Was Tennessee's 2011 'Lawful Immigration Enforcement Act' constitutional?

Subject

Opinion No. 11-42, Constitutionality of Proposed "Lawful Immigration Enforcement Act", May 5, 2011

Plain-English summary

In 2011, Tennessee was considering an immigration bill modeled in part on Arizona's then-controversial SB 1070. The Tennessee version (SB0770/HB1578 and SB0780/HB1380, identical bills) would have done three big things: (1) forbidden state and local officials from limiting enforcement of federal immigration law "to less than the full extent permitted by federal law," (2) given any eligible voter "who believes" the state or a local official had failed in that duty a private right of action in chancery court, with mandamus, injunction, contempt, and $500 to $5,000 civil penalties available against them, and (3) required officers who developed "reasonable suspicion" that someone they had lawfully stopped was unlawfully present in the United States to seek federal verification of that person's immigration status, with secure transport to a federal facility a permitted next step.

Representative Mike Stewart asked the AG to assess three constitutional problems. The AG agreed all three were real.

First, the private-suit machinery in Sections 3 and 4 was likely unconstitutional under Tennessee's separation of powers, at least as applied to the Governor. The Tennessee Supreme Court had repeatedly refused to subject the Governor to mandamus, treating the Governor as exclusively an executive officer not subject to judicial coercion. As for other officials, the courts would likely refuse to enlarge mandamus to compel "full" immigration enforcement, because that involves prosecutorial-style discretion and is not the kind of ministerial duty mandamus reaches.

Second, the immigration-verification section (Section 8) had a Fourth Amendment problem if it were read to authorize officers to prolong an otherwise lawful stop just because they suspected unlawful presence. Unlawful presence is not itself a crime. The Sixth Circuit's United States v. Urrieta observation, the federal government had represented in the parallel Arizona litigation that an average immigration-status inquiry through DHS's Law Enforcement Support Center could take over 80 minutes, and ordinary Terry-stop case law combined to make prolonged detentions on mere unlawful-presence suspicion unconstitutional seizures.

Third, in light of the Ninth Circuit's United States v. Arizona decision (April 11, 2011), which enjoined the parallel Arizona § 11-1051(B), Section 8 of the Tennessee bill was subject to serious conflict-preemption challenge. The AG noted that the Ninth Circuit decision was not binding in Tennessee, that there was a vigorous dissent (Judge Bea) reading 8 U.S.C. §§ 1357(g) and 1373(c) the other way, and that further review by the Ninth Circuit en banc or the U.S. Supreme Court was possible.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, the U.S. Supreme Court's 2012 decision in Arizona v. United States, 567 U.S. 387 (2012), reshaped federal preemption analysis for state immigration laws after this opinion was issued. Anyone reading this opinion to understand current preemption doctrine should consult the post-2011 case law.

Background and statutory framework

Separation of powers. Tennessee's Constitution, art. II, §§ 1 and 2, divides government into three departments and forbids one department from exercising powers belonging to the others. The Governor, vested with the supreme executive power, "take[s] care that the laws be faithfully executed" (Tenn. Const. art. III, §§ 1, 2, 10). Long-standing Tennessee Supreme Court decisions, Turnpike Co. v. Brown (Tenn. 1875) and State ex rel. Latture v. Frazier (Tenn. 1905), refuse to subject the Governor to mandamus or injunctive relief, on the theory that the office is unitary and executive in character even when the act in question might be called ministerial. The remedy for executive misconduct, the Court said in Bates v. Taylor (Tenn. 1889), is the political one of impeachment.

For other state officers, mandamus is available but only to compel purely ministerial duties. The classic formulations come from State ex rel. Motlow v. Clark (Tenn. 1938), North British & Mercantile Co. v. Craig (Tenn. 1901), and State ex rel. Park v. Beasley (Tenn. 1945). Discretionary or judgment-based duties are not enforced by mandamus.

