Now that we’re all immigration lawyers, we figured we’d better take a gander at the complaint filed yesterday by the feds, seeking to strike down Arizona’s new immigration law.  The feds say Arizona’s law is preempted by federal law and policy, and so must be struck down under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.  (You can read the complaint for yourself here.  The text of the law can be found here.) 

After reading the complaint in its entirety, we have to say that it’s mostly stupid. 

The law was hotly criticized by the Obama administration even before it was enacted back in April, so it’s no surprise that this action was filed.  We’re surprised it took this long to do it.  And we’re even more surprised, given how long it took, that the feds did such a shoddy job of it.

In broad strokes, Arizona wants to deter illegal aliens from sticking around in Arizona.  To that end, among other things, the law:

• Tells Arizona police they have to verify someone’s lawful presence if, during an otherwise lawful stop, they have reasonable suspicion that the person might be here unlawfully.  §11-1051(B) [referred to as Section 2 in the complaint]. 
• Amends existing law, permitting police to make a warrantless arrest if the officer has probable cause to believe that a misdemeanor or felony has occurred, to add that the police can make a warrantless arrest on probable cause to believe the suspect committed an offense for which he could be deported.  §11-1051(E) [in Section 2 of the bill, but perplexingly referred to as Section 6 in the complaint]. 
• says Arizona citizens can sue for money damages if any Arizona state or local official or agency “adopts or implements a policy” of not enforcing federal immigration laws to the extent permitted by federal law.  §11-1051(G) [Section 2]. 
• makes it a crime of trespassing to be present in Arizona in violation of federal law.  §13-1509(A) [Section 3]. 
• amends existing state law against smuggling human beings (§13-2319 [Section 4]) to permit the police to stop a car they reasonably suspect to be in violation of both a traffic law and the already-existing law against smuggling.  
• prohibits illegal aliens from seeking work in the state.  §13-2928(C) [Section 5].
• makes it illegal for “a person who is in violation of a criminal offense” to transport or harbor illegal aliens.  §13-2929(A) [Section 5].

The general argument the feds make is deliciously ironic: Requiring compliance with federal law would conflict with federal law.  At first glance, it seems like everyone at the DOJ who approved this complaint skipped Logic 101, and listened instead to John Cleese’s logic monologue on the Holy Grail album.  But this is not really the stupid bit. 

Their argument is more along the lines of (1) the feds get to determine policy of how and when the feds enforce their own laws; (2) Arizona isn’t telling the feds what to do, but it’s going to be enforcing the same laws more thoroughly; so (3) Arizona is messing with the feds’ policy.  This is one of the stupid bits, because nowhere does Arizona tell the feds what to do or how to do it.

The Complaint commits some intellectual dishonesty, however, to make it seem so anyway.  They repeatedly misquote the Arizona law to say a citizen can sue “any” official or agency for failing to enforce the immigration law.  They make it sound like Arizona citizens could sue federal officials for failing to enforce federal law.  But that’s not at all what is said.  The Arizona law only permits a private cause of action against Arizona officialdom, for failure to enforce that particular section of Arizona law.  It is obvious that the DOJ knew what it was doing in trying to make it sound otherwise, and this lame attempt to deceive the court (and the media) is not what we’d have expected.

We also might point out to the feds that policy is different from law.  The Supremacy Clause only prohibits the states from conflicting with federal law.  There is nothing saying the states have to go along with the policies of whoever happens to be enforcing such law at any given time.  The whole stepping-on-our-policy-toes argument is pretty much irrelevant to this analysis.

The feds also complain that Arizona’s goal — attrition of illegal aliens — is only one of many other goals the feds have.  The feds are more focused on getting rid of criminal or terrorist aliens, and don’t really care so much about the rest, says the complaint.  So Arizona locking up the others would be contrary to federal policy and here we go again. 

Paragraph 36 alone makes any number of howlers here.  It says the Arizona law “attempts to second-guess federal policies and re-order federal priorities.”  It tries to “directly regulate immigration.”  It “disrupts the national enforcement regime.”  It attempts to “set state-specific immigration policy.”  It “legislates in an area constitutionally reserved to the federal government.”  It “conflicts with federal immigration laws.” 

