors differently. Cf. This is not to deny that a fee may be excessive even if it was negotiated by a board in possession of all relevant information, but such a determination must be based on evidence that the fee “is so disproportionately large that it bears no reason able relationship to the services rendered and could not have been the product of arm’s-length bargaining.” Gar In contrast, where the board’s process was deficient or the adviser withheld important information, the court must take a more rigorous look at the outcome. When an investment adviser fails to disclose material information to the board, greater scrutiny is justified because the withheld information might have hampered the board’s ability to function as “an independent check upon the 16 JONES v. HARRIS ASSOCIATES L. P. Opinion of the Court management.” (internal quotation marks omitted). “Section 36(b) is sharply focused on the question of whether the fees themselves were excessive.” 328 ; see also 15 U.S. C. (imposing a “fiduciary duty with respect to the receipt of compensa tion for services, or of payments of a material nature” (emphasis added)). But an adviser’s compliance or non compliance with its disclosure obligations is a factor that must be considered in calibrating the degree of deference that is due a board’s decision to approve an adviser’s fees. It is also important to note that the for fiduci ary breach under does not call for judicial second guessing of informed board decisions. See Daily Income ; see also 441 U.S., (“Congress consciously chose to address the conflict-of interest problem through the Act’s independent-directors section, rather than through more drastic remedies”). “[P]otential conflicts [of interests] may justify some re straints upon the unfettered discretion of even disinter ested mutual fund directors, particularly in their transac tions with the investment adviser,” but they do not suggest that a court may supplant the judgment of disin terested directors apprised of all relevant information, without additional evidence that the fee exceeds the arm’s length range. In reviewing compensation under the Act |
Justice Alito | 2,010 | 8 | majority | Jones v. Harris Associates L. P. | https://www.courtlistener.com/opinion/1724/jones-v-harris-associates-l-p/ | the arm’s length range. In reviewing compensation under the Act does not require courts to engage in a precise calculation of fees representative of arm’s-length bargaining. See (“Judicial price-setting does not accompany fiduciary duties”). As recounted above, Congress rejected a “reasonableness” requirement that was criticized as charging the courts with rate-setting responsibilities. See Daily Income – 540. Congress’ approach recognizes that courts are not well suited to make such precise calculations. Cf. General Motors (“[T]he Cite as: 559 U. S. (2010) 17 Opinion of the Court Court is institutionally unsuited to gather the facts upon which economic predictions can be made, and profession ally untrained to make them”); Verizon Communications ; see also Concord v. Boston Edison Co., (opinion for the court by Breyer, C. J.) (“[H]ow is a judge or jury to determine a ‘fair price’?”). ’s “so disproportion ately large” reflects this con gressional choice to “rely largely upon [independent direc tor] ‘watchdogs’ to protect shareholders interests.” By focusing almost entirely on the element of disclosure, the Seventh Circuit panel erred. See 527 F.3d, at (An investment adviser “must make full disclosure and play no tricks but is not subject to a cap on compensation”). The which the panel rejected, may lack sharp analytical clarity, but we believe that it accurately reflects the compromise that is embodied in and it has provided a workable for nearly three dec ades. The debate between the Seventh Circuit panel and the dissent from the denial of rehearing regarding today’s mutual fund market is a matter for Congress, not the courts. IV For the foregoing reasons, the judgment of the Court of Appeals is vacated, and the case remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 559 U. S. (2010) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 08–586 JERRY N. JONES, ET AL., PETITIONERS v. HARRIS ASSOCIATES L. P. |
Justice Brennan | 1,973 | 13 | concurring | Kenosha v. Bruno | https://www.courtlistener.com/opinion/108813/kenosha-v-bruno/ | Although I join the opinion of the Court, I would add that I find unimpeachably correct the District Court's conclusion that appellants failed to comply with the requirements of the Due Process Clause in denying renewal of appellees' liquor licenses. Nevertheless, since the defendants named in the complaints were the municipalities of Kenosha and Racine, jurisdiction cannot be based on 28 U.S. C. 1343. ; Appellees did assert 28 U.S. C. 1331 as an alternative ground of jurisdiction, but I agree with the Court's conclusion that existence of the requisite amount in controversy is not, on this record, clearly established. If appellees can prove their allegation that at least $10,000 is in controversy, then 1331 jurisdiction is available, ; cf. and they are clearly entitled to relief. MR. JUSTICE DOUGLAS, dissenting in part. I have expressed my doubts in (dissenting opinion), that our decision in bars equitable relief against a municipality. In that case the legislative history[*] on which that construction of "person" as used in 42 U.S. C. 1983 was based related to the fear of mulcting municipalities with damage awards for unauthorized acts of its police officers. may be read as containing dicta that a remedy by way of declaratory relief or by injunction is barred by 1983 as well as suits for damages. Yet I do not think we should decide that question without full briefing and considered argument. *517 I do, however, concur in a remand for reconsideration by the District Court in light of Board of and APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, DISSENTING IN PART The holding in that municipalities are not subject to suits for damages under 1983 was based largely on Congress' rejection of the Sherman Amendment, which would have provided compensation for individuals from the country, city, or parish for any damage caused by riots, etc. Two theories were expressed in the debates for rejecting the amendment. The first was the notion that civil liability for damages might destroy or paralyze local governments. Also, it was thought unjust that local governments (and indirectly the citizenry at large) should be subject to damages when they bore no responsibility. Although the Senate passed the amendment, Senator Stevenson stated in opposition: "This amendment wholly ignores the municipal liability created by the omission of direct, absolute corporate duty. We are now, for the first time, presented with an enactment which undertakes to create a corporate liability for personal injury which no prudence or foresight could have prevented. "But, Mr. President, this amendment is clearly unconstitutional. If it is attempted to be carried out it |
Justice Brennan | 1,973 | 13 | concurring | Kenosha v. Bruno | https://www.courtlistener.com/opinion/108813/kenosha-v-bruno/ | unconstitutional. If it is attempted to be carried out it will destroy the municipal government of every city and the local government of every country where this liability is created Let a judgment be recovered against any of our cities in the East or West and a lien is by this amendment created *518 not only upon the municipal property of such city, but upon every dollar in the city treasury. The credit of the city, the means to discharge its contracts and its most solemn obligations are by the operation of this act to be applied to such judgment. "I have heard no reason for such a lien. If carried out to its full extent, it must prove utterly destructive of the State municipalities! And whence does the Federal Government derive its power in any manner or form to touch the revenues of the State governments or any of its agencies?" Cong. Globe, 42d Cong., 1st Sess., 762. Senators Casserly and Bayard expressed similar concerns. In the House, Congressman Kerr stated: "There is, therefore, a total and absolute absence of notice, constructive or implied, within any decent limits of law or reason. And the bill itself is significantly silent on the subject of notice to these counties and parishes or cities. Under this section it is not required, before liability shall attach, that it shall be known that there was any intention to commit these crimes, so as to fasten liability justly upon the municipality. It takes the property of one and gives it to another by mere force, without right, in the absence of guilt or knowledge " See also And Congressman Farnsworth was concerned that the amendment would "put the hand of the national Government into [local government's] treasury." There was another strain, however. Congressman Brooks viewed the amendment as raising the old struggle between the Federalists and the Democrats. *519 In the words of Congressman Poland, one of the House managers of the Conference Committee, "[w]ith these local subdivisions we have nothing to do. We can impose no duty upon them; we can impose no liability upon them in any manner whatever." He stated further: "But the enforcing a liability, existing by their own contract, or by a State law, in the courts, is a very widely different thing from devolving a new duty or liability upon them by the national Government, which has no power either to create or destroy them, and no power or control over them whatever. ". Counties and towns are subdivisions of the State government, and exercise in a limited sphere |
Justice Brennan | 1,973 | 13 | concurring | Kenosha v. Bruno | https://www.courtlistener.com/opinion/108813/kenosha-v-bruno/ | of the State government, and exercise in a limited sphere and extent the powers of the State delegated to them; they are created by the State for the purpose of carrying out the laws and policy of the State, and are subject only to such duties and liabilities as State laws impose upon them." After the House finally had defeated the Sherman Amendment and the Conference substitute for the amendment, Poland stated: "I did understand from the action and vote of the House that the House had solemnly decided that in their judgment Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of State law." See also 799 (statement of Cong. Farnsworth). To the extent that the Sherman Amendment was directed only at liability for damages and the devastating effect those damages might have on municipalities, it *520 seems that the defeat of the amendment does not affect the existence vel non of an equitable action. One may, of course, argue that the sweeping statements of Poland and others that Congress had no constitutional power (however defective that argument is in light of developed constitutional doctrine) to authorize any action against a subdivision of state government indicated a purpose to go the whole way and not allow even injunctive relief against a municipality. But this is a matter which the Court has never faced. |
Justice Sotomayor | 2,011 | 24 | concurring | Davis v. United States | https://www.courtlistener.com/opinion/218926/davis-v-united-states/ | Under our precedents, the primary purpose of the exclu sionary rule is “to deter future Fourth Amendment viola tions.” Ante, at 6; see, e.g., v. United States, 555 U.S. 135, 141 (2009); 347– 348 (1987). Accordingly, we have held, application of the exclusionary rule is unwarranted when it “ ‘does not result in appreciable deterrence.’ ” 11 (1995) (quoting United 454 (1976)). In the circumstances of this case, where “binding appellate precedent specifically authorize[d] a particular police practice,” ante, at 11—in accord with the holdings of nearly every other court in the country— application of the exclusionary rule cannot reaably be expected to yield appreciable deterrence. I am thus compelled to conclude that the exclusionary rule does not apply in this case and to agree with the Court’s disposition. This case does not present the markedly different ques tion whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled. As we previously recognized in deciding whether to apply a Fourth Amendment holding retroac tively, when police decide to conduct a search or seizure in the absence of case law (or other authority) specifically 2 DAVIS v. UNITED STATES SOTOMAYOR, J., concurring in judgment sanctioning such action, exclusion of the evidence obtained may deter Fourth Amendment violations: “If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be coun terbalanced by official certainty that, so long as the Fourth Amendment law in the area remained un settled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question.” United (footnote omitted). The Court of Appeals recognized as much in limiting its application of the good-faith exception it articulated in this case to situations where its “precedent on a given point [is] unequivocal.” ; see at –1267 (“[W]e do not mean to encourage police to adopt a ‘ “let’s-wait-until-it’s-decided approach” ’ to ‘unset tled’ questions of Fourth Amendment law” (quoting John 457 U.S., at )). Whether exclusion would deter Fourth Amendment violations where appellate precedent does not specifically authorize a certain practice and, if so, whether the benefits of exclusion would outweigh its costs are questions unanswered by our previous decisions. The dissent suggests that today’s decision essentially answers those questions, noting that an officer who con ducts a search in the face of unsettled precedent “is no more culpable than an officer |
Justice Sotomayor | 2,011 | 24 | concurring | Davis v. United States | https://www.courtlistener.com/opinion/218926/davis-v-united-states/ | of unsettled precedent “is no more culpable than an officer who follows erroneous ‘bind ing precedent.’ ” Post, at 7 (opinion of BREYER, J.). The Court does not address this issue. In my view, whether an officer’s conduct can be characterized as “culpable” is not itself dispositive. We have never refused to apply the Cite as: 564 U. S. (2011) 3 SOTOMAYOR, J., concurring in judgment exclusionary rule where its application would appreciably deter Fourth Amendment violations on the mere ground that the officer’s conduct could be characterized as noncul pable. Rather, an officer’s culpability is relevant because it may inform the overarching inquiry whether exclusion would result in appreciable deterrence. See ante, at 8 (“The basic insight of the Leon line of cases is that the deterrence benefits of exclusion var[y] with the culpability of the law enforcement conduct at issue” (internal quota tion marks omitted; alteration in original)); see also, e.g., (“The extent to which the exclu sionary rule is justified by these deterrence principles varies with the culpability of the law enforcement con duct”); United )). Whatever we have said about culpability, the ultimate ques tions have always been, one, whether exclusion would result in appreciable deterrence and, two, whether the benefits of exclusion outweigh its costs. See, e.g., ante, at 6–7; ; As stated, whether exclusion would result in appreciable deterrence in the circumstances of this case is a different question from whether exclusion would appreciably deter Fourth Amendment violations when the governing law is unsettled. The Court’s answer to the former question in this case thus does not resolve the latter one. Cite as: 564 U. S. (2011) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–11328 WILLIE GENE DAVIS, PETITIONER v. |
Justice Burger | 1,974 | 12 | dissenting | United States v. Maze | https://www.courtlistener.com/opinion/108900/united-states-v-maze/ | I join in the dissent of MR. JUSTICE WHITE which follows but add a few observations on an aspect of the Court's holding which seems of some importance. Section 1341 of Title 18 U.S. C. has traditionally been used against fraudulent activity as a first line of defense. When a "new" fraud developsas constantly happens the mail fraud statute becomes a stopgap device to deal *406 on a temporary basis with the new phenomenon, until particularized legislation can be developed and passed to deal directly with the evil. "Prior to the passage of the 1933 [Securities] Act, most criminal prosecutions for fraudulent securities transactions were brought under the Federal Mail Fraud Statute." Criminal Prosecutions Under the Federal Securities Laws and Related Statutes: The Nature and Development of SEC Criminal Cases, Loan sharks were brought to justice by means of 18 U.S. C. 1341, Lynch, Prosecuting Loan Sharks Under the Mail Fraud Statute, 14 Ford. L. Rev. 150 (1945), before Congress, in 1968, recognized the interstate character of loansharking and the need to provide federal protection against this organized crime activity, and enacted 18 U.S. C. 891 et seq., outlawing extortionate extensions of credit. Although inadequate to protect the buying and investing public fully, the mail fraud statute stood in the breach against frauds connected with the burgeoning sale of undeveloped real estate, until Congress could examine the problems of the land sales industry and pass into law the Interstate Land Sales Full Disclosure Act, 15 U.S. C. 1701 et seq. Coffey & Welch, Federal Regulation of Land Sales: Full Disclosure Comes Down to Earth, Similarly, the mail fraud statute was used to stop credit card fraud, before Congress moved to provide particular protection by passing 15 U.S. C. 1644. The mail fraud statute continues to remain an important tool in prosecuting frauds in those areas where legislation has been passed more directly addressing the fraudulent conduct. Mail fraud counts fill pages of securities fraud indictments even today. 39 Geo. Wash. L. Rev., at Despite the pervasive Government *407 regulation of the drug industry, postal fraud statutes still play an important role in controlling the solicitation of mail-order purchases by drug distributors based upon fraudulent misrepresentations. Hart, The Postal Fraud Statutes: Their Use and Abuse, 11 Food Drug Cosm. L. J. 245, 247, 261 (1956). Maze's interstate escapadeof which there are numberless counterparts demonstrates that the federal mail fraud statute should have a place in dealing with fraudulent credit card use even with 15 U.S. C. 1644 on the books. The criminal mail fraud statute must remain strong to be able |
Justice Burger | 1,974 | 12 | dissenting | United States v. Maze | https://www.courtlistener.com/opinion/108900/united-states-v-maze/ | criminal mail fraud statute must remain strong to be able to cope with the new varieties of fraud that the ever-inventive American "con artist" is sure to develop. Abuses in franchising and the growing scandals from pyramid sales schemes are but some of the threats to the financial security of our citizenry that the Federal Government must be ever alert to combat. Comment, Multi-Level or Pyramid Sales Systems: Fraud or Free Enterprise, 18 S. D. L. Rev. 358 (1973). The decision of the Court in this case should be viewed as limited to the narrow facts of Maze's criminal adventures on which the Court places so heavy a reliance, and to the Court's seeming desire not to flood the federal courts with a multitude of prosecutions for relatively minor acts of credit card misrepresentation considered as more appropriately the business of the States. The Court of Appeals, whose judgment is today affirmed, was careful to state that "[w]e do not hold that the fraudulent use of a credit card can never constitute a violation of the mail fraud statute." The Court's decision, then, correct or erroneous, does not mean that the United States ought, in any way, to slacken its prosecutorial efforts under 18 U.S. C. 1341 against those who would use the mails in schemes to defraud the guileless members of the public with *408 worthless securities, patent medicines, deeds to arid and inaccessible tracts of land, or other empty promises of instant wealth and happiness. I agree with MR. JUSTICE WHITE that the judgment of the Court of Appeals was error and should be reversed. MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR. |