Fourth Amendment. Terry v. Ohio (1968) authorizes brief investigatory stops on reasonable suspicion. The detention "must be temporary and last no longer than necessary to effectuate the purpose of the stop" (Florida v. Royer, 460 U.S. at 500). Officers must use the least intrusive means reasonably available to confirm or dispel their suspicions (State v. Simpson, 968 S.W.2d 776; State v. Webb, 2011 WL 486850). Muehler v. Mena (2005) allows immigration-status questions during a stop, but only if they do not prolong the detention. Unlawful presence in the United States is not a federal criminal offense (United States v. Urrieta, 520 F.3d at 571-72, 574); it is a basis for removal under 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)-(C). The Sixth Circuit observed in Urrieta that, with limited exceptions, "local law enforcement officers cannot enforce completed violations of civil immigration law (i.e., illegal presence) unless specifically authorized to do so by the Attorney General." That observation was dictum and not unanimously shared in other circuits, see United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001) (contrary view).

Preemption. Power over immigration is "unquestionably exclusively a federal power" (DeCanas v. Bica, 424 U.S. at 354). The Ninth Circuit's preliminary-injunction decision in United States v. Arizona, 2011 WL 1346945 (9th Cir. Apr. 11, 2011), upheld the district court's injunction against Ariz. Rev. Stat. § 11-1051(B), the Arizona mandatory-status-check provision. The court read 8 U.S.C. § 1357(g)(1)-(9) and (g)(10) together to mean that systematic state immigration enforcement must occur under federal supervision, and that state laws "dictating how and when state and local officers must communicate with the Attorney General regarding the immigration status of an individual" interfere with that scheme. Judge Bea dissented vigorously, reading § 1357(g)(10) and § 1373(c) to leave state inquiries about immigration status untouched.

Common questions

What did the proposed bill actually require?

It did three main things. (1) Section 3 amended Tenn. Code Ann. § 7-68-103 to provide that the state, an officer, or a local governmental entity "shall not limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law." (2) Section 4 gave any eligible voter "who believes" the duty had been violated a private suit in chancery court, with mandamus, injunction, contempt, and $500 to $5,000 civil penalties as remedies. (3) Section 8 directed officers to request federal verification of immigration status when they had reasonable suspicion that a person lawfully stopped or detained was unlawfully present, with permission to securely transport verified-unlawful aliens to a federal facility.

Why is suing the Governor under this bill a separation-of-powers problem?

Because Tennessee Supreme Court precedent treats the Governor as exclusively an executive officer not subject to judicial mandate. Turnpike Co. v. Brown (1875) said it explicitly: "The Governor of the state constitutes one of the co-ordinate departments of the government, and he cannot be compelled by mandamus to perform any act which devolves upon him as Governor." Letting a private voter sue the Governor to force "full" enforcement of federal immigration law would put the judiciary in the position of superintending the Governor's exercise of executive discretion, which the AG read as unconstitutional under Tenn. Const. art. II, §§ 1, 2.

Could suits at least proceed against lower officials like the highway patrol commissioner or county sheriffs?

The AG thought it unlikely they would succeed. Mandamus only compels ministerial duties. "Full" immigration enforcement involves prosecutorial-style judgment about how to allocate resources, what cases to pursue, what stops to make, all things courts traditionally treat as discretionary. The AG noted that mandamus and injunction are tools for testing the legality of policies an agency has affirmatively adopted, not vehicles for forcing executive inaction to become executive action.

What was the Fourth Amendment problem with Section 8?

The bill required officers to request federal immigration-status verification when they developed reasonable suspicion that a lawfully stopped person was unlawfully present. The AG observed that the verification request itself was not necessarily a Fourth Amendment problem; Muehler v. Mena allows immigration questions during a stop. The problem was duration. If verification could not be completed within the time needed to address the underlying state-law reason for the stop, prolonging the detention to wait for federal response would be an unlawful seizure unless independent reasonable suspicion or probable cause of a separate crime had developed. The federal government had represented that average inquiry times exceeded 80 minutes. That kind of delay during a routine traffic stop would not pass muster.

What about the preemption analysis?

