Item 21 - Assembly Bill 937 (the “VISION Act”)

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AB 937 Page 12 In order to avoid confusion and provide the Legislat ure and the public with as much clarity as possible about how this worthy bill affect s and interact s with existing law , the author may wish to amend the Values Act, rather than a new statutory scheme that addresses many of the same topics covered by the Values Act, as this bill does in its current form . Preemption Analysis - When Congress acts under its constitutional powers, it may preempt state laws by one of the following means: (1) an express preemption provision that “withdraw[s] specified powers from the States”; (2) field preemption that “precludes [States] from regulating conduct in a field that Congress . . . has determined must be regulated by its exclusive governance”; or (3) conflict preemption, which occurs when either “compliance with both fe deral and state regulations is a physical impossibility,” or the “state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Arizona v. United States (2012) 567 U.S. 387, 399 [internal quotation marks omitted].) Express Preemption: The only express provisions in federal law that limit the ability of states to enact laws dealing with immigration appear to be 8 U.S.C. 1373 and 8 U.S.C. 1644. The provisions are virtually identical. The only difference appears to be that Section 1644 applies to states or local governments, and says they cannot be prohibited from sending or receiving immigration status information to ICE; whereas, Section 1373 states that federal, state, and local governments cannot be prohibited from sending or receiving of citizenship or imm igration status information to or from ICE. Given that the 9th Circuit Court of Appeals only discussed Section 1373 in its evaluation of the Values Act, this analysis will focus solely on Section 1373. Section 1373 prohibits states from enacting laws or policies that prohibit cooperation with and response to federal requests for immigration status information: [A] Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” (8 U.S.C. 1373 (a) [emphasis added].) While Section 1373 limit s state action to expressly prohibit one type of cooperation (i.e. providing information about immigration status) with the federal government, it does not require any action on the part of states. When it ruled that the Values Act did not violate Section 1373, the 9th Circuit made two observations about state law. First, “SB 54 . . . expressly permits the sharing of [information regarding a person’s citizenship or immigration status], and so does not appear to conflict with [Section] 1373.” (U.S. v. California, supra, 921 F.3d at 890 [emphasis in original].) Second, the Values Act does not expressly prohibit or in any way restrict law enforcement authorities from sharing the particular type of information described by Section 1373. The 9th Circuit did not specify how important either aspect of state law was in its ultimate decision, but only mentioned the first aspect of state law (that the Values Act permits the sharing of information) in passing, and discussed the second aspect at length. Therefore, it is reasonable to assume that the nature of the information at issue in the Values Act was by far the most important reason for the 9th Circuit’s holding that the Values Act did not run afoul of Section 1373. The 9th Circuit pointed out in U.S. v. California that the information which the Values Act prohibited from being shared --“information regarding a person's release date,” and “personal information . . . about an individual, including, but not limited to, the individual's home address