per_curiam | 1,970 | 200 | per_curiam | Dowell v. Board of Ed. of Oklahoma City Public Schools | https://www.courtlistener.com/opinion/108019/dowell-v-board-of-ed-of-oklahoma-city-public-schools/ | In this school desegregation case, the District Court for the Western District of Oklahoma, by order entered August 13, 1969, approved respondent Oklahoma City School Board's proposal for furthering desegregation of some Oklahoma City schools by revising school attendance *270 boundaries effective September 2, 1969, the start of the 1969-1970 school year. The order also decreed that the School Board prepare and submit on or before November 1, 1969, a comprehensive plan for the complete desegregation of the entire school system. Intervenors of the "McWilliams Class" appealed to the Court of Appeals for the Tenth Circuit from the provision of the order which approved implementation of the School Board's proposed boundary changes by September 2, 1969, and sought a stay of that provision pending decision of the appeal. The Court of Appeals, on August 27, 1969, instead of limiting relief to the requested stay, summarily vacated the District Court's approval of the School Board's proposal. The Court of Appeals held that consideration of the proposal was inappropriate "at this stage of the proceedings" and should await the District Court's "consideration and adoption of a full and comprehensive plan for the complete desegregation and integration of the Oklahoma City School system as contemplated in the court's order of August 13, 1969." The petition for certiorari is granted.[1] The Court of Appeals erred in holding that the District Court's approval of the School Board's plan must be vacated because consideration of the proposal was inappropriate except in the context of a comprehensive city-wide plan. The burden on a school board is to desegregate an unconstitutional dual system at once. ; Alexander v. Holmes County Board of ante, p. 19. Since *271 the District Court ordered the desegregation measures into effect, and since the petitioners did not object to their scope, the Court of Appeals should have permitted their implementation pending argument and decision of the appeal. Alexander v. Holmes County Board of The order of the Court of Appeals is therefore vacated and the case is remanded to that court promptly to hear and determine, consistently with Alexander, all pending appeals from the District Court order.[2] It is so ordered. |
Justice Burger | 1,971 | 12 | majority | Organization for a Better Austin v. Keefe | https://www.courtlistener.com/opinion/108334/organization-for-a-better-austin-v-keefe/ | We granted the writ in this case to consider the claim that an order of the Circuit Court of Cook County, Illinois, enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois, violates petitioners' rights under the Federal Constitution. Petitioner Organization for a Better Austin (OBA) is a racially integrated community organization in the *416 Austin neighborhood of Chicago. Respondent is a real estate broker whose office and business activities are in the Austin neighborhood. He resides in Westchester, Illinois, a suburb of Chicago some seven miles from the Austin area. OBA is an organization whose stated purpose is to "stabilize" the racial ratio in the Austin area. For a number of years the boundary of the Negro segregated area of Chicago has moved progressively west to Austin. OBA, in its efforts to "stabilize" the areaso it describes its programhas opposed and protested various real estate tactics and activities generally known as "block-busting" or "panic peddling." It was the contention of OBA that respondent had been one of those who engaged in such tactics, specifically that he aroused the fears of the local white residents that Negroes were coming into the area and then, exploiting the reactions and emotions so aroused, was able to secure listings and sell homes to Negroes. OBA alleged that since 1961 respondent had from time to time actively promoted sales in this manner by means of flyers, phone calls, and personal visits to residents of the area in which his office is located, without regard to whether the persons solicited had expressed any desire to sell their homes. As the "boundary" marking the furthest westward advance of Negroes moved into the Austin area, respondent is alleged to have moved his office along with it. Community meetings were arranged with respondent to try to persuade him to change his real estate practices. Several other real estate agents were prevailed on to sign an agreement whereby they would not solicit property, by phone, flyer, or visit, in the Austin community. Respondent who has consistently denied that he is engaging in "panic peddling" or "blockbusting" refused to sign, contending that it was his right under Illinois law to solicit real estate business as he saw fit. *417 Thereafter, during September and October of 1967, members of petitioner organization distributed leaflets in Westchester describing respondent's activities. There was no evidence of picketing in Westchester. The challenged publications, now enjoined, were critical of respondent's real estate practices in the Austin neighborhood; one of the leaflets set out the business card respondent used to solicit listings, quoted him as |
Justice Burger | 1,971 | 12 | majority | Organization for a Better Austin v. Keefe | https://www.courtlistener.com/opinion/108334/organization-for-a-better-austin-v-keefe/ | business card respondent used to solicit listings, quoted him as saying "I only sell to Negroes," cited a Chicago Daily News article describing his real estate activities and accused him of being a "panic peddler." Another leaflet, of the same general order, stated that: "When he signs the agreement, we stop coming to Westchester." Two of the leaflets requested recipients to call respondent at his home phone number and urge him to sign the "no solicitation" agreement. On several days leaflets were given to persons in a Westchester shopping center. On two other occasions leaflets were passed out to some parishioners on their way to or from respondent's church in Westchester. Leaflets were also left at the doors of his neighbors. The trial court found that petitioners' "distribution of leaflets was on all occasions conducted in a peaceful and orderly manner, did not cause any disruption of pedestrian or vehicular traffic, and did not precipitate any fights, disturbances or other breaches of the peace." One of the officers of OBA testified at trial that he hoped that respondent would be induced to sign the no-solicitation agreement by letting "his neighbors know what he was doing to us." Respondent sought an injunction in the Circuit Court of Cook County, Illinois, on December 20, 1967. After an adversary hearing the trial court entered a temporary injunction enjoining petitioners "from passing out pamphlets, leaflets or literature of any kind, and from picketing, anywhere in the City of Westchester, Illinois." *418 On appeal to the Appellate Court of Illinois, First District, that court affirmed. It sustained the finding of fact that petitioners' activities in Westchester had invaded respondent's right of privacy, had caused irreparable harm, and were without adequate remedy at law. The Appellate Court appears to have viewed the alleged activities as coercive and intimidating, rather than informative and therefore as not entitled to First Amendment protection. The Appellate Court rested its holding on its belief that the public policy of the of Illinois strongly favored protection of the privacy of home and family from encroachment of the nature of petitioners' activities.[*] It is elementary, of course, that in a case of this kind the courts do not concern themselves with the truth or validity of the publication. Under the injunction, so far as it imposes prior restraint on speech and publication, constitutes an impermissible restraint on First Amendment rights. Here, as in that case, the injunction operates, not to redress alleged private wrongs, but to suppress, on the *419 basis of previous publications, distribution of literature "of any kind" in a city |
Justice Burger | 1,971 | 12 | majority | Organization for a Better Austin v. Keefe | https://www.courtlistener.com/opinion/108334/organization-for-a-better-austin-v-keefe/ | publications, distribution of literature "of any kind" in a city of 18,000. This Court has often recognized that the activity of peaceful pamphleteering is a form of communication protected by the First Amendment. E. g., ; ; In sustaining the injunction, however, the Appellate Court was apparently of the view that petitioners' purpose in distributing their literature was not to inform the public, but to "force" respondent to sign a no-solicitation agreement. The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent's conduct by their activities; this is not fundamentally different from the function of a newspaper. See Petitioners were engaged openly and vigorously in making the public aware of respondent's real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability. Any prior restraint on expression comes to this Court with a "heavy presumption" against its constitutional validity. ; Bantam Books, Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint. He has not met that burden. No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion *420 of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record. Rowan v. United s Post Office Dept., (19), relied on by respondent, is not in point; the right of privacy involved in that case is not shown here. Among other important distinctions, respondent is not attempting to stop the flow of information into his own household, but to the public. Accordingly, the injunction issued by the Illinois court must be vacated. Reversed. MR. |
Justice Ginsburg | 2,012 | 5 | dissenting | Compucredit Corp. v. Greenwood | https://www.courtlistener.com/opinion/620568/compucredit-corp-v-greenwood/ | Congress enacted the Credit Repair Organizations Act (CROA) to protect consumers “who have experienced credit problems”—“particularly those of limited economic means”—against the unfair and deceptive practices of credit repair organizations. 15 U.S. C. Central to the legislation, Congress sought to arm consumers with information needed to make intelligent decisions about purchasing a repair organization’s services. To that end, Congress directed that, “before [execution of] any contract between [a] consumer and [a] credit repair organiza tion,” the organization must make certain disclosures. One of the required disclosures reads: “You have a right to sue a credit repair organization that violates the [CROA]. This law prohibits decep tive practices by [such] organizations.” The Act’s civil-liability provision describes suits consumers may bring in court: individual and class actions for dam ages (actual and punitive) and attorneys’ fees. A further provision renders void any purported waiver of any protec tion or right the Act grants to consumers. The Court today holds that credit repair organizations can escape suit by providing in their take-it-or-leave-it contracts that arbitration will serve as the parties’ sole 2 COMPUCREDIT CORP. v. GREENWOOD GINSBURG, J., dissenting dispute-resolution mechanism. The “right to sue,” the Court explains, merely connotes the vindication of legal rights, whether in court or before an arbitrator. That reading may be comprehensible to one trained to “think like a lawyer.” But Congress enacted the CROA with vulnerable consumers in mind—consumers likely to read the words “right to sue” to mean the right to litigate in court, not the obligation to submit disputes to binding arbitration. In accord with the Ninth Circuit, I would hold that Congress, in an Act meant to curb deceptive practices, did not authorize credit repair organizations to make a false or misleading disclosure—telling consumers of a right they do not, in fact, possess. If the Act affords consumers a nonwaivable right to sue in court, as I believe it does, a credit repair organization cannot retract that right by making arbitration the consumer’s sole recourse. I CompuCredit marketed a credit card to consumers with weak credit ratings. It did so through massive direct-mail and Internet solicitations, urging recipients to acquire a card under the brand name Aspire Visa, and thereby “rebuild poor credit” and “improve [their] credit rating.” App. 40, Complaint ¶11 (internal quotation marks omit ted). Plaintiffs, individuals who applied for and received CompuCredit’s card, sought redress for multiple violations of the CROA. Their complaint alleged that CompuCredit’s promotion al materials told potential customers that no deposit would be required, and that cardholders would receive, upfront, a credit line of $300. In fact, |
Justice Ginsburg | 2,012 | 5 | dissenting | Compucredit Corp. v. Greenwood | https://www.courtlistener.com/opinion/620568/compucredit-corp-v-greenwood/ | would receive, upfront, a credit line of $300. In fact, plaintiffs asserted, they were charged an initial finance fee of $29, a monthly fee of $6.50, and an annual fee of $150, assessed immedi ately against the $300 limit. In the aggregate, plaintiffs calculated, fees charged the first year amounted to $257. Cite as: 565 U. S. (2012) 3 GINSBURG, J., dissenting CompuCredit’s fee exactions did appear in the promotional materials: in small print, buried amidst other information, and removed from the clearer representation that no de- posit would be required. at 40–41, Complaint ¶¶12– 13. Far from improving their credit rating, plaintiffs complained, CompuCredit knew that its card, saddled with these fees, “would not provide any meaningful assis tance whatsoever with regard to rebuilding credit and improving a credit rating.” Complaint ¶41(b). Furthermore, plaintiffs stated, CompuCredit did not provide them with the written disclosures of their rights required by the CROA. Complaint ¶23. Seeking damages for the alleged violations, along with attorneys’ fees, plaintiffs requested class certification. In the District Court and Court of Appeals, they successfully resisted CompuCredit’s motion to compel arbitration pursuant to a form contract that barred class proceedings.1 This Court, however, interprets the CROA to permit Com- puCredit’s demand that plaintiffs proceed, if at all, before an arbitrator.2 I read the governing statute differently. II Three sections of the CROA, considered together, indi cate Congress’ intention to preclude mandatory, creditor imposed, arbitration of CROA claims. See 15 U.S. C. 1679g, and 1679f. Before entering into any —————— 1 The contract signed by cardholders did not itself require arbitration. Rather, it incorporated by reference an “enclosed insert” providing that all disputes would be resolved by arbitration at the discretion of Com puCredit or the cardholder. App. 61–63. 2 CompuCredit’s form contract specified that arbitration was to occur under the auspices of the National Arbitration Forum (NAF). In 2009, after the Attorney General of Minnesota filed an action alleging that NAF had engaged in numerous violations of consumer-protection laws, NAF entered into a consent decree barring it from handling consumer arbitrations. See Press Release by Lori Swanson, Attorney General of Minnesota 4 COMPUCREDIT CORP. v. GREENWOOD GINSBURG, J., dissenting consumer contract, credit repair organizations must give potential customers a written statement of rights they possess under that Act and related consumer-protection laws. Congress dictated every word of the required notification. Credit repair organizations must tell consumers, in plain terms, how they may enforce their rights: “You have a right to sue a credit repair organiza tion that violates the Credit Repair Organization Act.” The “right to sue” |
Justice Ginsburg | 2,012 | 5 | dissenting | Compucredit Corp. v. Greenwood | https://www.courtlistener.com/opinion/620568/compucredit-corp-v-greenwood/ | violates the Credit Repair Organization Act.” The “right to sue” refers to the claim for relief Congress afforded consumers in “Any person” who violates another’s rights under the CROA “shall be liable” for actual damages and attorneys’ fees, and may be liable for punitive damages as well. The Act sets out the factors “the court shall consider” in determining the amount of punitive damages “the court may allow” aggrieved consumers to recover, either individually or as a class. and (b). The liability created here, in is precisely what the consumer, in light of may sue to enforce. The Act renders void and unenforceable “[a]ny waiver by any consumer of any protection provided by or any right of the consumer under this subchapter.” (emphasis added).3 The rights listed in rendered nonwaiv- able by are the “right to sue” and the “right to cancel [a] contract for any reason within 3 business days from the date [the consumer] signed it.”4 —————— 3 Section 1679f(a), omitted from the Court’s statutory appendix, ante, at 11–14, provides in full: “Any waiver by any consumer of any protection provided by or any right of the consumer under this subchapter— “(1) shall be treated as void; and “(2) may not be enforced by any Federal or State court or any other person.” 4 Two provisions, although described by as consumer “right[s],” are not rendered nonwaivable by because they are not “right[s] under this subchapter.” Rather, the “right to dispute Cite as: 565 U. S. (2012) 5 GINSBURG, J., dissenting The question on which this case turns is what Congress meant when it created a nonwaivable “right to sue.” Recall that Congress’ target audience in the CROA is not composed of lawyers and judges accustomed to nuanced reading of statutory texts, but laypersons who receive a disclosure statement in the mail. Recall, as well, Con gress’ findings that these individuals are often “of limited economic means and inexperienced in credit matters.” Attributing little importance to this context, the Court construes the right to sue as “the legal right, enforceable in court, to recover damages without re gard to whether the suit in court has to be preceded by an arbitration proceeding.” Ante, at 8. I read Congress’ words without that sophisticated gloss: The right to sue, I would hold, means the right to litigate in court. The Court is quite right in recognizing that consumers “have the legal right, enforceable in court, to recover dam ages from credit repair organizations that violate the CROA.” But the Court is quite wrong, as I see it, to characterize as merely |