We’re not particular fans of the Arizona law, but an honest observer would have to admit that it does none of those things.

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The feds make the bizarre contention that Arizona is “supplanting the federal government’s immigration regime with its own.”  Really?  Where?  Nowhere does Arizona create additional barriers to immigration other than those already enacted in federal law.  Nowhere does Arizona reduce the federal barriers to immigration.  Arizona doesn’t restate or redefine the federal laws. Nowhere does the new law “establish the terms and conditions for entry and continued presence” or “regulate the status of aliens.” All the state did was refer to federal law as it already exists.  Arizona’s only saying that, if you violate federal law in Arizona, then it’s a violation of Arizona law, too.  If it’s not a violation of federal law, it can’t be a violation of the Arizona law.

It’s as if the feds are saying the Supremacy Clause means that, if the feds have outlawed certain conduct, the states cannot outlaw the same conduct.  Forget “as if” — that’s precisely what the feds are saying here.  And that’s nonsense.  Outlawing something the feds also outlaw is safe, legal and commonplace.

The complaint repeats several times that the Arizona law would force the feds to change their priorities and shift their focus away from criminals and terrorists.  The law doesn’t tell the feds what to do, however, or how to do it.  So what is the complaint on about?

It finally explains itself in Paragraph 44:  The number of police requests for verification of immigration status is going to increase.  The Department of Homeland Security will have to spend more time answering those requests.  That’s going to take resources away from stuff the feds think is more important.

The legal term for this argument is “horseshit.”  As in most states, Arizona police already had the discretion to seek such verification on a case-by-case basis.  It’s already part of DHS’s job to provide that verification.  The complaint’s argument is that any increase in demand for DHS’s services already being provided — doing more X when they’d rather be doing Y — would interfere with federal priorities, and “such interference with federal priorities, driven by state-imposed burdens on federal resources, constitutes a violation of the Supremacy Clause.”  Again, horseshit.

Also, it’s hard to imagine how even a sizeable burst in demand for such basic data would divert DHS agents from their field work or whatnot.  This is 2010, after all.  We may not have flying cars or interstellar tourism, but we sure as hell have mad database skillz.  Nigh-instantaneous searches of digital records is commonplace and cheap.  The complaint’s argument here just doesn’t jibe with reality.

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To their credit, the feds did try to make a legitimate argument here.  The problem is, it appears to have been written by lawyers who have less than a passing acquaintance with criminal law or civil-rights law.  The Arizona law is a criminal law, not an immigration law, but the feds seem to have put their immigration people on the job.  Mistake.

The legitimate argument is that people are going to wind up getting detained when they haven’t violated the federal law, and they’re going to be stuck there because they don’t happen to be carrying proof of their lawful presence with them at the time.  No matter what legislative fixes they add to prevent it, the truth is that people are going to get hassled because they look Mexican.  There are valid civil-rights problems that could easily arise in the enforcement of the law. 

But that’s an issue with the enforcement of the law, not with the law itself.  And anyway, it has nothing to do with the Supremacy Clause.  Sorry.

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The complaint keeps dishing out the stupid.  Starting on paragraph 57, it goes on about the bit letting cops make a warrantless arrest if they believe the suspect committed a deportable offense. 

The feds acknowledge that Arizona law already allowed cops to make a warrantless arrest on probable cause to believe that a misdemeanor or felony had occurred.  So the issue is whether there are any deportable offenses that aren’t misdemeanors or felonies. 

§13-601 describes only three classifications of offenses: felonies, misdemeanors and petty offenses.  A cursory review of the petty offenses in Arizona law turns up things like feeding wildlife, failure to appear, giving tobacco to a minor, and such.  There may be something Arizona calls a petty offense that could get you deported, but we haven’t found it. 

This bit, like the rest of the complaint, is much ado about nothing.  It doesn’t seem like Arizona has given its police any more power to make warrantless arrests than before.

