threading the needle: constitutional ways for ... - UDC Law Review

More documents

Recommendations

Info

\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 10 11-JAN-13 11:44 132 UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW federal law passed in 1996 that specifically prohibited any government entity or official from restricting the exchange of information with the INS about the immigration or citizen status of any individual or the maintenance of such information. Nine days after the federal law was signed by President Clinton, New York City brought a declaratory judgment action claiming that the federal law was facially unconstitutional and that the N.Y.C. Mayor’s Order remained valid. 50 The city, relying chiefly on the Tenth Amendment and state sovereignty principles, said that the federal law improperly interfered with local government control over the use of information acquired in the course of its official business and with the state’s ability to control its own workforce with respect to handling confidential information that employees acquire in their official capacities. 51 The city pressed essentially two arguments, both of which were rejected by the court of appeals. 52 First, the city argued that its sovereign power included the power not to participate in federal regulatory programs and that the N.Y.C. Mayor’s Order not to disclose information to the INS facilitated that power. The city relied on Printz to say that it had the right to not participate in a federal regulatory program and to forbid voluntary cooperation by its employees in a federal program. The court of appeals properly viewed this as an overbroad reading of Printz. Printz drew the line at compelling states to participate in the actual administration of a federal program or in the actual enforcement of federal law or policies against a state’s own citizens. As the court noted, the federal law at issue did not “directly compel states or localities to require or prohibit anything.” 53 Rather, the federal law prohibited “state and local governmental entities or officials only from directly restricting the voluntary exchange of immigration information with the INS.” 54 The court noted the dire consequences of a broad based claim of non-cooperation, namely deadlock and one sovereign holding the other hostage. 55 “A system of dual sovereignties cannot work without informed, extensive, and cooperative interaction of a voluntary nature between sovereign systems” and thus “states do not retain under the Tenth Amendment an untrammeled right to forbid all voluntary cooperation by state or local officials with particular federal programs.” 56 The court acknowledged that it might be difficult to draw a precise line between an invalid Printz-violative federal action that would conscript states into the ac- 50 City of New York v. United States, 971 F. Supp. 789 (S.D.N.Y. 1997), aff’d, 179 F.3d 29 (2d. Cir. 1999). 51 Id. at 797. 52 City of New York, 179 F.3d at 37. 53 Id. at 35. 54 Id. 55 Id. 56 Id.
\\jciprod01\productn\D\DCR\16-1\DCR101.txt unknown Seq: 11 11-JAN-13 11:44 THREADING THE NEEDLE 133 tual administration of federal programs and valid federal action that prohibited states from forcing their employees to engage in passive resistance against particular federal programs. But it was clear to the court that the federal law prohibiting restrictions on the voluntary disclosure of immigration information fell on the valid side of the line and could easily withstand the city’s facial challenge. 57 The city’s second argument was that the federal prohibition on restricting voluntary disclosure of information substantially interfered with a local government’s control of official information and of its own employees with respect to that information. The court expressed sympathy with the city’s burden argument. It noted that, “[t]he obtaining of pertinent information, which is essential to the performance of a wide variety of state and local governmental functions, may in some cases be difficult or impossible if some expectation of confidentiality is not preserved.” 58 Seemingly contrary to the dictates of Garcia, the court then engaged in a kind of balancing test, weighing the federal law’s burden on the city against the harm to federal policies that would result from the city’s non-cooperation. The court concluded that because the city’s policy did not protect confidential information generally but surely operated to reduce the effectiveness of a federal policy, the federal law was valid. Yet, despite the court’s flirtation with a Garcia-prohibited burden analysis, City of New York, did not directly resolve the issue of whether states could be forced to disclose information and a fortiori did not decide whether states could be forced to collect information in the first instance. Moreover, City of New York left open the possibility that a well-crafted non-disclosure directive could be insulated from federal interference if it focused on protecting confidential information generally. The court recognized that acquiring and preserving the confidentiality of information is essential to the state’s ability to perform its functions, and that directing employees not to disclose information is a vital tool to achieve the state’s goals. Indeed, the court seemed to acknowledge the validity of the city’s argument that non-disclosure of immigration status and the assurance of non-disclosure were necessary to provide services and to promote the prevention and reporting of crimes by undocumented immigrants. But the city declined the court’s invitation to show how non-disclosure of immigrant status was part of non-disclosure rules more generally and how the Order could be viewed as more of an explanatory measure or special point of emphasis to reassure aliens that the information they disclose would be treated confidentially, even with respect to the INS. So, faced with an Executive Order that was targeted at preventing voluntary disclosures only to the INS, and not a confidentiality policy operating 57 City of New York, 179 F.3d at 35. See also United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). 58 City of New York, 179 F.3d at 36.
Page 1 and 2: \\jciprod01\productn\D\DCR\16-1\DCR
Page 9: \\jciprod01\productn\D\DCR\16-1\DCR

threading the needle: constitutional ways for ... - UDC Law Review

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?