Justice Ginsburg | 2,012 | 5 | dissenting | Compucredit Corp. v. Greenwood | https://www.courtlistener.com/opinion/620568/compucredit-corp-v-greenwood/ | quite wrong, as I see it, to characterize as merely “imprecise,” Congress’ failure to include the caveat that access to court may be condi tioned upon an anterior arbitration. The “right to sue” may well be “a colloquial method of communicating to consumers.” See But it surely is not colloquially understood by recipients of the required disclosures as the right, not to adjudicate in court, but only to seek, or defend against, court enforcement of an award rendered by the arbitrator chosen by the credit repair organization. Few, if any, credit repair customers would equate the “right to —————— inaccurate information in your credit report” and the “right to obtain a copy of your credit report” referred to in are rights conferred elsewhere in the U. S. Code. See Section 1679f also makes nonwaivable the “protection[s] provided under this subchap ter” (emphasis added); these protections include the prohibition of cer tain business practices, see and the provision, in writing, of certain contractual terms and conditions, see 6 COMPUCREDIT CORP. v. GREENWOOD GINSBURG, J., dissenting sue,” with the extremely limited judicial review given to an arbitrator’s award, see, e.g., Hall Street Asso- ciates, L. L. 586–589 (2008). The Court discounts the references to “action,” “class action,” and “court” in the provision that “cre ate[s]” the consumers’ claim for relief. See ante, at 5. Despite similar statutory language, the Court observes, we have enforced arbitration agreements to settle disputes arising under other Acts of Congress. The CROA, how- ever, is distinguished by its disclosure requirements, prime among them, the obligation imposed on the credit repair organization to inform potential customers they “have a right to sue” an organization that violates the Act. Yet the Court refuses to read this language in concert with notwithstanding our frequent ac knowledgment that “a statute is to be read as a whole, since the meaning of statutory language depends on context.” (citation omitted). As just explained, I believe Congress meant what an ordinary reader of the disclosure requirement would likely comprehend: A credit repair organization that engages in deceptive practices may be sued in court. Reducing the required disclosure to insignificance, see ante, at 4–5, the Court’s construction of the CROA scarcely advances the Act’s goals. Congress aimed to ensure pro spective customers “are provided with the information necessary to make an informed decision,” and also to “protect the public from unfair or deceptive advertising and business practices.” 15 U.S. C. The Court’s interpretation, however, enables the very deception Con gress sought to suppress. Today’s decision permits credit repair organizations to deny consumers, through fine print |
Justice Ginsburg | 2,012 | 5 | dissenting | Compucredit Corp. v. Greenwood | https://www.courtlistener.com/opinion/620568/compucredit-corp-v-greenwood/ | permits credit repair organizations to deny consumers, through fine print in a contract, an important right whose disclosure is de creed in the U. S. Code. Cite as: 565 U. S. (2012) 7 GINSBURG, J., dissenting This unfortunate result is not compelled by our prece dents. The Court cites three decisions for the proposition, by now uncontroversial, that the mere existence of a stat- utory right of action does not preclude agreements to arbitrate disputes. See ante, at 5–6 ; Shearson/American Express Inc. v. 482 U.S. 220, 240 (1987); and Mitsubishi Motors ). As the Court acknowledges, ante, at 6, none of the statutes at issue in those cases contained a nonwaiver clause analo gous to Yet the presence of such a clause would not have affected the outcome, the Court maintains; a nonwaiver provision would not have precluded arbitration because the statutes conferred no underlying right to proceed in court. Precisely the point: The CROA differs from the statutes we have construed in the past in just that respect. The Act does not merely create a claim for relief. It designates that claim as an action entailing a “right to sue”; man dates that consumers be informed, prior to entering any contract, of that right; and precludes the waiver of any “right” conferred by the Act. Neither nor Mitsubishi construed a statute of a similar order.5 III The Court’s final point is that, elsewhere, Congress has spoken with particular clarity in guaranteeing a judicial —————— 5 “[I]f one believes [the CROA] establishes a nonwaivable right to initial judicial enforcement,” the Court states, “one must also believe that it establishes a nonwaivable right to initial judicial enforcement in any competent judicial tribunal.” Ante, at 7. In Sportin’ Life’s words, “it ain’t necessarily so.” While there is good reason to believe Congress cared about the institutional location of consumers’ suits under the CROA, there is no reason to think Congress sought to disturb the personal jurisdiction and venue rules that determine in which court a civil action may be brought. 8 COMPUCREDIT CORP. v. GREENWOOD GINSBURG, J., dissenting forum and proscribing arbitration, but here, it did not do so. The two statutes the Court cites as exemplary post date the CROA’s enactment by 14 and 6 years, respective ly. (A third merely delegates regulatory authority over certain arbitration agreements.) See ante, at 9. Notably, these recent statutes were framed following a string of this Court’s decisions compelling arbitration pursuant to contractual stipulations.6 Our decisions have increasingly alerted Congress to the utility of drafting antiwaiver prescriptions with meticulous care. But the Congress |
Justice Ginsburg | 2,012 | 5 | dissenting | Compucredit Corp. v. Greenwood | https://www.courtlistener.com/opinion/620568/compucredit-corp-v-greenwood/ | of drafting antiwaiver prescriptions with meticulous care. But the Congress that drafted the CROA was not similarly stimulated, and we cannot fairly assess that enactment in the light of subse quent legislative responses to developments unknown to the CROA’s drafters. Cf. United States v. Price, 361 U.S. 304, 313 (1960) (“[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.”). Beyond question, the Federal Arbitration Act, “standing alone,” favors the enforcement of arbitration agreements. To depart from that rule, however, Congress need not employ “magic words.” See Tr. of Oral Arg. 6. In determining whether the Arbitration Act’s general rule has been displaced by another statutory prescription, it remains our responsibility to examine carefully “the text of the [statute], its legislative history,” and Congress’ “underlying purposes.” 500 U.S., at 26 (citing ). See also 14 Penn Plaza (arbi tration agreements will be enforced “unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue” (quoting in turn quoting Mitsubishi, 473 U.S., at 6)). No “unmistakably clear” statement is —————— 6 See Brief for American Association for Justice as Amicus Curiae 12, and n. 5 (listing arbitration decisions since the CROA’s enactment). Cite as: 565 U. S. (2012) 9 GINSBURG, J., dissenting necessary to proscribe the arbitration clause CompuCredit seeks to enforce. * * * The CROA mandates that potential customers shall be told of their “right to sue a credit repair organization” for damages arising from deceptive practices. 15 U.S. C. But CompuCredit’s adhesion contract provided that consumers would “not have the right to go to court.” App. 61 (capitalization omitted). Congress’ direction must prevail over CompuCredit’s opposing declaration. Accord ingly, I would affirm the judgment of the Court of Appeals for the Ninth Circuit |
Justice Brennan | 1,983 | 13 | concurring | FTC v. Grolier Inc. | https://www.courtlistener.com/opinion/110950/ftc-v-grolier-inc/ | The Court rests its judgment on two alternative holdings: one a construction of Federal Rule of Civil Procedure 26(b)(3), ante, at 26; the other a more limited holding under Exemption 5 of the Freedom of Information Act (FOIA), 5 U.S. C. 552(b)(5), ante, at 26. I find the latter holding unpersuasive and accordingly would rest exclusively on the former. *29 I I agree wholeheartedly with the Court that Rule 26(b)(3) itself does not incorporate any requirement that there be actual or potential related litigation before the protection of the work-product doctrine applies. As the Court notes, "the literal language of the Rule protects materials prepared for any litigation or trial as long as they were prepared by or for a party to the subsequent litigation." Ante, at 25. A contrary interpretation such as that adopted by the Court of Appeals would work substantial harm to the policies that the doctrine is designed to serve and protect. We described the reasons for protecting work product from discovery in : "In performing his various duties, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways aptly though roughly termed the `work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." *30 The Court of Appeals is doubtless correct in its view that the need to protect attorney work product is at its greatest when the litigation with regard to which the work product was prepared is still in progress; but it does not follow that the need for protection disappears once that litigation (and any "related" litigation) is over. The invasion of "[a]n attorney's thoughts, heretofore inviolate," and the resulting demoralizing effect on the profession, are as great when the invasion takes place later rather than |
Justice Brennan | 1,983 | 13 | concurring | FTC v. Grolier Inc. | https://www.courtlistener.com/opinion/110950/ftc-v-grolier-inc/ | as great when the invasion takes place later rather than sooner. More concretely, disclosure of work product connected to prior litigation can cause real harm to the interests of the attorney and his client even after the controversy in the prior litigation is resolved. Many Government agencies, for example, deal with hundreds or thousands of essentially similar cases in which they must decide whether and how to conduct enforcement litigation. Few of these cases will be "related" to each other in the sense of involving the same private parties or arising out of the same set of historical facts; yet large classes of them may present recurring, parallel factual settings and identical legal and policy considerations.[1] It would be of substantial benefit to an opposing party (and of corresponding detriment to an agency) if the party could obtain work product generated by the agency in connection with earlier, similar litigation against other persons. He would get the benefit of the agency's legal and factual research and reasoning, enabling him to litigate "on wits borrowed from the adversary." *31 Worse yet, he could gain insight into the agency's general strategic and tactical approach to deciding when suits are brought, how they are conducted, and on what terms they may be settled. Nor is the problem limited to Government agencies. Any litigants who face litigation of a commonly recurring type liability insurers, manufacturers of consumer products or machinery, large-scale employers, securities brokers, regulated industries, civil rights or civil liberties organizations, and so on have an acute interest in keeping private the manner in which they conduct and settle their recurring legal disputes. Counsel for such a client would naturally feel some inhibition in creating and retaining written work product that could later be used by an "unrelated" opponent against him and his client. Counsel for less litigious clients as well might have cause for concern in particular cases; fear of even one future "unrelated" but similar suit might instill an undesirable caution, and neither client nor counsel can always be entirely sure what might lie over the horizon. This is precisely the danger of "[i]nefficiency, unfairness[,] sharp practices" and demoralization that Hickman warned against.[2] *32 I do not understand the Court's holding on this point to be limited to the FOIA context. The Court itself quite accurately characterizes its first holding as a "particular construction of Rule 26(b)(3)." Ante, at 26. Indeed, it could hardly do otherwise, since the plain meaning of Exemption 5 is that the scope of the Exemption is coextensive with the scope of the discovery privileges |
Justice Brennan | 1,983 | 13 | concurring | FTC v. Grolier Inc. | https://www.courtlistener.com/opinion/110950/ftc-v-grolier-inc/ | Exemption is coextensive with the scope of the discovery privileges it incorporates. "Exemption 5 exempt[s] those documents, and only those documents, normally privileged in the civil discovery context." See also ; Federal Open Market ; Renegotiation ;[3] Thus, nothing in either FOIA or our decisions construing it authorizes us to define the coverage of the work-product doctrine under Exemption 5 differently from the definition of its coverage that would obtain under Rule 26(b)(3) in an ordinary lawsuit. If a document is work product under the Rule, and if it is an "inter-agency or intra-agency memorandu[m] or lette[r]" under the Exemption, it is absolutely exempt.[4] *33 II Since the Court rejects the "related litigation" test under Rule 26(b)(3), and since that holding necessarily governs the application of the work-product doctrine under Exemption 5, it need go no further. The Court proceeds, however, to put forward a second holding directly under FOIA. It reasons that work product generated in connection with a prior, unrelated litigation would not be " `routinely' available in subsequent litigation," ante, at 27, because at the time of the Court of Appeals' decision in this case a majority of federal courts that had decided the issue had rejected the "related litigation" test. Ante, at 26-27. This holding apparently would preclude disclosure under FOIA even in a district or circuit where the precedents under Rule 26(b)(3) do incorporate the "related litigation" test, since the "majority view" does not depend on the location of the library in which one reads the cases.[5] I grant that uniformity of statutory interpretation is a good thing as a general matter, but I cannot see taking it this far. I confess that the source from which the Court draws its reasoning is a mystery to me. I know of no other statutory context in which the test of discoverability (or anything else) is not what the correct view of the law is, but what the current *34 majority view is.[6] Certainly the plain language of the statute is to the contrary; it directs a court to exempt material "which would not be available by law to a party in litigation with the agency." 5 U.S. C. 552(b)(5) (emphasis added). "By law" presumably means "by the law as correctly construed by the court deciding the case at hand," not "by the law as construed (whether correctly or incorrectly) by a majority of other federal courts." The Court draws the words "routinely" and "normally" from at and n. 16. But as a quick perusal of that case reveals, all we were saying there was that once |
Justice Brennan | 1,983 | 13 | concurring | FTC v. Grolier Inc. | https://www.courtlistener.com/opinion/110950/ftc-v-grolier-inc/ | case reveals, all we were saying there was that once a privilege is held to apply under Exemption 5, it applies absolutely, without regard to whether a party in ordinary discovery might be able to overcome the privilege by some showing of need (an understanding the Court itself embraces, ante, at 28). Alternatively, the Court cites our statement in Grumman Aircraft, at that "Exemption 5 incorporates the privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context." Ante, at 26-27 (emphasis by the Court). Again, however, the context of the quoted passage makes clear that it refers simply to the extent to which the correct state of the law with regard to a privilege may be embodied in cases interpreting a statute or erecting a nonstatutory privilege. The scope of the work-product doctrine on a particular disputed point, for example, may be laid out in some binding precedent of the district court entertaining a given FOIA suit, of the court of appeals for that circuit, or of this Court. Absent a controlling *35 precedent, of course, the district court would ordinarily look to the decisions of other courts to inform its own construction of Rule 26(b)(3). But nothing in Exemption 5, Grumman Aircraft, or anything else of which I am aware authorizes or directs that district court to do anything other than to determine what the legally correct interpretation of the doctrine is, and then to apply it even if the interpretation it reaches is contrary to that of a majority of other courts. Under the Court's reading of the word "routinely," however, it appears that the district court would be obliged to adhere to the majority view even if there were unmistakable precedent in its circuit construing Rule 26(b)(3) to the contrary. I see no warrant for this astonishing principle. Hence, although I agree with the Court's construction of Rule 26(b)(3), I join only its judgment. |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | To address pressing issues related to the large number of aliens within its borders who do not have a lawful right to be in this country, the State of Arizona in 20 enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as S. B. 70, the version introduced in the state senate. See also H. 2162 (20) (amending S. 70). Its stated pur pose is to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlaw fully present in the United States.” Note following Ariz. Rev. Stat. Ann. (West 2012). The law’s provi sions establish an official state policy of “attrition through enforcement.” The question before the ourt is whether federal law preempts and renders invalid four separate provisions of the state law. I The United States filed this suit against Arizona, seek ing to enjoin S. B. 70 as preempted. Four provisions of the law are at issue here. Two create new state offenses. Section 3 makes failure to comply with federal alien registration requirements a state misdemeanor. Ariz. 2 ARIZONA v. UNITED STATES Opinion of the ourt Rev. Stat. Ann. Section 5, in relevant part, makes it a misdemeanor for an unauthor ized alien to seek or engage in work in the State; this provision is referred to as See Two other provisions give specific arrest authority and inves- tigative duties with respect to certain aliens to state and local law enforcement officers. Section 6 authorizes offic ers to arrest without a warrant a person “the officer has probable cause to believe has committed any public offense that makes the person removable from the United States.” Section 2(B) provides that offic ers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immi gration status with the Federal Government. See 51(B) (West 2012). The United States District ourt for the District of Arizona issued a preliminary injunction preventing the four provisions at issue from taking effect. 703 F. Supp. 2d 980, 08 (20). The ourt of Appeals for the Ninth ircuit affirmed. It agreed that the United States had established a likelihood of success on its preemption claims. The ourt of Appeals was unan imous in its conclusion that and 5() were likely preempted. Judge Bea dissented from the decision to uphold the preliminary injunction against and 6. This ourt granted certiorari to resolve important ques tions concerning the interaction of state and federal power with respect to the law of immigration and alien status. |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | with respect to the law of immigration and alien status. 