The Ninth Circuit had just (April 11, 2011) upheld an injunction against Arizona's parallel statute on conflict-preemption grounds. That decision was persuasive but not binding in Tennessee. The Ninth Circuit's reasoning, that systematic state immigration enforcement must occur under federal supervision and that mandatory state-law schemes interfere with the federal Attorney General's prosecutorial discretion, would carry weight in a Tennessee federal-court challenge. But Judge Bea's dissent (built on 8 U.S.C. §§ 1357(g)(10) and 1373(c)) offered a competing reading. Further appeals were possible. The AG was unwilling to declare the bill flatly preempted, just "subject to serious challenge."

What about Section 8's transport authority (proposed § 40-7-125)?

The AG flagged this as posing "even more formidable preemption concerns." The provision would let Tennessee officers "securely transport" verified-unlawful aliens to federal facilities, with the receiving federal agency's concurrence required only for out-of-state transfers. Read as written, that could let Tennessee officers show up unannounced at federal facilities, in tension with 8 U.S.C. § 1357(g)(10)'s cooperation framework. The AG noted the provision was permissive ("may securely transport") rather than mandatory, and that the bill contained a construction clause directing consistency with federal law, which softened a facial preemption challenge somewhat under United States v. Salerno. But the AG called the preemption question on this section "a serious one."

Does the AG's opinion mean the bill was definitely unconstitutional?

No. The opinion identified provisions that were "likely" or "could be" found unconstitutional, and provisions "subject to serious challenge." The AG was forthright that the preemption question depended on case law that was unsettled, that the Ninth Circuit decision was not binding, and that the Tennessee Supreme Court had not previously weighed in on private suits to compel immigration enforcement.

Citations

• Tenn. Const. art. II, §§ 1, 2; art. III, §§ 1, 2, 10; art. VII, § 1; art. I, § 7
• Tenn. Code Ann. §§ 7-68-102, 7-68-103, 7-68-104, 40-7-103(a), 40-3-2003
• U.S. Const. amend. IV; art. VI, cl. 2
• 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)-(C), 1252c(a), 1357(g), 1373(c)
• Ariz. Rev. Stat. § 11-1051
• Turnpike Co. v. Brown, 67 Tenn. 490, 1875 WL 4641 (Tenn. 1875); State ex rel. Latture v. Frazier, 86 S.W. 319 (Tenn. 1905); Bates v. Taylor, 11 S.W. 266 (Tenn. 1889); State ex rel. Ledbetter v. Duncan, 702 S.W.2d 163 (Tenn. 1985); Underwood v. State, 529 S.W.2d 45 (Tenn. 1975); Richardson v. Young, 125 S.W. 664 (Tenn. 1910)
• State ex rel. Motlow v. Clark, 114 S.W.2d 800 (Tenn. 1938); North British & Mercantile Co. v. Craig, 62 S.W. 155 (Tenn. 1901); State ex rel. Park v. Beasley, 188 S.W.2d 333 (Tenn. 1945); Cherokee Country Club v. City of Knoxville, 152 S.W.3d 466 (Tenn. 2004); Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010)
• State v. Downey, 945 S.W.2d 102 (Tenn. 1997); State v. Binette, 33 S.W.3d 215 (Tenn. 2000); State v. Simpson, 968 S.W.2d 776 (Tenn. 1998); State v. Webb, 2011 WL 486850 (Tenn. Crim. App. 2011)
• Franklin v. Massachusetts, 505 U.S. 788 (1992); Katz v. United States, 389 U.S. 347 (1967); Terry v. Ohio, 392 U.S. 1 (1968); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Florida v. Royer, 460 U.S. 491 (1983); Muehler v. Mena, 544 U.S. 93 (2005)
• United States v. Urrieta, 520 F.3d 569 (6th Cir. 2008); United States v. Arizona, 2011 WL 1346945 (9th Cir. Apr. 11, 2011); Carrasca v. Pomeroy, 313 F.3d 828 (3rd Cir. 2002); United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001)
• DeCanas v. Bica, 424 U.S. 351 (1976); United States v. Salerno, 481 U.S. 739 (1987)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-042.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

May 5, 2011
Opinion No. 11-42
Constitutionality of Proposed "Lawful Immigration Enforcement Act"

QUESTIONS

1. Whether the provisions of SB0770/HB1578 and SB0780/HB1380 (collectively, the "Bill") violate the separation of powers doctrine.

