Day: March 3, 2017

Oregon Judge Accused of Assisting Alien Evade ICE Agents Waiting Outside Court Room

According to the Billy Williams, the U.S. Attorney for the District of Oregon, a state judge helped an alien evade ICE agents waiting outside her court room.

Oregon’s top federal prosecutor says a Multnomah County judge helped an illegal immigrant elude ICE agents waiting to deport him. It happened at the Multnomah County Justice Center on January 27 when Diddier Pancheco entered a change of plea for a DUI case, KOIN 6 News learned. ICE agents were reportedly there waiting for him at their usual spots.

But he left through a different door typically used only by court officials. U.S. Attorney Billy Williams said he believes someone helped him get through that door. “I thought it was inappropriate, I thought it was unprofessional,” Williams said. “I strongly believe that it just cannot happen again.” Monica Herranz was on the bench acting as a court referee at the time. Williams said he’s unsure whether Herranz instructed Pancheco to leave through that door. “I don’t know exactly what the referee did inside the courtroom,” Williams said.

Could Congress enact a law requiring state judges to enforce federal immigration law? The answer is probably no–but not for the reasons you may think.

First, Printz expressly exempted state judges from the commandeering doctrine. This flows from the Supremacy Clause, which expressly provides that stated judges are “bound” by the Supreme Law of the Land, whereas state-executive officials are not. As I discuss in my article, State Judicial Sovereignty.

The only clear reference to state courts in the Constitution is Article VI, which provides that the “judges in every state shall be bound thereby” by the supreme law of the land.13 As discussed at some length in Printz v. United States, while the state judges are bound by this law, state executive and legislative branch officials are not so bound.14 “Members of the several State Legislatures, and all executive and judicial Officers,” Justice Scalia wrote for the Court, are only “bound by Oath or Affirmation, to support this Constitution.”15

Further, the “Supremacy Clause, Art. VI, cl. 2, announced that ‘the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.’”98 This is unremarkable, Scalia contended. Judges, unlike legislatures or executives, “applied the law of other sovereigns all the time” under the doctrine of “principle underlying so-called ‘transitory’ causes of action[,]” whereby “laws which operated elsewhere created obligations in justice that courts of the forum State would enforce.”99 This principle is also implicit in the Full Faith and Credit Clause, which “generally required such enforcement with respect to obligations arising in other States.” Thus, it is “understandable why courts should have been viewed distinctively in this regard.”100

The second point is more fundamental. State judges, like all judges, can only act where they have jurisdiction. Congress cannot create state-court jurisdiction. Therefore, to enforce federal immigration law, state courts would have to rely on legislation vested by the state legislature, or the state Constitution. As far as I know, no state court currently exercises such jurisdiction–even in courts of general jurisdiction. (This was not always the case, as Justice Scalia notes in Printz, state courts were routinely asked to hear immigration cases in the 19th Century). Thus, a state judge could decline to enforce federal immigration law, citing a lack of subject matter jurisdiction.

A far more difficult question is what happen if a state affirmatively enacts a law that withdraws from their courts of general jurisdiction the power to hear federal immigration matters. One of the first cases to test this principle was Prigg v. Pennsylvania, which held that state judges could not be compelled to enforce the Fugitive Slave Act, because the Commonwealth deprived them of such jurisdiction.

Another precedent on point, cited by Chief Justice Shaw but not by Justice Day or Justice Scalia, is Prigg v. Pennsylvania. This case considered whether the Fugitive Slave Act preempted a Pennsylvania law that prohibited returning runaway slaves in Pennsylvania back to slave states. In this notorious 1842 opinion, Justice Story found the Fugitive Slave Act “to be clearly constitutional, in all its leading provisions, and, indeed, with the exception of that part which confers authority upon state magistrates.”132 It is the last element that is most relevant to our discussion. The Fugitive Slave Act required state judges to enforce the law. In this oft- forgotten portion of the opinion, which turned out to be quite significant,133 Story—who otherwise believed in autonomy of the two separate courts—found that state courts could be exempted from enforcing the Fugitive Slave Act if state legislatures deprived them of jurisdiction to do so.134 After all, courts without jurisdiction can do nothing.

With respect to the “authority so conferred upon state magistrates, while a difference of opinion has existed, and may exist still, on the point, in different states, whether state magistrates are bound to act under it, none is entertained by this court, that state magistrates may, if they choose, exercise that authority, unless prohibited by state legislation.”135 In other words, in the normal course, in courts of general jurisdiction, state courts were obligated to enforce federal law. But, state legislation could deprive state judges of subject matter jurisdiction concerning the Fugi- tive Slave Act. (Many states would go on to do just that after Prigg, pre- venting their state judges from being complicit in the Act.) This was ef- fectively the reasoning relied on by Chief Justice Shaw in Stephens, in finding that the Massachusetts statute that deprived state courts of juris- diction over naturalization matters was constitutional. In Haywood v. Drown, Justice Thomas likewise noted that in Prigg v. Pennsylvania, the Supreme Court concluded that the state courts could not “be compelled to enforce” the 1793 Fugitive Slave Act.136

This portion of Prigg is in conflict with the Court’s 2009 decision in Haywood v. Drown, which invalidated a New York law that “divests New York’s state courts of subject-matter jurisdiction over suits seeking money damages from correction officers” under 42 U.S.C. § 1983, and consolidated jurisdiction in specific courts of claims. As Justice Thomas noted in his dissent, the majority opinion doesn’t mention Prigg. I maintain that Drown was wrongly decided, and here Justice Story got it right.

In any event, an Oregon law that deprived courts of jurisdiction over federal immigration matters would run afoul of Drown, but not the Constitution.

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Events on Monday: Cardozo Law on Rule 8.4(g) and National Constitution Center on Obamacare

On Monday at noon, I will be speaking at the Cardozo School of Law Federalist Society Chapter on ABA Model Rule 8.4(g). Professor Anthony Sebok will kindly provide commentary. You can read my forthcoming essay in the Georgetown Journal of Legal Ethics on this topic.

Later that evening, I will be speaking at the National Constitution Center in Philadelphia about the future of Obamacare. I will be joined by Abbe Gluck (Yale Law School) and Julie Rovner (Kaiser Health Network). I will be signing copies of Unraveled. You can register here.

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National Constitution Center Podcast: The Future of Federalism

On February 23, I participated in a live recording of the National Constitution Center’s “We the People” podcast, to discuss The Future of Federalism. The program was hosted by Jeff Rosen, and my interlocutor was Georgetown Law professor Peter Edelman.

During the hour-long program, we covered everything from sanctuary cities to marijuana legalization to environmental policy. This was a very thoughtful discussion, and articulated areas of agreement, as well as disagreement.

You can listen at the NCC, or on SoundCloud.

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