5 U. S. II A The Government of the United States has broad, un doubted power over the subject of immigration and the status of See ; see generally S. Legomsky & Rodríguez, Immigration ite as: 5 U. S. (2012) 3 Opinion of the ourt and Refugee Law and Policy –132 This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Nat- uralization,” U. S. onst., Art. I, cl. 4, and its inher- ent power as sovereign to control and conduct relations with foreign nations, see at (citing United (1936)). The federal power to determine immigration policy is well settled. Immigration policy can affect trade, invest ment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici uriae; see also – (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici uriae 24–30. It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 sepa rate States. See hy 2– 280 (1876); see also The Federalist No. 3, p. 39 (J. Jay) (observing that federal power would be necessary in part because “bordering States under the impulse of sudden irritation, and a quick sense of appar ent interest or injury” might take action that would un dermine foreign relations). This ourt has reaffirmed that “[o]ne of the most important and delicate of all interna tional relationships has to do with the protection of the just rights of a country’s own nationals when those na tionals are in another country.” v. Davidowitz, 312 U.S. 52, 64 Federal governance of immigration and alien status is 4 ARIZONA v. UNITED STATES Opinion of the ourt extensive and complex. ongress has specified catego ries of aliens who may not be admitted to the United States. See 8 U.S. Unlawful entry and unlawful reentry into the country are federal offenses. 1326. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. See Failure to do so is a federal misdemeanor. 1306(a). Federal law also au thorizes States to deny noncitizens a range of public bene fits, |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | States to deny noncitizens a range of public bene fits, and it imposes sanctions on employers who hire unauthorized workers, ongress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See Re moval is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. See Brief for Former ommission ers of the United States Immigration and Naturalization Service as Amici uriae 8–13 (hereinafter Brief for For mer INS ommissioners). Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. See see also, e.g., (asylum), 1229b (cancellation of removal), 1229c (volun tary departure). Discretion in the enforcement of immigration law em braces immediate human concerns. Unauthorized work ers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who com mit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the ite as: 5 U. S. (2012) 5 Opinion of the ourt community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Exec utive Branch to ensure that enforcement policies are con sistent with this Nation’s foreign policy with respect to these and other realities. Agencies in the Department of Homeland Security play a major role in enforcing the country’s immigration laws. United States ustoms and Border Protection (BP) is re- sponsible for determining the admissibility of aliens and securing the country’s borders. See of Homeland Security, Office of Immigration Statistics, Immigration Enforcement : 20, p. 1 In 20, BP’s Border Patrol apprehended almost half a million people. Immigration and ustoms Enforcement (IE), a second agency, “conducts |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | people. Immigration and ustoms Enforcement (IE), a second agency, “conducts criminal investigations involving the enforcement of immigration-related statutes.” at 2. IE also operates the Law Enforcement Support en ter. LES, as the enter is known, provides immigra- tion status information to federal, state, and local officials around the clock. See App. 91. IE officers are respon sible “for the identification, apprehension, and removal of illegal aliens from the United States.” Immigration En forcement Hundreds of thousands of aliens are removed by the Federal Government every year. See (reporting there were 387,2 removals, and 476,405 returns without a removal order, in 20). 6 ARIZONA v. UNITED STATES Opinion of the ourt B The pervasiveness of federal regulation does not di minish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful im migration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. of Homeland Security, Office of Immigration Statistics, 20 Yearbook of Immigration Statistics 93 (Table 35). Unauthor ized aliens who remain in the State comprise, by one es- timate, almost six percent of the population. See Passel & ohn, Pew Hispanic enter, U. S. Unauthorized Im- migration Flows Are Down Sharply Since Mid-Decade 3 (20). And in the State’s most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., amarota & Vaughan, enter for Immigration Studies, Immigration and rime: Assessing a onflicted Situation 16 (Table 3) (esti mating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa ounty, which includes Phoenix). Statistics alone do not capture the full extent of Arizo na’s concerns. Accounts in the record suggest there is an “epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border. Brief for Petitioners 6. Phoenix is a major city of the United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, “DANGER—PUBLI WARNING—TRAVEL NOT REOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed riminals and Smuggling Vehicles Traveling at High Rates of Speed.” App. 170; see also Brief for Petitioners 5–6. The problems posed to the State by illegal immigration must not be underestimated. These concerns are the background for the formal legal ite as: 5 U. S. (2012) 7 Opinion of the ourt analysis that follows. The issue is whether, under pre emption principles, federal law permits Arizona to imple ment |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | pre emption principles, federal law permits Arizona to imple ment the state-law provisions in dispute. III Federalism, central to the constitutional design, adopts the principle that both the National and State Govern ments have elements of sovereignty the other is bound to respect. See (1991); U. S. Term Limits, 838 (KENNEDY, J., concurring). From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy lause provides a clear rule that federal law “shall be the su preme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the onstitution or Laws of any State to the ontrary notwithstanding.” Art. VI, cl. 2. Under this principle, ongress has the power to preempt state law. See ; Gibbons v. Ogden, 2–211 There is no doubt that ongress may withdraw specified powers from the States by enacting a statute containing an express preemption provision. See, e.g., hamber of ommerce of United States of America v. 563 U.S. (slip op., ). State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that ongress, acting within its proper authority, has determined must be regu lated by its exclusive governance. See The intent to displace state law altogether can be inferred from a framework of regulation “so pervasive that ongress left no room for the States to supplement it” or where there is a “federal interest so dominant that the 8 ARIZONA v. UNITED STATES Opinion of the ourt federal system will be assumed to preclude enforcement of state laws on the same subject.” ; see Second, state laws are preempted when they conflict with federal law. 72. This includes cases where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, 1–143 (1963), and those instances where the challenged state law “stands as an obstacle to the accomplishment and execu tion of the full purposes and objectives of ongress,” ; see also 73 (“What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects”). In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of on gress.” 30; see v. Levine, 5 U.S. 5, 5 The four challenged provisions of the state law each must be examined under these preemption principles. IV A Section 3 |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | be examined under these preemption principles. IV A Section 3 Section 3 of S. B. 70 creates a new state misde- meanor. It forbids the “willful failure to complete or carry an alien registration document in violation of 8 United States ode section 1304(e) or 1306(a).” Ariz. Rev. Stat. Ann. 1509(A) In effect, adds a state-law penalty for conduct proscribed by federal law. The United States contends that this state enforcement mechanism intrudes on the field of alien registration, a field in which ongress has left no room for States to ite as: 5 U. S. (2012) 9 Opinion of the ourt regulate. See Brief for United States 27, 31. The ourt discussed federal alien-registration require ments in v. Davidowitz, In 1940, as international conflict spread, ongress added to federal immigration law a “complete system for alien registra tion.” The new federal law struck a careful balance. It punished an alien’s willful failure to register but did not require aliens to carry identification cards. There were also limits on the sharing of registration rec ords and fingerprints. The ourt found that ongress intended the federal plan for registration to be a “single integrated and all-embracing system.” Because this “complete scheme for the registration of aliens” touched on foreign relations, it did not allow the States to “curtail or complement” federal law or to “enforce addi tional or auxiliary regulations.” at 66–. As a con sequence, the ourt ruled that Pennsylvania could not enforce its own alien-registration program. See The present regime of federal regulation is not identi cal to the statutory framework considered in but it remains comprehensive. Federal law now includes a requirement that aliens carry proof of registration. 8 U.S. Other aspects, however, have stayed the same. Aliens who remain in the country for more than 30 days must apply for registration and be fingerprinted. ompare with (1940 ed.). Detailed information is required, and any change of address has to be reported to the Federal Government. ompare 1(a) (2006 ed.), with 456 (1940 ed.). The statute continues to provide penalties for the willful failure to register. ompare (2006 ed.), with § (1940 ed.). The framework enacted by ongress leads to the conclu sion here, as it did in that the Federal Government has occupied the field of alien registration. See American Ins. ARIZONA v. UNITED STATES Opinion of the ourt (characterizing as a field preemption case); Pennsyl- ; see also Dinh, Reassessing the Law of Preemption, 88 Geo. L. J. 2085, 2098–2099, 27 The federal statu tory directives provide a full set of standards governing alien registration, including |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | provide a full set of standards governing alien registration, including the punishment for noncom pliance. It was designed as a “ ‘harmonious whole.’ ” Where ongress occupies an entire field, as it has in the field of alien registration, even com plementary state regulation is impermissible. Field pre emption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to fed- eral standards. See Silkwood v. Kerr-McGee orp., 464 U.S. 238, 249 Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders. If of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement” and “detract[ing] from the ‘integrated scheme of regulation’ created by ongress.” Wisconsin of 288–289 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. See 730– 731, 733 (1949); see also In re Loney, 134 U.S. 375– 376 (1890) (States may not impose their own punishment for perjury in federal courts). Arizona contends that can survive preemption be cause the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption—that States may not enter, in any respect, an area the Federal Gov ernment has reserved for itself—but also is unpersuasive ite as: 5 U. S. (2012) 11 Opinion of the ourt on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework ongress adopted. f. Buckman 347– (States may not impose their own punishment for fraud on the Food and Drug Administration); Wisconsin 88 (States may not impose their own punishment for repeat violations of the National Labor Relations Act). Were to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circum stances where federal officials in charge of the comprehen sive scheme determine that prosecution would frustrate federal policies. There is a further intrusion upon the federal scheme. Even where federal authorities believe prosecution is ap- propriate, there is an inconsistency between and fed- eral law with respect to penalties. Under federal law, the failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation. See |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | by a fine, imprisonment, or a term of probation. See 8 U.S. (2006 ed.); 18 U.S. 561. State law, by contrast, rules out probation as a possible sentence (and also eliminates the possibility of a pardon). See Ariz. Rev. Stat. Ann. (D) This state framework of sanctions creates a conflict with the plan ongress put in place. See Wiscon- sin 86 (“[]onflict is imminent whenever two separate remedies are brought to bear on the same activity” (internal quotation marks omitted)). These specific conflicts between state and federal law simply underscore the reason for field preemption. As it did in the ourt now concludes that, with respect to the subject of alien registration, ongress intended to preclude States from “complement[ing] the federal law, or enforc[ing] additional or auxiliary regulations.” 312 U. S., at 66–. Section 3 is preempted by federal law. 12 ARIZONA v. UNITED STATES Opinion of the ourt B Section 5() Unlike which replicates federal statutory require ments, enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for “an unauthorized alien to knowingly ap- ply for work, solicit work in a public place or perform work as an employee or independent contractor” in Ari zona. –2928() Violations can be punished by a $2,500 fine and incarcera tion for up to six months. See see also (West 20); 13–802(A); 13–902(A)(5). The United States contends that the provision upsets the bal- ance struck by the Immigration Reform and ontrol Act of 1986 (IRA) and must be preempted as an obstacle to the federal plan of regulation and control. When there was no comprehensive federal program regulating the employment of unauthorized aliens, this ourt found that a State had authority to pass its own laws on the subject. In 1971, for example, alifornia passed a law imposing civil penalties on the employment of aliens who were “not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.” 1971 al. Stats. ch. 14, The law was upheld against a preemption challenge in De De anas recognized that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” at 356. At that point, however, the Federal Government had expressed no more than “a peripheral concern with [the] employment of illegal entrants.” 60; see 563 U. S., at (slip op., ). urrent federal law is substantially different from the regime that prevailed when De anas was decided. on gress enacted IRA as a comprehensive framework for ite as: |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | gress enacted IRA as a comprehensive framework for ite as: 5 U. S. (2012) 13 Opinion of the ourt “combating the employment of illegal ” Hoffman Plastic ompounds, The law makes it illegal for employers to know ingly hire, recruit, refer, or continue to employ unauthorized workers. See 8 U.S. (a)(2). It also requires every employer to verify the employment authori zation status of prospective employees. See (1)(B), (b); 8 FR (2012). These requirements are enforced through criminal penalties and an escalat ing series of civil penalties tied to the number of times an employer has violated the provisions. See 8 U.S. (f); 8 FR §274a. This comprehensive framework does not impose federal criminal sanctions on the employee side (i.e., penalties on aliens who seek or engage in unauthorized work). Under federal law some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employ ment are not eligible to have their status adjusted to that of a lawful permanent resident. See 8 U.S. (c)(8). Aliens also may be removed from the country for having engaged in unauthorized work. See (e). In addition to specify ing these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means. See 18 U.S. ongress has made clear, however, that any information employees submit to indicate their work status “may not be used” for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct. See 8 U.S. (d)(2)(F)–(G). The legislative background of IRA underscores the fact that ongress made a deliberate choice not to impose crim inal penalties on aliens who seek, or engage in, unauthor ized employment. A commission established by ongress to study immigration policy and to make recommen dations concluded these penalties would be “unnecessary 14 ARIZONA v. UNITED STATES Opinion of the ourt and unworkable.” U. S. Immigration Policy and the Na tional Interest: The Final Report and Recommendations of the Select ommission on Immigration and Refugee Policy with Supplemental Views by ommissioners –66 (1981); see Pub. L. 95–412, Proposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting IRA. See Brief for Service Employees International Union et al. as Amici uriae 9–12. But ongress rejected them. See, e.g., 119 ong. Rec. 14184 (1973) (statement of Rep. Dennis). In the end, IRA’s framework reflects a considered judg ment that making criminals out of aliens engaged in unauthorized work—aliens who already face the possibil ity of employer exploitation because of their removable status—would be inconsistent with federal policy and |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | of their removable status—would be inconsistent with federal policy and ob- jectives. See, e.g., Hearings before the Subcommittee No. 1 of the House ommittee on the Judiciary, 92d ong., 1st Sess., pt. 3, pp. 919–920 (statement of Rep. Rodino, the eventual sponsor of IRA in the House of Representatives). IRA’s express preemption provision, which in most instances bars States from imposing penalties on employ ers of unauthorized aliens, is silent about whether addi tional penalties may be imposed against the employees themselves. See 8 U.S. at – (slip op., at 1–2). But the existence of an “ex press pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles” or impose a “special burden” that would make it more difficult to establish the preemption of laws falling outside the clause. – 872 ; see The ordinary principles of preemption include the well settled proposition that a state law is preempted where it “stands as an obstacle to the accomplishment and exe ite as: 5 U. S. (2012) 15 Opinion of the ourt cution of the full purposes and objectives of ongress.” Under of S. B. 70, Arizona law would interfere with the careful balance struck by ongress with respect to unauthorized employment of Although attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of en forcement. The ourt has recognized that a “[c]onflict in technique can be fully as disruptive to the system on gress enacted as conflict in overt policy.” Motor oach The correct instruction to draw from the text, structure, and history of IRA is that ongress decided it would be inap propriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system ongress chose. See Puerto Rico of on- sumer (1988) (“Where a comprehensive federal scheme intention ally leaves a portion of the regulated field without con trols, then the pre-emptive inference can be drawn—not from federal inaction alone, but from inaction joined with action”). Section 5() is preempted by federal law. Section 6 Section 6 of S. B. 70 provides that a state officer, “without a warrant, may arrest a person if the officer has probable cause to believe [the person] has committed any public offense that makes [him] removable from the United States.” –3883(A)(5) The United States argues that arrests authorized by this statute would be an obstacle to the removal system ongress created. As a general rule, it is not a crime |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | created. As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez- 16 468 U.S. 32, 38 If the police stop someone based on nothing more than possible removabil ity, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Ap pear. See 8 U.S. (a) (2012). The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U.S. If an alien fails to appear, an in absentia order may direct removal. The federal statutory structure instructs when it is ap propriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States.” 