The feds also go on about how this section “makes no exception for aliens whose removability has already been resolved by federal authorities.”  But it beggars reason to suspect that the feds have already vetted whether your crime should result in deportation before you have even been arrested for the crime in the first place.  If any of the DOJ lawyers who wrote the complaint are reading this, deportation tends to come after conviction, not before arrest.  Just saying.

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We could go on, but it’s getting late, and we have actual work to do.  We happen to dislike the Arizona law, though it’s obvious that Arizona is in a tough position.  We don’t like the federal immigration laws any better.  They make as much sense as going in the other direction and just annexing Mexico and giving everyone there the vote.  (Actually, that makes more sense than current U.S. policy.  But then again, our stance on immigration is very close to “the more the merrier.”)

It was a foregone conclusion that the Obama administration was going to challenge this law.  They could have gone with an Equal Protection argument, but they didn’t.  Instead they went with the Supremacy Clause.  And that’s revealing.

It reveals that they didn’t think the civil rights issues were winners.  But more than that, it reveals that the administration thinks its policies to be supreme to those of the states.  That’s not what the Supremacy Clause deals with.  That only deals with actual laws, created by Congress, not policies adopted by a president.  It is an act of dangerous hubris for the administration to make these arguments.  A wise court will shut this case down, if only to protect the country from an increasingly powerful federal executive.

But also because it’s just stupid.

It looks like we spotted the trend.  Unfortunately.

Last week we noted that, when faced with an ambiguous statute, some on the Supreme Court are now willing to read new language into the statute, rather than toss it back to Congress to do it right.  And we wondered if that might be a harbinger of what was to come in the “honest services” cases of Black, Weyrach and Skilling.

Well, those cases came down this morning, and sure enough the majority decided to read in new language, rather than toss out the statute for being vague.

It’s great for the defendants, whose honest-services convictions got tossed.  But to get there the Court had to change the rules.  Now, judicial invention is a perfectly acceptable method of statutory interpretation… so long as the new language is what “everybody knows” the statute really meant to say.  And that’s bloody dangerous. 

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We’ve been paying close attention to this issue (see other posts here, here, here and here), as have many others, because the feds love charging people with honest services fraud.  It’s so vague and open-ended, that it potentially criminalizes any activity that’s outside one’s job description.  That makes it a great catchall when you can’t prove something more substantive.  But it’s also not at all what Congress intended.

“Honest services” fraud was originally a judge-created law.  There wasn’t any statute criminalizing it, it just sort evolved via common law, accepted in all the Circuits.  But we don’t do common-law crimes in this country, for one thing, and the mail fraud statute didn’t say anything about intangible rights, so in 1987 the Supreme Court threw out the common-law version of honest services fraud.  If Congress wanted to criminalize it, then that was up to Congress.

The idea was pretty simple: If you had a position of trust, and you abused that position for private gain (say, by taking bribes or kickbacks), then you were depriving people of the services you ought to have been giving them had you been honest.  You were getting paid under the table to do your job wrong.  So in 1988 Congress came up with 18 U.S.C. § 1346.

But the language didn’t say anything about abusing a position of trust.  Instead, it just said that fraud included a scheme “to deprive another of the intangible right of honest services.”  And didn’t define what “the intangible right of honest services” meant.

And nobody knew what it meant.  That’s how prosecutors liked it, because real-life corruption charges are notoriously difficult to prove.  It’s hard to get solid evidence of bribery and kickbacks, especially when the only real evidence would have to come from the parties themselves.  But if the feds could skip all that and just charge a mail/wire fraud, based on this amorphous intangible thing nobody really understood, then they could prosecute all they want with just the barest modicum of evidence.  And so they did.

But now, in the Black, Weyrach and Skilling cases, the Supreme Court was asked to find the statute unconstitutionally vague.

Instead, however, the Court has decided to read the statute as if it had been written properly, instead of making Congress go back and do it right.

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In Skilling v. U.S. (opinion here), the Court ruled that §1346 only covers bribery and kickbacks.  Since none of the defendants in Black, Weyrach and Skilling were charged with any bribery or kickbacks, these charges had to be dismissed.