8 U.S. see Memo randum from John Morton, Director, IE, to All Field Office Directors et al., Exercising Prosecutorial Discretion onsistent with the ivil Immigration Enforcement Prior ities of the Agency for the Apprehension, Detention, and Removal of Aliens (hereinafter IE Memorandum) (describing factors informing this and re lated decisions). And if an alien is ordered removed after a hearing, the Attorney General will issue a warrant. See (a)(1). In both instances, the warrants are executed by federal officers who have received training in the enforcement of immigration law. See5(e)(3). If no federal warrant has been issued, those officers have more limited authority. See 8 U.S. They may arrest an alien for being “in the United States in violation of any [immigration] law or regula- tion,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible remova ite as: 5 U. S. (2012) 17 Opinion of the ourt bility than ongress has given to trained federal immi- gration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigra tion policy. |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | allow the State to achieve its own immigra tion policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. This is not the system ongress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A princi pal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See see also §13(a)() (authority may be extended in the event of an “imminent mass influx of aliens off the coast of the United States”); (authority to arrest in specific circum stance after consultation with the Federal Government); (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements are subject to the Attorney General’s direction and super vision. There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable. See Padilla v. Kentucky, 9 U.S. – (20) (ALITO, J., concurring in judgment) (slip op., –7). As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigra tion officer. See cf. 8 FR §§.5(c) (ar- rest power contingent on training),1(g) (defining the 18 ARIZONA v. UNITED STATES Opinion of the ourt training). By authorizing state officers to decide whether an alien should be detained for being removable, violates the principle that the removal process is entrusted to the discretion of the Federal Government. See, e.g., Reno v. American-Arab Anti-Discrimination omm., 483–484 ; see also Brief for Former INS ommis sioners 8–13. A decision on removability requires a de termination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice. See (“Removal deci sions, including the selection of a removed alien’s destina tion, may implicate [the Nation’s] relations with foreign powers and require consideration of changing political and economic circumstances” (internal quotation marks omit ted)); see also (“Policies pertaining to the entry of aliens and their right to remain here are entrusted exclusively to ongress”); (“The author ity to control immigration—to admit or exclude aliens—is vested solely in the Federal Government”). In defense of Arizona notes a federal statute permit ting state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U.S. ()(B). There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government. The Depart ment of Homeland Security gives examples of what would constitute cooperation under federal law. These include situations where States participate in a joint task force ite as: 5 U. S. (2012) 19 Opinion of the ourt with federal officers, provide operational support in exe cuting a warrant, or allow federal immigration officials to gain access to detainees held in state facilities. See of Homeland Security, Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters 13–14 online at http:// www.dhs.gov/files/resources/immigration.shtm (all Inter net materials as visited June 21, 2012, and available in lerk of ourt’s case file). State officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody. See But the unilateral state action to detain authorized by goes far beyond these measures, defeating any need for real cooperation. ongress has put in place a system in which state offic ers may not make warrantless arrests of aliens based on possible removability except in specific, limited circum stances. By nonetheless authorizing state and local offi- cers to engage in these enforcement activities as a general matter, creates an obstacle to the full purposes and objectives of ongress. See Sec tion 6 is preempted by federal law. D Section 2(B) Section 2(B) of S. B. 70 requires state officers to make a “reasonable attempt to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. (B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status de termined before the person is released.” The accepted way to perform these status checks is to contact IE, which maintains a database of immigration records. 20 ARIZONA v. UNITED STATES Opinion of the ourt Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers “may not consider |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | driver’s license or similar identification. Second, officers “may not consider race, color or national origin except to the extent permitted by the United States [and] Ari zona onstitution[s].” Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” (L) (West 2012). The United States and its amici contend that, even with these limits, the State’s verification requirements pose an obstacle to the framework ongress put in place. The first concern is the mandatory nature of the status checks. The second is the possibility of prolonged detention while the checks are being performed. 1 onsultation between federal and state officials is an important feature of the immigration system. ongress has made clear that no formal agreement or special train ing needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” 8 U.S. ()(A). And ongress has obligated IE to respond to any request made by state officials for verification of a person’s citizenship or im- migration status. See see also (requiring a system for determining whether individuals arrested for aggravated felonies are aliens). IE’s Law Enforcement Support enter operates “24 hours a day, seven days a week, 3 days a year” and provides, among other things, “immigration status, identity information and real-time assistance to local, state and federal law ite as: 5 U. S. (2012) 21 Opinion of the ourt enforcement agencies.” IE, Fact Sheet: Law Enforce ment Support enter (May 29, 2012), online at http:// www.ice.gov/news/library/factsheets/lesc.htm. LES re sponded to more than one million requests for information in 2009 alone. App. 93. The United States argues that making status verifica tion mandatory interferes with the federal immigration scheme. It is true that does not allow state officers to consider federal enforcement priorities in deciding whether to contact IE about someone they have de tained. See Brief for United States 47–50. In other words, the officers must make an inquiry even in cases where it seems unlikely that the Attorney General would have the alien removed. This might be the case, for example, when an alien is an elderly veteran with significant and longstanding ties to the community. See IE Memo randum 4–5 (mentioning these factors as relevant). ongress has done nothing to suggest it is inappropriate to communicate with IE in these situations, however. Indeed, it has encouraged the sharing of information |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U.S. ()(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [IE] information regarding the immigration status, lawful or unlawful, of an alien in the United States.” The federal scheme thus leaves room for a policy requiring state officials to contact IE as a routine matter. f. 563 U. S., at – (slip op., 3–24) (reject ing argument that federal law preempted Arizona’s re quirement that employers determine whether employees were eligible to work through the federal E-Verify system where the Federal Government had encouraged its use). 22 ARIZONA v. UNITED STATES Opinion of the ourt 2 Some who support the challenge to argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici uriae 37, n. 49. Detaining individuals solely to verify their immi gration status would raise constitutional concerns. See, e.g., ; Illinois v. aballes, (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. f. Part IV–, (concluding that Ari zona may not authorize warrantless arrests on the basis of removability). The program put in place by ongress does not allow state or local officers to adopt this enforcement mechanism. But could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of instructs officers to make a “reasonable” attempt to verify his immigration status with IE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. See Reply Brief for Petitioners 12, n. 4 (“[Section 2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | the stop or detention if that is not reasonable or practica ble”); cf. 1 (finding no Fourth Amendment violation where questioning about ite as: 5 U. S. (2012) 23 Opinion of the ourt immigration status did not prolong a stop). To take another example, a person might be held pend ing release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the cir cumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention. However the law is interpreted, if only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objec tives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigra tion crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re, 332 U.S. 581, (authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); –476 (A9 1983) (concluding that Arizona officers have authority to enforce the criminal provisions of federal immigration law), overruled on other grounds in Hodgers- 199 F.3d 37 The nature and timing of this case counsel caution in evaluating the validity of The Federal Government 24 ARIZONA v. UNITED STATES Opinion of the ourt has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume will be construed in a way that creates |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | to assume will be construed in a way that creates a conflict with federal law. f. (“So far as statutes fairly may be construed in such a way as to avoid doubtful con stitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts” (citation omitted)). As a result, the United States cannot prevail in its current challenge. See Huron Portland ement o. v. Detroit, 446 (1960) (“To hold otherwise would be to ignore the teaching of this ourt’s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists”). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. V Immigration policy shapes the destiny of the Nation. On May 24, 2012, at one of this Nation’s most distin guished museums of history, a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem. There they took the oath to become American citizens. The Smithsonian, News Release, Smithsonian itizenship eremony Welcomes a Dozen New Americans (May 24, 2012), online at http://newsdesk.si.edu/releases. These naturalization cere- monies bring together men and women of different ori gins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the onstitution, and to bear arms on behalf of the country when required by law. 8 FR 37.1(a) (2012). ite as: 5 U. S. (2012) 25 Opinion of the ourt The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here. The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thought ful, rational civic discourse. Arizona may have under standable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. * * * The United States has established that 5(), and 6 of S. B. 70 are preempted. It was improper, however, to enjoin before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives. The judgment of the ourt of Appeals for the Ninth ircuit is affirmed in part |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | of Appeals for the Ninth ircuit is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTIE KAGAN took no part in the consideration or decision of this case. ite as: 5 U. S. (2012) 1 Opinion of SALIA, J. SUPREME OURT OF THE UNITED STATES No. 11–182 ARIZONA, ET AL., PETITIONERS v. UNITED STATES ON WRIT OF ERTIORARI TO THE UNITED STATES OURT OF APPEALS FOR THE NINTH IRUIT [June 25, 2012] JUSTIE SALIA, concurring in part and dissenting in part. The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata River & herry reek Ditch o., 4 Today’s opinion, ap proving virtually all of the Ninth ircuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would con- sider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the onstitution itself nor even any law passed by ongress supports this result. I dissent. I As a sovereign, Arizona has the inherent power to ex clude persons from its territory, subject only to those limitations expressed in the onstitution or constitution ally imposed by ongress. That power to exclude has long been recognized as inherent in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations stated: “The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular pur- poses, according as he may think it advantageous to 2 ARIZONA v. UNITED STATES Opinion of SALIA, J. the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares violate it, incurs the penalty decreed to render it effectual.” The Law of Nations, bk. II, ch. VII, p. 309 See also I R. Phillimore, ommentaries upon Internation al Law, pt. III, ch. X, p. 233 (1854) (“It is a received maxim of International Law that, the Government of a State may prohibit the entrance of strangers into the country”).1 There is no doubt that “before the adoption of the consti tution of the United States” each State had the author- ity to “prevent [itself] from being burdened by an influx of persons.” Mayor of New 11 Pet. 2, 132– 133 (1837). And the onstitution did not strip the States of that authority. To the contrary, |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | not strip the States of that authority. To the contrary, two of the onstitu tion’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. pp. 269–271 (. Rossiter ed. 1961) (J. Madison). The Articles of onfeder —————— 1 Many of the 17th-, 18th-, and 19th-century commentators main tained that states should exclude foreigners only for good reason. Pufendorf, for example, maintained that states are generally expected to grant “permanent settlement to strangers who have been driven from their former home,” though acknowledging that, when faced with the prospect of mass immigration, “every state may decide after its own custom what privilege should be granted in such a situation.” 2 Of the Law of Nature and Nations, bk. III, ch. III, §, p. (. Oldfather & W. Oldfather eds. 1934). See generally leveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth entury Origins of Plenary Power over Foreign Affairs, 83–87 But the authority to exclude was universally accepted as inherent in sovereignty, whatever prudential limitations there might be on its exercise. ite as: 5 U. S. (2012) 3 Opinion of SALIA, J. ation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from jus tice excepted, shall be entitled to all privileges and im munities of free citizens in the several States.” Articles of onfederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the onstitution’s Privileges and Immunities lause provided that “[t]he itizens of each State shall be entitled to all Privileges and Immunities of itizens in the several States.” Art. IV, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” The Federalist No. 71; see Art. I, cl. 4. In other words, the naturalization power was given to on gress not to abrogate States’ power to exclude those they did not want, but to vindicate it. Two other provisions of the onstitution are an ac knowledgment of the States’ sovereign interest in protect ing their borders. Article I provides that “[n]o State shall, without the onsent of the ongress, |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | that “[n]o State shall, without the onsent of the ongress, lay any Imposts or Duties on Imports or Exports, except what may be abso lutely necessary for executing it’s inspection Laws.” Art. I, §, cl. 2 (emphasis added). This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods. A later portion of the same section provides that “[n]o State shall, without the onsent of ongress, engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §, cl. 3 (emphasis added). This limits the States’ sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory. Notwithstanding “[t]he myth of an era of unrestricted 4 ARIZONA v. UNITED STATES Opinion of SALIA, J. immigration” in the first 0 years of the Republic, the States enacted numerous laws restricting the immigra- tion of certain classes of aliens, including convicted crimi nals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost entury of American Immigration (1776–1875), 93 olum. L. Rev. 1833, 1835, 1841–1880 (1993). State laws not only pro vided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.2 In fact, the controversy surrounding the Alien and Sedition Acts involved a debate over whether, under the onstitution, the States had exclusive authority to enact such immigration laws. riticism of the Sedition Act has become a prominent feature of our First Amendment jurisprudence, see, e.g., New York Times o. v. Sullivan, but one of the Alien Acts3 also aroused controversy at the time: “Be it enacted by the Senate and House of Representa tives of the United States of America in ongress as sembled, That it shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machina tions against the government thereof, to depart out of the territory of the United States” An Act con cerning Aliens, 570–571. —————— 2 E.g., Va. ode Tit. 54, ch. 198, 9 (1849) (“If a master of a vessel or other person, knowingly, import or bring into this state, from any place out of the United States, any person convicted of crime he shall be confined in jail for three months, and be fined one hundred dollars”). 3 |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | for three months, and be fined one hundred dollars”). 3 There were two Alien Acts, one of which dealt only with enemy An Act respecting Alien Enemies, ite as: 5 U. S. (2012) 5 Opinion of SALIA, J. The Kentucky and Virginia Resolutions, written in denun ciation of these Acts, insisted that the power to exclude unwanted aliens rested solely in the States. Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citi zens.” Kentucky Resolutions of 18, reprinted in J. Languages of Power: A Sourcebook of Early American onstitutional History 131 (1991). Madison’s Virginia Resolutions likewise contended that the Alien Act pur ported to give the President “a power nowhere delegated to the federal government.” Virginia Resolutions of 18, reprinted in Notably, moreover, the Federalist proponents of the Act defended it primarily on the ground that “[t]he removal of aliens is the usual preliminary of hostility” and could therefore be justified in exercise of the Federal Govern ment’s war powers. Massachussets Resolutions in Reply to Virginia, reprinted in In Mayor of New this ourt considered a New York statute that required the commander of any ship arriving in New York from abroad to disclose “the name, place of birth, and last legal settlement, age and occupation of all passengers with the intention of proceeding to the said city.” –131. After discussing the sovereign authority to regulate the en trance of foreigners described by De Vattel, the ourt said: “The power of New York to pass this law having undeniably existed at the formation of the constitu tion, the simply inquiry is, whether by that instru ment it was taken from the states, and granted to congress; for if it were not, it yet remains with them.” 6 ARIZONA v. UNITED STATES Opinion of SALIA, J. And the ourt held that it remains. II One would conclude from the foregoing that after the adoption of the onstitution there was some doubt about the power of the Federal Government to control immigra tion, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for immigration policy has shifted from the States to the Federal Government. on gress exercised its power “[t]o establish an uniform Rule of Naturalization,” Art. I, cl. 4, very early on, |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | Rule of Naturalization,” Art. I, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1 Stat. 3. But with the fleeting exception of the Alien Act, ongress did not enact any legislation regulating immi gration for the better part of a century. In 1862, ongress passed “An Act to prohibit the ‘oolie Trade’ by American itizens in American Vessels,” which prohibited “procur ing [hinese nationals] to be disposed of, or sold, or transferred, for any term of years or for any time what ever, as servants or apprentices, or to be held to service or labor.” Then, in 1875, ongress amended that act to bar admission to hinese, Japanese, and other Asian immigrants who had “entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes.” An act supplementary to the acts in relation to immigration, ch. 141, And in 1882, ongress enacted the first general immi gration statute. See An act to regulate Immigration, 22 Stat. 214. Of course, it hardly bears mention that Federal immigration law is now extensive. I accept that as a valid exercise of federal power—not because of the Naturalization lause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than ite as: 5 U. S. (2012) 7 Opinion of SALIA, J. for the States. As this ourt has said, it is an “ ‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’ ” Fong Yue ). That is why there was no need to set forth control of immigration as one of the enumer ated powers of ongress, although an acknowledgment of that power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, which provided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the ongress prior to the Year one thousand eight hundred and eight” In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the onstitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit. Possibility (1) need not be considered here: there is no federal law prohibiting the States’ sovereign power to ex- clude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the ourt’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition. We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: 8 ARIZONA v. UNITED STATES Opinion of SALIA, J. the power to exclude. Like elimination of the States’ other inherent sovereign power, immunity from suit, elimina- tion of the States’ sovereign power to exclude requires that “ongress unequivocally expres[s] its intent to abro gate,” Seminole Tribe of (1996) Implicit “field preemption” will not do. Nor can federal power over illegal immigration be deemed exclusive because of what the ourt’s opinion solicitously calls “foreign countries[ ’] concern[s] about the status, safety, and security of their nationals in the United States,” ante, The onstitution gives all those on our shores the protections of the Bill of Rights—but just as those rights are not expanded for foreign nationals be cause of their countries’ views (some countries, for exam ple, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sover eign powers. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy. Four years ago, for example, the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals be cause the international community, and even an opinion of the International ourt of Justice, disapproved them. See 2 U.S. 491 We rejected that request, as we should reject the Executive’s invocation of foreign-affairs considerations here. Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder. ite as: |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | the right to execute foreign nationals for murder. ite as: 5 U. S. (2012) 9 Opinion of SALIA, J. What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law— whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority. I proceed to consider the challenged provisions in detail. “For any lawful stop, detention or arrest made by a law enforcement official in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the per son is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status deter mined before the person is released.” S. B. 70, as amended, Ariz. Rev. Stat. Ann. (B) (West 2012). The Government has conceded that “even before Section 2 was enacted, state and local officers had state-law au thority to inquire of DHS [the Department of Homeland Security] about a suspect’s unlawful status and other- wise cooperate with federal immigration officers.” Brief for United States 47 (citing App. 62, 82); see also Brief for United States 48–49. That concession, in my view, ob- viates the need for further inquiry. The Government’s conflict-pre-emption claim calls on us “to determine whether, under the circumstances of this particular case, [the State’s] law stands as an obstacle to the accomplish ment and execution of the full purposes and objectives of ARIZONA v. UNITED STATES Opinion of SALIA, J. ongress.” v. Davidowitz, (emphasis added). It is impossible to make such a finding without a factual record concerning the manner in which Arizona is implementing these provisions—something the Government’s pre-enforcement challenge has pretermitted. “The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insuf- ficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” United And on its face, merely tells state officials that they are authorized to do something that they were, by the Government’s con cession, already authorized to do. The ourt therefore properly rejects the Government’s challenge, recognizing that, “[a]t this stage, without the |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | the Government’s challenge, recognizing that, “[a]t this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume will be construed in a way that creates a conflict with federal law.” Ante, at 23. Before reaching that conclusion, however, the ourt goes to great length to assuage fears that “state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status.” Ante, 2. Of course, any investigatory detention, in cluding one under may become an “unreasonable seizur[e],” U. S. onst., Amdt. IV, if it lasts too long. See But that has nothing to do with this case, in which the Gov ernment claims that is pre-empted by federal immi gration law, not that anyone’s Fourth Amendment rights have been violated. And I know of no reason why a protracted detention that does not violate the Fourth Amendment would contradict or conflict with any federal immigration law. ite as: 5 U. S. (2012) 11 Opinion of SALIA, J. “A peace officer, without a warrant, may arrest a per son if the officer has probable cause to believe [t]he person to be arrested has committed any public offense that makes the person removable from the United States.” S. B. 70, (A)(5), Ariz. Rev. Stat. Ann. This provision of S. B. 70 expands the statutory list of offenses for which an Arizona police officer may make an arrest without a warrant. See If an officer has probable cause to believe that an individual is “removable” by reason of a public offense, then a warrant is not re quired to make an arrest. The Government’s primary contention is that is pre-empted by federal immigration law because it allows state officials to make arrests “with out regard to federal priorities.” Brief for United States 53. The ourt’s opinion focuses on limits that ongress has placed on federal officials’ authority to arrest remov able aliens and the possibility that state officials will make arrests “to achieve [Arizona’s] own immigration policy” and “without any input from the Federal Government.” Ante, at 17. Of course on this pre-enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy (unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable). As Arizona points out, federal law expressly provides that state officers may “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” 8 U.S. ()(B); and |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | lawfully present in the United States,” 8 U.S. ()(B); and “cooperation” requires neither identical efforts nor prior federal approval. It is consistent with the Arizona statute, and with the “cooperat[ive]” system that ongress has created, for state officials to arrest a removable alien, 12 ARIZONA v. UNITED STATES Opinion of SALIA, J. contact federal immigration authorities, and follow their lead on what to do next. And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” ante, at 18. The State’s detention does not represent commence ment of the removal process unless the Federal Govern ment makes it so. But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The ourt says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona. The ourt quotes 8 U.S. which provides that, “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Section 1357(a)(2) also provides that a federal immigration official “shall have power without warrant to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any [federal immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” But statutory limitations upon the actions of federal officers in enforcing the United States’ power to protect its borders do not on their face apply to the actions of state officers in enforcing the State’s power to protect its borders. There is no more reason to read these provisions as implying that state officials are subject to similar limi ite as: 5 U. S. (2012) 13 Opinion of SALIA, J. tations than there is to read them as implying that only federal officials may arrest removable And in any event neither implication would |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | may arrest removable And in any event neither implication would constitute the sort of clear elimination of the States’ sovereign power that our cases demand. The ourt raises concerns about “unnecessary harass ment of some aliens whom federal officials determine should not be removed.” Ante, at 17. But we have no license to assume, without any support in the record, that Arizona officials would use their arrest authority under to harass anyone. And it makes no difference that federal officials might “determine [that some unlawfully present aliens] should not be removed,” They may well de termine not to remove from the United States aliens who have no right to be here; but unless and until these aliens have been given the right to remain, Arizona is entitled to arrest them and at least bring them to federal officials’ attention, which is all that necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.) The Government complains that state officials might not heed “federal priorities.” Indeed they might not, particu larly if those priorities include willful blindness or delib- erate inattention to the presence of removable aliens in Arizona. The State’s whole complaint—the reason this law was passed and this case has arisen—is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition. “In addition to any violation of 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 14 ARIZONA v. UNITED STATES Opinion of SALIA, J. [U. S.] or” S. B. 70, (A), as amended, Ariz. Rev. Stat. Ann. (A). It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinc tively federal interest, such as protection of the dignity of the national flag, see (1907), or protection of the Federal Government’s ability to recruit soldiers, (1920). “[T]he State is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.” 31 (inter nal quotation marks omitted). Much more is that so when, as here, the State is protecting its own interest, the |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | as here, the State is protecting its own interest, the integ rity of its borders. And we have said that explicitly with regard to illegal immigration: “Despite the exclusive fed eral control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.” U.S. 202, 228, n. 23 The ourt’s opinion relies upon v. Davidowitz, Ante, at 9–. But that case did not, as the ourt believes, establish a “field preemption” that implicitly eliminates the States’ sovereign power to exclude those whom federal law excludes. It held that the States are not permitted to establish “additional or auxiliary” registra tion requirements for –. But does not establish additional or auxiliary registration requirements. It merely makes a violation of state law the very same failure to register and failure to carry evidence of registration that are violations of federal law. does not prevent the State from relying on the federal ite as: 5 U. S. (2012) 15 Opinion of SALIA, J. registration system as “an available aid in the enforce ment of a number of statutes of the state applicable to aliens whose constitutional validity has not been ques tioned.” at 75–76 (Stone, J., dissenting). One such statute is Arizona’s law forbidding illegal aliens to collect unemployment benefits, –781(B) (West 2012). To enforce that and other laws that validly turn on alien status, Arizona has, in Justice Stone’s words, an interest in knowing “the number and whereabouts of aliens within the state” and in having “a means of their identification,” And it can punish the aliens’ failure to comply with the provisions of federal law that make that knowledge and identification possible. In some areas of uniquely federal concern—e.g., fraud in a federal administrative process ) or perjury in violation of a federally required oath (In re Loney, 134 U.S. (1890))—this ourt has held that a State has no legitimate interest in enforcing a federal scheme. But the federal alien registration system is certainly not of uniquely federal interest. States, private entities, and individuals rely on the federal registration system (including the E-Verify program) on a regular basis. Arizona’s legitimate in terest in protecting (among other things) its unemployment benefits system is an entirely adequate basis for making the violation of federal registration and carry require ments a violation of state law as well. The ourt points out, however, ante, at 11, that in some respects the state law exceeds the punishments prescribed |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | in some respects the state law exceeds the punishments prescribed by federal law: It rules out probation and pardon, which are available under federal law. The answer is that it makes no difference. Illegal immigrants who violate violate Arizona law. It is one thing to say that the Su premacy lause prevents Arizona law from excluding those whom federal law admits. It is quite something else to say that a violation of Arizona law cannot be punished 16 ARIZONA v. UNITED STATES Opinion of SALIA, J. more severely than a violation of federal law. Especially where (as here) the State is defending its own sovereign interests, there is no precedent for such a limitation. The sale of illegal drugs, for example, ordinarily violates state law as well as federal law, and no one thinks that the state penalties cannot exceed the federal. As I have dis cussed, moreover, “field preemption” cannot establish a prohibition of additional state penalties in the area of immigration. Finally, the Government also suggests that poses an obstacle to the administration of federal immigration law, see Brief for United States 31–33, but “there is no conflict in terms, and no possibility of such conflict, [if] the state statute makes federal law its own,” 336 U.S. 725, 735 (1949). It holds no fear for me, as it does for the ourt, that “[w]ere to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where fed- eral officials in charge of the comprehensive scheme de termine that prosecution would frustrate federal policies.” Ante, at 11. That seems to me entirely appropriate when the State uses the federal law (as it must) as the criterion for the exercise of its own power, and the implementation of its own policies of excluding those who do not belong there. What I do fear—and what Arizona and the States that support it fear—is that “federal policies” of nonen forcement will leave the States helpless before those evil effects of illegal immigration that the ourt’s opinion dutifully recites in its prologue (ante, at 6) but leaves unremedied in its disposition. “It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public ite as: 5 U. S. (2012) 17 Opinion of SALIA, J. place or perform work as an employee or independent contractor in this state.” S. B. 70, as amended, Ariz. Rev. Stat. Ann. Here, the ourt rightly starts with |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | Ariz. Rev. Stat. Ann. Here, the ourt rightly starts with De which involved a alifornia law providing that “ ‘[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.’ ” 52 (quoting alifor nia Labor ode Ann. This ourt concluded that the alifornia law was not pre-empted, as ongress had neither occupied the field of “regulation of employment of illegal aliens” nor expressed “the clear and manifest pur pose” of displacing such state regulation. 56–357 (internal quotation marks omitted). Thus, at the time De anas was decided, would have been indubitably lawful. The only relevant change is that ongress has since enacted its own restrictions on employers who hire illegal aliens, 8 U.S. in legislation that also includes some civil (but no criminal) penalties on illegal aliens who accept unlawful employment. The ourt concludes from this (reasonably enough) “that ongress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment,” ante, at 13. But that is not the same as a deliberate choice to prohibit the States from imposing criminal penalties. ongress’s intent with regard to exclusion of state law need not be guessed at, but is found in the law’s express pre-emption provision, which excludes “any State or local law impos- ing civil or criminal sanctions (other than through licens ing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens,” (emphasis added). ommon sense, reflected in the canon expressio unius est exclusio alterius, suggests 18 ARIZONA v. UNITED STATES Opinion of SALIA, J. that the specification of pre-emption for laws punishing “those who employ” implies the lack of pre-emption for other laws, including laws punishing “those who seek or accept employment.” The ourt has no credible response to this. It quotes our jurisprudence to the effect that an “express pre emption provisio[n] does not bar the ordinary working of conflict pre-emption principles.” Ante, at 14 (internal quotation marks omitted)). True enough— conflict preemption principles. It then goes on say that since “ongress decided it would be inappropriate to im pose criminal penalties on aliens who seek or engage in unauthorized employment,” “[i]t follows that a state law to the contrary is an obstacle to the regulatory system on gress chose.” Ante, at 15. For “ ‘[w]here a comprehensive federal scheme intentionally leaves a portion of the regu lated field without controls, then the pre-emptive inference can be drawn.’ ” (quoting Puerto Rico |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | the pre-emptive inference can be drawn.’ ” (quoting Puerto Rico of on sumer (1988)). All that is a classic description not of conflict pre-emption but of field pre-emption, which (concededly) does not occur beyond the terms of an express pre-emption provision. The ourt concludes that “would interfere with the careful balance struck by ongress,” ante, at 15, (an other field pre-emption notion, by the way) but that is easy to say and impossible to demonstrate. The ourt relies primarily on the fact that “[p]roposals to make unauthor ized work a criminal offense were debated and discussed during the long process of drafting [the Immigration Re form and ontrol Act of 1986 (IRA)],” “[b]ut ongress rejected them.” Ante, at 14. There is no more reason to believe that this rejection was expressive of a desire that there be no sanctions on employees, than expressive of a desire that such sanctions be left to the States. To tell the ite as: 5 U. S. (2012) 19 Opinion of SALIA, J. truth, it was most likely expressive of what inaction ordi narily expresses: nothing at all. It is a “naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional rejection of what the bill contained.” v. National Foreign Trade ouncil, 389 (SALIA, J., concurring in judgment) (internal quotation marks and alterations omitted). * * * The brief for the Government in this case asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.” Brief for United States 21. Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its re sources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. Despite ongress’s prescription that “the immigration laws of the United States should be enforced vigorously and uniformly,” IRA §, 0 Stat. 3384, Arizona asserts without contradiction and with supporting citations: “[I]n the last decade federal enforcement efforts have focused primarily on areas in alifornia and Texas, leaving Arizona’s border to suffer from comparative neglect. The result has been the funneling of an in creasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Na tion’s illegal border crossings occurred in Arizona.” Brief for Petitioners 2–3 (footnote omitted). Must Arizona’s ability to protect its borders yield to the reality that ongress has provided |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | its borders yield to the reality that ongress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding? 20 ARIZONA v. UNITED STATES Opinion of SALIA, J. But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immi- gration enforcement some 1.4 million illegal immigrants under the age of 30.4 If an individual unlawfully present in the United States “• came to the United States under the age of sixteen; “• has continuously resided in the United States for at least five years “• is currently in school, has graduated from high school, has obtained a general education develop ment certificate, or is an honorably discharged veteran “• has not been convicted of a [serious crime]; and “• is not above the age of thirty,”5 then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonen —————— 4 Preston & ushman, Obama to Permit Young Migrants to Remain in U. S., N. Y. Times, June 16, 2012, p. A1. 5 Memorandum from Janet Napolitano, Secretary of Homeland Secu rity, to David V. Aguilar, Acting ommissioner, U. S. ustoms and Border Protection; Alejandro Mayorkas, Director, U. S. itizenship and Immigration Services; and John Morton, Director, U. S. Immigra- tion and ustoms Enforcement, p. 1 (June 15, 2012), online at http://www.dhs.gov (all Internet materials as visited June 22, 2012, and available in lerk of ourt’s case file). 6 ite as: 5 U. S. (2012) 21 Opinion of SALIA, J. forcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of ongress’s failure to pass the Administra tion’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the ourt does, that Arizona contradicts federal law by enforc ing applications of the Immigration Act that the President declines to enforce boggles the mind. The ourt opinion’s looming specter of inutterable hor ror—“[i]f of the Arizona statute were |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | specter of inutterable hor ror—“[i]f of the Arizona statute were valid, every State could give itself independent authority to prosecute fed- eral registration violations,” ante, at —seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the onstitution itself contained the ourt’s holding? Today’s judgment surely fails that test. At the onstitutional onvention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.” 1 Records of the Federal onvention 19 (M. Farrand ed. 1911) (statement of Edmund Randolph). Through ratifica tion of the fundamental charter that the onvention pro duced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously —————— 7 Remarks by the President on Immigration (June 15, 2012), online at http://www.whitehouse.gov. 22 ARIZONA v. UNITED STATES Opinion of SALIA, J. guarded—as reflected in the innumerable proposals that never left Independence Hall. Now, imagine a provision— perhaps inserted right after Art. I, cl. 4, the Naturali zation lause—which included among the enumerated powers of ongress “To establish Limitations upon Immi gration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand onvention would have rushed to the exits. As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from en forcement, and will be able to compete openly with Ari zona citizens for employment. Arizona has moved to protect its sovereignty—not in |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | for employment. Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent. ite as: 5 U. S. (2012) 1 Opinion of THOMAS, J. SUPREME OURT OF THE UNITED STATES No. 11–182 ARIZONA, ET AL., PETITIONERS v. UNITED STATES ON WRIT OF ERTIORARI TO THE UNITED STATES OURT OF APPEALS FOR THE NINTH IRUIT [June 25, 2012] JUSTIE THOMAS, concurring in part and dissenting in part. I agree with JUSTIE SALIA that federal immigration law does not pre-empt any of the challenged provisions of S. B. 70. I reach that conclusion, however, for the sim- ple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisions of Arizona law at issue here. v. Levine, 5 U.S. 5, (THOMAS, J., concurring in judgment) (“Pre-emption analysis should not be a free- wheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict” (brackets; internal quotation marks omitted)). Section 2(B) of S. B. 70 provides that, when Arizona law enforcement officers reasonably suspect that a person they have lawfully stopped, detained, or arrested is unlaw- fully present, “a reasonable attempt shall be made, when practicable, to determine the immigration status of the person” pursuant to the verification procedure established by ongress in 8 U.S. Ariz. Rev. Stat. Ann. (B) (West 2012). Nothing in the text of that or any other federal statute prohibits Arizona from directing its officers to make immigration-related inquiries in these situations. To the contrary, federal law expressly states that “no State or local government entity may be prohib- 2 ARIZONA v. UNITED STATES Opinion of THOMAS, J. ited, or in any way restricted, from sending to or receiving from” federal officials “information regarding the immigra- tion status” of an alien. 8 U.S. And, federal law imposes an affirmative obligation on federal officials to respond to a State’s immigration-related inquiries. Section 6 of S. B. 70 authorizes Arizona law enforce- ment officers to make warrantless arrests when there is probable cause to believe that an arrestee has committed a public offense that renders him removable under federal immigration law. States, as sovereigns, have inherent authority to conduct arrests for |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | States, as sovereigns, have inherent authority to conduct arrests for violations of federal law, unless and until ongress removes that authority. See United States v. Di Re, (holding that state law determines the validity of a warrantless arrest for a violation of federal law “in the absence of an applicable federal statute”). Here, no federal statute purports to withdraw that authority. As JUSTIE SALIA notes, ante, at 12 (opinion concurring in part and dissent- ing in part), federal law does limit the authority of federal officials to arrest removable aliens, but those statutes do not apply to state officers. And, federal law expressly recognizes that state officers may “cooperate with the Attorney General” in the “apprehension” and “detention” of “aliens not lawfully present in the United States.” ()(B). Nothing in that statute indicates that such cooperation requires a prior “request, approval, or other instruction from the Federal Government.” Ante, at 18 (majority opinion). Section 3 of S. B. 70 makes it a crime under Arizona law for an unlawfully present alien to willfully fail to complete or carry an alien registration document in viola- tion of 8 U.S. and Section 3 simply incorporates federal registration standards. Unlike the ourt, I would not hold that ongress pre-empted the field of enforcing those standards. “[O]ur recent cases have ite as: 5 U. S. (2012) 3 Opinion of THOMAS, J. frequently rejected field pre-emption in the absence of statutory language expressly requiring it.” amps New- found/Owatonna, 617 (1997) (THOMAS, J., dissenting); see, e.g., New York State of Social (1973). Here, nothing in the text of the relevant federal statutes indicates that ongress intended enforcement of its registration requirements to be exclusively the prov- ince of the Federal Government. That ongress created a “full set of standards governing alien registration,” ante, at (majority opinion), merely indicates that it intended the scheme to be capable of working on its own, not that it wanted to preclude the States from enforcing the federal standards. v. Davidowitz, is not to the contrary. As JUSTIE SALIA explains, ante, at 14, at most holds that federal law pre-empts the States from creating additional registration requirements. But here, Arizona is merely seeking to enforce the very regis- tration requirements that ongress created. Section 5() of S. B. 70 prohibits unlawfully present aliens from knowingly applying for, soliciting, or perform- ing work in Arizona. Section 5() operates only on indi- viduals whom ongress has already declared ineligible to work in the United States. Nothing in the text of the federal immigration laws prohibits States from imposing their own criminal penalties on |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | laws prohibits States from imposing their own criminal penalties on such individuals. Fed- eral law expressly pre-empts States from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized ” 8 U.S. (emphasis added). But it leaves States free to impose criminal sanctions on the employees themselves. Despite the lack of any conflict between the ordinary meaning of the Arizona law and that of the federal laws at issue here, the ourt holds that various provisions of the Arizona law are pre-empted because they “stan[d] as an 4 ARIZONA v. UNITED STATES Opinion of THOMAS, J. obstacle to the accomplishment and execution of the full purposes and objectives of ongress.” at I have explained that the “purposes and objectives” theory of implied pre-emption is inconsistent with the onstitu- tion because it invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text. See 5 U. S., (opin- ion concurring in judgment); see also Williamson v. Mazda Motor of America, Inc., 562 U.S. – (opin- ion concurring in judgment) (slip op., –3); Haywood v. Drown, 6 U.S. 729, 7 Under the Supremacy lause, pre-emptive effect is to be given to congressionally enacted laws, not to judicially divined legislative purposes. See (THOMAS, J., concurring in judgment). Thus, even assum- ing the existence of some tension between Arizona’s law and the supposed “purposes and objectives” of ongress, I would not hold that any of the provisions of the Arizona law at issue here are pre-empted on that basis. ite as: 5 U. S. (2012) 1 Opinion of ALITO, J. SUPREME OURT OF THE UNITED STATES No. 11–182 ARIZONA, ET AL., PETITIONERS v. UNITED STATES ON WRIT OF ERTIORARI TO THE UNITED STATES OURT OF APPEALS FOR THE NINTH IRUIT [June 25, 2012] JUSTIE ALITO, concurring in part and dissenting in part. This case concerns four provisions of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act, S. B. 70. Section 2(B) requires Arizona law enforcement officers to make a “reasonable attempt,” “when practica- ble,” to ascertain the immigration status of any person whom an officer lawfully stops, detains, or arrests “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. (B) (West 2012). Section 3 provides that an alien who willfully fails “to complete or carry an alien registration document” in violation of 8 U.S. or is guilty of a misdemeanor. Ariz. Rev. Stat. Ann. (A) Section 5() makes it |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | misdemeanor. Ariz. Rev. Stat. Ann. (A) Section 5() makes it a misdemeanor for an unauthorized alien who is unlawfully present in the United States “to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” Ariz. Rev. Stat. Ann. And authorizes Arizona law enforcement officers to arrest without a warrant any person who an officer has probable cause to believe “has committed any public offense that makes the person re- movable from the United States.” Ariz. Rev. Stat. Ann. I agree with the ourt that is not pre-empted. 2 ARIZONA v. UNITED STATES Opinion of ALITO, J. That provision does not authorize or require Arizona law enforcement officers to do anything they are not already allowed to do under existing federal law. The United States’ argument that is pre-empted, not by any federal statute or regulation, but simply by the Executive’s current enforcement policy is an astounding assertion of federal executive power that the ourt rightly rejects. I also agree with the ourt that is pre-empted by virtue of our decision in v. Davidowitz, 312 U.S. 52 Our conclusion in that case that ongress had enacted an “all-embracing system” of alien registration and that States cannot “enforce additional or auxiliary regulations,” at 66–, 74, forecloses Arizona’s attempt here to impose additional, state-law penalties for viola- tions of the federal registration scheme. While I agree with the ourt on and I part ways on and The ourt’s holding on is inconsistent with De which held that employment regulation, even of aliens unlawfully present in the country, is an area of traditional state concern. Because state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless ongress’ intent to do so is clear and manifest. I do not believe ongress has spoken with the requisite clarity to justify invalidation of Nor do I believe that is invalid. Like adds virtually nothing to the authority that Arizona law enforcement officers already exercise. And whatever little authority they have gained is consistent with federal law. Section 2(B) A Although of the Arizona law has occasioned much controversy, it adds nothing to the authority that Arizona law enforcement officers, like officers in all other States, already possess under federal law. For that reason, I ite as: 5 U. S. (2012) 3 Opinion of ALITO, J. agree with the ourt that is not pre-empted. Section 2(B) quite clearly does not expand the authority of Arizona officers to make stops or arrests. It is triggered only when a |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | make stops or arrests. It is triggered only when a “lawful stop, detention or arrest [is] made in the enforcement of any other [state or local] law or ordinance.” Ariz. Rev. Stat. Ann. (B) (emphasis added). Section 2(B) thus comes into play only when an officer has reasonable suspicion or probable cause to believe that a person has committed a nonimmigration offense. Arizona officers plainly possessed this authority before took effect. Section 2(B) also does not expand the authority of Ari- zona officers to inquire about the immigration status of persons who are lawfully detained. When a person is stopped or arrested and “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States,” instructs Arizona officers to make a “reasonable attempt,” “when practicable,” to ascertain that person’s immigration status. Ariz. Rev. Stat. Ann. 51(B). Even before the Arizona Legislature enacted federal law permitted state and local officers to make such inquiries. In 8 U.S. ()(A), on- gress has made clear that state and local governments need not enter into formal agreements with the Federal Government in order “to communicate with the [Federal Government] regarding the immigration status of any individual.” In addition, ongress has mandated that neither the Federal Government nor any state or local government may “prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [the Federal Government] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” see also (providing that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [the Federal Government] information regarding the 4 ARIZONA v. UNITED STATES Opinion of ALITO, J. immigration status, lawful or unlawful, of an alien in the United States”). And while these provisions preserve the authority of state and local officers to seek immigration- status information from the Federal Government, another federal statute, requires that the Federal Gov- ernment respond to any such inquiries “by providing the requested verification or status information.” It comes as no surprise, therefore, that many States and localities permit their law enforcement officers to make the kinds of inquiries that prescribes. See App. 294–298 (report- ing that officers in 59 surveyed state and local jurisdic- tions “generally” ask arrestees about their immigration status while 34 do not and that officers in 78 jurisdictions “generally” inform Immigration and ustoms Enforcement (IE) when they believe an arrestee to be an undocumented alien while only 17 do not). ongress has invited state and local governments to make immigration-related in- |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | has invited state and local governments to make immigration-related in- quiries and has even obligated the Federal Government to respond. Through Arizona has taken ongress up on that invitation. The United States does not deny that officers may, at their own discretion, inquire about the immigration status of persons whom they lawfully detain. Instead, the United States argues that is pre-empted because it impedes federal-state cooperation by mandating that officers verify the immigration status of every detained person if there is reason to believe that the person is unlawfully present in the country. The United States claims that ’s man- date runs contrary to federal law in that it “precludes officers from taking [the Federal Government’s] priorities and discretion into account.” Brief for United States 50. “[B]y interposing a mandatory state law between state and local officers