But nowhere in the statute does it mention bribery or kickbacks.  And the feds have used it to prosecute any number of things that involved neither.  So clearly the feds, at least, understood it to mean more than just bribery and kickbacks.  And the Circuits that upheld such convictions understood it to mean more than that. 

Nevertheless, despite the fact that a lot of smart and reasonable people understood the statute to cover more than just bribery and kickbacks, the Court’s decision today says that everyone knows that’s what the statute meant.  Because everyone knows what Congress really meant to say, the statute’s not unconstitutionally vague.

Due process requires a penal statute to define the offense definitely enough so that ordinary people understand what’s prohibited, and so that it is not enforced arbitrarily.

The Court said ordinary people understand what’s prohibited — not in light of the way it’s actually enforced these days, which is unpredictable at best — but in light of the way the common-law doctrine had evolved prior to 1987. 

It’s obvious that Congress meant to embody that common-law doctrine, which dealt pretty much with bribery and extortion.  So if you interpret the statute to only encompass such acts, it’s not unconstitutionally vague.  Everyone knows you’re not supposed to do that stuff.

Seriously.  That’s the relevant portion of the opinion, in a nutshell.  “Yeah, it’s vague as written, but if it were written to say what Congress meant to say, then it’s not vague.  So we’ll interpret it as if it had been written properly.”

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Justice Ginsburg wrote the opinion.  Part III is the section that deals with this issue (it begins on page 34 of the opinion).  As to Part III, she was joined by Roberts, Stevens, Breyer, Alito and Sotomayor.

Scalia, joined by Thomas and Kennedy, said the Court should not have rewritten the statute, but should have found it unconstitutionally vague.  “In transforming the prohibition of ‘honest-services fraud’ into a prohibition of ‘bribery and kickbacks,’ [the Court] is wielding a power we long ago abjured: the power to define new federal crimes.  See United States v. Hudson, 7 Cranch 32, 34 (1812).”  A vague statute cannot be saved “by judicial construction that writes in specific criteria that its text does not contain, see United States v. Reese, 92 U.S. 214, 219-221 (1876).”

Once again, we agree wholeheartedly with Scalia.  His opinion delightfully picks apart the errors of the majority’s statutory interpretation.  Our favorite passage is this one:

Arriving at that conclusion requires not interpretation but invention.  The Court replaces a vague criminal standard that Congress adopted with a more narrow one (included within the vague one) that can pass constitutional muster.  I know of no precedent for such “paring down,” and it seems to me clearly beyond judicial power.

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Unfortunately, Scalia’s wrong.  There is precedent.  This Court is creating it as you’re reading this.  Last week’s Dolan decision was the start of a rule expressly permitting judicial invention as a method of statutory interpretation.  Today’s Skilling decision is a major adoption of that rule.

We wish it were otherwise, but it would be foolish to expect the Court to not apply that rule in future cases.

Still, it’s a good outcome.  Honest-services fraud is no longer a tool for lazy prosecution of cases that couldn’t otherwise be proven.  We just wish the Court had done it right, and thrown out the law entirely.

“Hate” is not an element of New York’s “hate crime” law.  You don’t have to hate to commit a hate crime.  Instead, the law merely requires that you have “a belief or perception” regarding a person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.  (The legislature could have saved a lot of bother by simply saying “a characteristic of a person over which that person has no control.”  That’s the policy they’re pursuing, even if they don’t realize it.)

There’s a list of eligible crimes at PL §485.05(3).  If you commit one of those crimes, and if you either chose your victim or committed the crime because of such “a belief or perception,” then you are guilty of a hate crime in New York, and now face harsher punishment.

This is a pretty vague statute.  You don’t need to have any specific belief or perception about someone, just “a” belief or perception.

The Queens DA’s office — already known more for its zeal than for its sense of justice — has now taken that vagueness to its logical extreme.  They’ve taken the reductio ad absurdum and made it office policy.

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The New York Times reports today that the Queens DA has been going after people who defraud old people, not because of any animus towards old people, but because of a belief about old people.  Namely, that old people are easy to defraud. 

Ordinarily, such frauds do not carry any mandatory jail time.  But if charged as a hate crime, they carry mandatory upstate prison time.  Can it be that the legislature really intended this outcome?

By the Queens DA’s logic, every scam targeted at the elderly is a hate crime, because the scam rests on a belief that old folks are easy to scam. 

By this same logic, any fake charity targeting Catholics would be a hate crime, because the scam rests on a belief that Catholics would give to that particular charity.

By this same logic, every rape of a woman is a hate crime, because the rape rests on a belief that women have vaginas that can be penetrated.

By this same extreme logic, every murder of a blind person is a hate crime, because the murder rests on a belief that blind people have lives that can be taken.

Of course that’s absurd.  This is all absurd.  There are already laws on the books dealing with such scams and crimes.  There are already penalties thought out and voted on for people who commit scams and rapes and whatever.  It cannot be that the legislature intended them to face even more time than the law already gives them.

So what’s going on here?

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What we have here is the legislature failing to get the concept.

The whole point of a hate crime is to impose more severe sentences based on a more severe mens rea. 

If you think about it, mens rea is what determines the severity of a crime.  For any given criminal act, the more culpable the mental state, the more severely it is punished.  Negligence is worse than accident.  Knowledge is worse than recklessness.  Intent or purposefulness are worse than the rest. 

Hate crimes enhance a sentence based on an extra mental state.  But unlike the other mental states, the focus isn’t on what you were thinking about your own actions, but what you were thinking about the victim.  (See more on all this here, here and here.)

And as pointed out above, it’s got to involve something over which the victim has no control.  Nobody can help how they’re made, and it’s wrong to hurt someone because of it.  That’s the policy underlying discrimination law, substantive due process, and related jurisprudence.  And it’s the same policy underlying hate crime laws.

But there also has to be some animus: You’re targeting old people because you don’t like them, not because they’re more likely to fall for a con.  You’re targeting gays because you think they’re bad, not because they’re more likely to have stuff worth burgling.  You’re targeting black/white/purple people because you think they deserve it, not because you’ve simply selected them as more likely targets.

That is, after all, the whole point.  If you’re mugging Asian people, not because of any animus towards their race, but because you think they’re more likely to carry cash worth taking, then your mens rea isn’t any worse than any other mugger.  There’s nothing extra-invidious about your crimes.

This is what New York failed to grasp.  The whole policy of hate crimes is to give greater punishment to invidious behavior, yet New York left the whole invidious aspect out of the law.  They wrote it into their policy preamble, but left it out of the definition of the crime.

And now it’s being used as a weapon to get mandatory jail time when the legislature clearly contemplated no such thing.

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ADA Kristen Kane, head of the Queens DA’s elder fraud unit, is quoted by the NYT as saying that’s a good thing.  “We don’t have a whole lot of tools,” she’s quoted as saying.  “We should utilize what the legislature has given us.”

Forgive us, but that’s a load of hooey.

That line “we don’t have a whole lot of tools…”  You know what that means?  It means she sees her job as something other than what it is.  She sees her job as putting people in prison. 

There aren’t a lot of tools, it is true, for getting a fraudster mandatory prison time when the amount at issue is less than a million dollars.  Because the legislature has not set any mandatory prison time for such crimes.

But there are a lot of tools for doing her actual job, which is to see that the actual law is enforced, and that greater justice is done.  She has all the same tools to do that job as any other New York prosecutor.  And many of them seem to do their jobs quite well.

When she’s saying “we should utilize what the legislature has given us,” what she’s really saying is “we think the law should impose stiffer sentences here, and we’re willing to take improper advantage of an ambiguity in the statute in order to get stiffer sentences that the legislature never intended.”

Well, that’s not the DA’s job.  The legislature may have erred in drafting the law too carelessly, but it is flatly unethical for the DA to misuse the law in this way.