and their federal counterparts,” writes the United States, “stands as an obstacle to the ac- complishment of the federal requirement of cooperation and the full effectuation of the enforcement judgment and ite as: 5 U. S. (2012) 5 Opinion of ALITO, J. discretion ongress has vested in the Executive Branch.” The underlying premise of the United States’ argument seems to be that state and local officers, when left to their own devices, generally take federal enforcement priorities into account. But there is no reason to think that this premise is true. And even if it were, it would not follow that ’s blanket mandate is at odds with federal law. Nothing in the relevant federal statutes requires state and local officers to consider the Federal Government’s priori- ties before requesting verification of a person’s immigra- tion status. Neither 8 U.S. () nor conditions the right of state and local officers to communi- cate with the Federal Government on their first taking account of its priorities. Nor does condition the Federal Government’s obligation to answer requests for in- formation on the sensitivity of state and local officers to its enforcement discretion. In fact, dictates that the Federal Government “shall respond” to any inquiry seeking verification of immigration status, and that com- mand applies whether or not the requesting officer has bothered to consider federal priorities. Because no federal statute requires such consideration, does not conflict with federal law. In any event, it is hard to see how state and local offi- cers could proceed in conformity with the Federal Govern- ment’s enforcement priorities without making an inquiry into a suspected alien’s immigration status. For example, one of the Federal Government’s highest priorities is the apprehension and removal of aliens who have failed to comply |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 8. How can an officer identify those persons without first in- quiring about their status? At bottom, the discretion that ultimately matters is not whether to verify a person’s immigration status but whether to act once the person’s status is known. For that reason, ’s verification 6 ARIZONA v. UNITED STATES Opinion of ALITO, J. requirement is not contrary to federal law because the Federal Government retains the discretion that matters most––that is, the discretion to enforce the law in par- ticular cases. If an Arizona officer contacts the Federal Government to verify a person’s immigration status and federal records reveal that the person is in the coun- try unlawfully, the Federal Government decides, presum- ably based on its enforcement priorities, whether to have the person released or transferred to federal custody. Enforcement discretion thus lies with the Federal Gov- ernment, not with Arizona. Nothing in suggests otherwise. The United States’ attack on is quite remarkable. The United States suggests that a state law may be pre- empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy. I am aware of no decision of this ourt recognizing that mere policy can have pre-emptive force. f. Barclays Bank PL v. Franchise Tax Bd. of al., (1994) (holding that “Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional” an “otherwise valid, congression- ally condoned” state law). If were pre-empted at the present time because it is out of sync with the Federal Government’s current priorities, would it be unpre-empted at some time in the future if the agency’s priorities changed? Like most law enforcement agencies, IE does not set out inflexible rules for its officers to follow. To the con- trary, it provides a list of factors to guide its officers’ enforcement discretion on a case-by-case basis. See Memo- randum from John Morton, Director, IE, to All Field Office Directors et al., p. 4 (“This list is not exhaustive and no one factor is determinative. IE offi- ite as: 5 U. S. (2012) 7 Opinion of ALITO, J. cers, agents, and attorneys should always consider prose- cutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to IE’s enforcement priorities”). Among those factors is “the agency’s civil immigration enforcement |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | priorities”). Among those factors is “the agency’s civil immigration enforcement priorities,” ib which change from admin- istration to administration. If accepted, the United States’ pre-emption argument would give the Executive unprece- dented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations. This argument, to say the least, is fundamen- tally at odds with our federal system. B It has been suggested that will cause some per- sons who are lawfully stopped to be detained in violation of their constitutional rights while a prolonged investiga- tion of their immigration status is undertaken. But noth- ing on the face of the law suggests that it will be enforced in a way that violates the Fourth Amendment or any other provision of the onstitution. The law instructs officers to make a “reasonable attempt” to investigate immigration status, and this language is best understood as incorporat- ing the Fourth Amendment’s standard of reasonableness. Indeed, the Arizona Legislature has directed that “shall be implemented in a manner consistent with federal laws protecting the civil rights of all persons and re- specting the privileges and immunities of United States citizens.” Ariz. Rev. Stat. Ann. (L). In the situations that seem most likely to occur, en- forcement of will present familiar Fourth Amend- ment questions. To take a common situation, suppose that a car is stopped for speeding, a nonimmigration offense. (Recall that comes into play only where a stop or arrest is made for a nonimmigration offense.) Suppose 8 ARIZONA v. UNITED STATES Opinion of ALITO, J. also that the officer who makes the stop subsequently acquires reasonable suspicion to believe that the driver entered the country illegally, which is a federal crime. See 8 U.S. It is well established that state and local officers gener- ally have authority to make stops and arrests for viola- tions of federal criminal laws. See, e.g., ; United States v. Di Re, I see no reason why this princi- ple should not apply to immigration crimes as well. Lower courts have so held. See, e.g., (A1 20) (upholding the lawfulness of a detention because the officer had an objectively reason- able belief that the arrestees “had committed immigra- tion violations”); United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296 (noting that “state law- enforcement officers have the general authority to investi- gate and make arrests for violations of federal immigra- tion laws”); (A9 1983), overruled on other grounds, 199 F.3d 37 (holding that “federal law does not preclude local enforcement of the |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | that “federal law does not preclude local enforcement of the criminal provisions” of federal immigration law). And the United States, consistent with the position long taken by the Office of Legal ounsel (OL) in the Department of Justice, does not contend otherwise. See Brief for United States n. 33; see also Memorandum from OL to the Attorney General App. 268–273; Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal ounsel 26 (1996). More importantly, no federal statute casts doubt on this authority. To be sure, there are a handful of statutes that purport to authorize state and local officers to make immi- gration-related arrests in certain situations. See, e.g., 8 U.S. §13(a)() (providing for the extension of “any” immigration enforcement authority to state and local ite as: 5 U. S. (2012) 9 Opinion of ALITO, J. officers in the event of an “actual or imminent mass in- flux of aliens arriving off the coast”); (a) (provid- ing authority to arrest criminal aliens who had illegally reentered the country but only after consultation with the Federal Government); (providing authority to make arrests for transporting and harboring certain aliens). But a grant of federal arrest authority in some cases does not manifest a clear congressional intent to displace the States’ police powers in all other cases. With- out more, such an inference is too weak to overcome our presumption against pre-emption where traditional state police powers are at stake. Accordingly, in our hypothet- ical case, the Arizona officer may arrest the driver for violating if the officer has probable cause. And if the officer has reasonable suspicion, the officer may detain the driver, to the extent permitted by the Fourth Amend- ment, while the question of illegal entry is investigated. We have held that a detention based on reasonable suspicion that the detainee committed a particular crime “can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. aballes, But if during the course of a stop an officer acquires suspicion that a de- tainee committed a different crime, the detention may be extended for a reasonable time to verify or dispel that suspicion. f. 1 (holding that “no additional Fourth Amendment justifica- tion” was required because any questioning concerning immigration status did not prolong the detention). In our hypothetical case, therefore, if the officer, after initially stopping the car for speeding, has a reasonable suspicion that the driver entered the country illegally, the officer may investigate for evidence of illegal entry. But the length and nature of this investigation |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | illegal entry. But the length and nature of this investigation must remain with- in the limits set out in our Fourth Amendment cases. An investigative stop, if prolonged, can become an arrest and ARIZONA v. UNITED STATES Opinion of ALITO, J. thus require probable cause. See aballes, 07. Similarly, if a person is moved from the site of the stop, probable cause will likely be required. See (holding that the line be- tween detention and arrest is crossed “when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes”). If properly implemented, should not lead to fed- eral constitutional violations, but there is no denying that enforcement of will multiply the occasions on which sensitive Fourth Amendment issues will crop up. These civil-liberty concerns, I take it, are at the heart of most objections to lose and difficult questions will in- evitably arise as to whether an officer had reasonable suspicion to believe that a person who is stopped for some other reason entered the country illegally, and there is a risk that citizens, lawful permanent residents, and others who are lawfully present in the country will be detained. To mitigate this risk, Arizona could issue guidance to officers detailing the circumstances that typically give rise to reasonable suspicion of unlawful presence. And in the spirit of the federal-state cooperation that the United States champions, the Federal Government could share its own guidelines. Arizona could also provide officers with a nonexclusive list containing forms of identification suffi- cient under to dispel any suspicion of unlawful presence. If Arizona accepts licenses from most States as proof of legal status, the problem of roadside detentions will be greatly mitigated.1 —————— 1 When the Real ID Act takes effect, the Federal Government will no longer accept state forms of identification that fail to meet certain federal requirements. One requirement is that any identification be issued only on proof that the applicant is lawfully present in the United States. 13. I ite as: 5 U. S. (2012) 11 Opinion of ALITO, J. Section 3 I agree that is pre-empted because, like the ourt, I read the opinion in to require that result. Although there is some ambiguity in the ourt largely spoke in the language of field pre-emption. The ourt explained that where ongress “has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of ongress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” –. In finding the Pennsylvania alien-registration law pre-empted, the ourt observed that ongress had “provided a standard for alien registration in a single integrated and all-embracing system” and that its intent was “to protect the personal liberties of law-abiding aliens through one uniform na- tional registration system.” If we credit our holding in that ongress has enacted “a single in- tegrated and all-embracing system” of alien registration and that States cannot “complement” that system or “en- force additional or auxiliary regulations,” at 66–, 74, then Arizona’s attempt to impose additional, state-law penalties for violations of federal registration require- ments must be invalidated. Section 5() While I agree that is pre-empted, I disagree with the ourt’s decision to strike down I do so in large measure because the ourt fails to give the same solici- tude to our decision in De anas, as it is willing to give our decision in In De anas, the ourt upheld against a pre-emption challenge a state law imposing fines on employers that hired aliens who were —————— anticipate that most, if not all, States will eventually issue forms of identification that suffice to establish lawful presence under 12 ARIZONA v. UNITED STATES Opinion of ALITO, J. unlawfully present in the United States. The ourt ex- plained that the mere fact that “aliens are the subject of a state statute does not render it a regulation of immigra- tion.” 4 U. S., The ourt emphasized instead that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” 56. In light of that broad authority, the ourt declared that “[o]nly a demon- stration that complete ouster of state power was ‘the clear and manifest purpose of ongress’ would justify” the conclusion that “state regulation designed to protect vital state interests must give way to paramount federal legis- lation.” 57 (some internal quotation marks omit- ted); see also Bates v. Dow Agrosciences LL, 544 U.S. 431, 449 (“In areas of traditional state regulation, [the ourt] assume[s] that a federal statute has not sup- planted state law unless ongress has made such an intention ‘clear and manifest’ ” (some internal quotation marks omitted)). The ourt now tells us that times have changed. Since De anas, ongress has enacted “a comprehensive frame- work for combating the employment of illegal aliens,” and even though aliens who seek or |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | of illegal aliens,” and even though aliens who seek or obtain unauthorized work are not subject to criminal sanctions, they can suffer civil penalties. Ante, at 12–13 (internal quotation marks omit- ted). Undoubtedly, federal regulation in this area is more pervasive today. But our task remains unchanged: to determine whether the federal scheme discloses a clear and manifest congressional intent to displace state law. The ourt gives short shrift to our presumption against pre-emption. Having no express statement of congres- sional intent to support its analysis, the ourt infers from stale legislative history and from the comprehensiveness of the federal scheme that “ongress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment.” Ante, at 13. ite as: 5 U. S. (2012) 13 Opinion of ALITO, J. Because imposes such penalties, the ourt concludes that it stands as an obstacle to the method of enforcement chosen by ongress. Ante, at 15. The one thing that is clear from the federal scheme is that ongress chose not to impose federal criminal penal- ties on aliens who seek or obtain unauthorized work. But that does not mean that ongress also chose to pre-empt state criminal penalties. The inference is plausible, but far from necessary. As we have said before, the “decision not to adopt a regulation” is not “the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.” Sprietsma v. Mercury Marine, With any statutory scheme, ongress chooses to do some things and not others. If that alone were enough to demonstrate pre- emptive intent, there would be little left over for the States to regulate, especially now that federal authority reaches so far and wide. States would occupy tiny islands in a sea of federal power. This explains why state laws implicating traditional state powers are not pre-empted unless there is a “clear and manifest” congressional inten- tion to do so. Not only is there little evidence that ongress intended to pre-empt state laws like there is some evidence that ongress intended the opposite result. In making it unlawful for employers to hire unauthorized aliens, see 8 U.S. ongress made it clear that “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws)” upon employers was pre-empted, Noticeably absent is any similar directive pre-empting state or local laws targeting aliens who seek or obtain unauthorized employment. Given that ongress expressly pre-empted certain state and local laws pertaining to employers but remained silent about laws pertaining to employees, one |
Justice Kennedy | 2,012 | 4 | majority | Arizona v. United States | https://www.courtlistener.com/opinion/803270/arizona-v-united-states/ | employers but remained silent about laws pertaining to employees, one could infer that ongress intended to preserve state and local authority to 14 ARIZONA v. UNITED STATES Opinion of ALITO, J. regulate the employee side of the equation. At the very least, it raises serious doubts about whether ongress intended to pre-empt such authority. The ourt dismisses any inferences that might be drawn from the express pre-emption provision. See ante, at 14. But even though the existence of that provision “does not bar the ordinary working of conflict pre-emption principles” or impose a “ ‘special burden’ ” against pre- emption, 529 U.S. 861, –870 it is still probative of congressional intent. And it is the intent of ongress that is the “ulti- mate touchstone.” Retail lerks v. Schermerhorn, 375 U.S. 96, 3 (1963). The ourt infers from ongress’ decision not to impose federal criminal penalties that ongress intended to pre- empt state criminal penalties. But given that the express pre-emption provision covers only state and local laws regulating employers, one could just as well infer that ongress did not intend to pre-empt state or local laws aimed at alien employees who unlawfully seek or obtain work. Surely ongress’ decision not to extend its express pre-emption provision to state or local laws like is more probative of its intent on the subject of pre-emption than its decision not to impose federal criminal penalties for unauthorized work. In any event, the point I wish to emphasize is that inferences can be drawn either way. There are no necessary inferences that point decisively for or against pre-emption. Therefore, if we take seriously that state employment regulation is a traditional state concern and can be pre-empted only on a showing of “clear and manifest” congressional intent as required by De anas, then must survive. “Our precedents estab- lish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a fed- eral Act.” hamber of ommerce of United States of America v. 563 U.S. (plurality opinion) ite as: 5 U. S. (2012) 15 Opinion of ALITO, J. (slip op., 2) (internal quotation marks omitted). I do not believe the United States has surmounted that barrier here. Section 6 I also disagree with the ourt’s decision that is pre- empted. This provision adds little to the authority that Arizona officers already possess, and whatever additional authority it confers is consistent with federal law. Section 6 amended an Arizona statute that authorizes warrantless arrests. See –3883 (West 20). Be- fore was added, that statute already permitted |
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