It was a case of very strange bedfellows today at the Supreme Court.  The 5-4 decision in Dolan v. U.S. (opinion here) wasn’t split on ideological lines, but on lines of seniority.  The majority consisted of the five most junior Justices, while the senior Justices were joined in a solid dissent.  So Thomas and Alito sided with Breyer, Ginsburg and Sotomayor.  And Roberts and Scalia were united with Stevens and Kennedy.

What gives?  We suggest that it reflects a changing approach to statutory interpretation. 

The case is about how to interpret 18 U.S.C. § 3664(d)(5), which says a sentencing court has to order restitution within 90 days of sentencing, but fails to specify what happens if the deadline is missed.  Specifically, it says that, if losses aren’t calculated 10 days before sentencing, the court “shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.”  That word “shall” is pretty strong, and its accepted meaning is “must.”  In other words, a court has no choice here, no discretion, but “must” set a restitution amount within 90 days.  But there is no provision for remedies if that doesn’t happen.  So the Court had to fill in the blanks.

The majority reasoned that, given that the whole point of the statute is to ensure speedy restitution to victims, Congress couldn’t possibly have intended for restitution to be forfeited if a court takes too long.  And Congress wasn’t particularly concerned with giving finality to defendants, but anyway so long as the defendant is on notice that restitution is in fact going to be ordered, the defendant isn’t harmed if the deadline is missed. 

The dissenting Justices pointed out that this interpretation makes a nullity of 18 U.S.C. § 3664(d)(5).  The 90-day deadline is no deadline at all.  The majority allows restitution to be ordered at any time after sentencing, thereby gutting the plain language of the statute.

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There are a number of canons of statutory construction, many of which have been around for a long time.  Taken together, they’re fairly commonsensical and intuitive.  If something’s ambiguous, you figure out its meaning from the context of the rest of the statute.  Words that are used are presumed to have meaning, and aren’t supposed to be ignored.  Et boring cetera.

Here, there’s a sort of conflict between different canons.  The majority’s preference is to fill in the blanks from the context, and if that means undermining a clearly-worded portion of the statute, then so be it.  The minority says you can’t do that — if Congress said courts “shall” do something, courts can’t come along and change that to “may” just because it seems to make better sense.

We’re in line with the minority, as it happens.  An interpretation of an ambiguity shouldn’t be allowed to trump existing clear language.  That would make the court a legislator, deleting language that had been enacted, and inserting language that was never voted on.  Seems like a straightforward violation of the separation of powers.

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Note that this isn’t an originalism issue.  It’s not about interpreting the Constitution, and whether its meaning changes over time.  It’s not even about whether the meaning of a statute changes over time.  So this isn’t a formalist/activist issue, and that is reflected by the fact that Scalia and Stevens are on the same side here.

And this isn’t a conservative/liberal issue, either.  It’s not really a case of the Justices imposing their own judicial philosophy on the statute.  Everyone’s trying to interpret what Congress was doing. 

Instead, the issue is whether Congress should be forced to go back and do it right, or whether the courts can step in and save everyone the hassle.  The senior minority would have sent the statute back to Congress to define the consequences for missing the deadline.  The junior majority says we all know what they would be, so let’s go ahead and define them here.

It’s kinda like formalism/activism, but not quite.  It’s sorta like conservative/liberal, but not really.  We dunno what you’d call it.  It’s more rule-oriented vs. goal-oriented.  One looks back at what Congress said, and the other looks forward to what Congress meant.

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Well, whatever’s going on, the rule now is that the 90-day deadline doesn’t count, so long as the defendant knew the amount was going to be set at some point in the future.  That sucks for defendants in complex cases, particularly those involving multiple defendants, where the amount of loss could be litigated several times in separate sentencing proceedings (we’re involved in a case like that right now, where the various sentencing proceedings have been going on since 2008, so we know of what we speak).  If the 90-day rule was hard and fast, then the government wouldn’t be able to muck around on the issue of restitution and put it off till after everyone else got sentenced, and they’d had the chance to re-litigate the issue to death.  They’d be in a pickle, and would have to get everyone sentenced within 90 days of each other.  But under today’s ruling, the government can take its time, while defendants suffer the extra expense and agida, and victims wait ever longer to get their money back.