2. Whether the provisions of the Bill violate the protections against unreasonable searches and seizures set forth in the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Tennessee Constitution.

3. Whether the provisions of the Bill are preempted by federal immigration law.

OPINIONS

1. To the extent that Sections 3 and 4 of the Bill attempt to vest the executive authority of constitutionally elected officers in coordinate branches of government, those provisions would likely be found unconstitutional under the separation of powers doctrine.

2. To the extent that Section 8 of the Bill requires or authorizes a law enforcement officer to prolong the detention of a suspect based on mere suspicion of "unlawful presence" in the United States, such detention could amount to an unlawful seizure in violation of the federal and state constitutions.

3. Section 8 of the Bill is, in light of recent federal court decisions, subject to serious challenge on grounds of federal conflict preemption. These recent decisions, however, were not unanimous, are not binding on courts in Tennessee and are subject to further appeal.

ANALYSIS

The proposed "Lawful Immigration Enforcement Act" is set forth in identical bills, SB0770/HB1578 and SB0780/HB1380, presently pending before the General Assembly. Among other things, the Bill would prohibit state and local officials from limiting the enforcement of federal immigration laws to "less than the full extent permitted by federal law." (Section 3(b).) Eligible voters who believe that officials have failed in this duty may file suit in an appropriate chancery court. (Section 4(a).) The chancellors are empowered to compel enforcement of the immigration laws, issue contempt orders, and impose civil penalties of $500 to $5,000. (Section 4(c).)

Section 8 of the Bill requires law enforcement officers to request verification of a person's immigration status from federal authorities when the officers develop reasonable suspicion that the person "is unlawfully present in the United States" during the course of an otherwise lawful stop or detention for violation of state or local law. Where officers verify that a person's presence is unlawful, they "may" securely transport the alien to a federal facility. (Section 8.) The Bill contains a severability provision and provides that it is to be construed in a manner consistent with federal laws regulating immigration. (Sections 14, 16.)

These provisions are susceptible to challenge on several state and federal constitutional grounds.

I. Sections 3 and 4 of the Bill Would Likely Be Found To Violate the Constitutional Principle of Separation of Powers.

Tenn. Code Ann. § 7-68-103 presently restrains local governmental entities and officials (which are defined in the preceding section) from taking actions that would interfere with their ability to comply "with applicable federal law pertaining to persons who reside within the state illegally." Tenn. Code Ann. § 7-68-103(a) & (b). The Bill proposes amendments to these provisions. Although this portion of the Code is nominally devoted to local government functions, the Bill would include certain state officials and agencies within its compass. In particular, the Bill would replace the current section 7-68-103(b), in part, with the following:

(b) The state, an official or a local governmental entity shall not limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law.

(Section 3(b).) The Bill defines "State" as "an officer or agency that carries out state functions and programs." (Section 2.) "Officer" means "an elected or appointed official in the executive branch of state government." (Id.)

Section 4 of the Bill goes on to replace the current Tenn. Code Ann. § 7-68-104 with provisions that authorize an eligible voter "who believes" that the state or a local governmental entity or official "has violated § 7-68-103" to institute a suit in chancery court. (Section 4(a).) Provided that the complainant proves a violation (Section 4(b)), the court "shall" either mandate compliance with section 7-68-103 or enjoin its violation. (Section 4(c).) As previously described, Section 4 endows the chancery courts with significant power to levy sanctions against local governmental entities, officials, and the state in the event of noncompliance with their orders. (Section 4(d).)

At the outset, we note that the language of the proposed Tenn. Code Ann. § 7-68-103(b) is complex. Although the provision is couched in negative terms, both the ordinary meaning of its words and the remedies supplied suggest an intent to create positive duties of enforcement. The provision contemplates "enforcement of federal immigration laws" to their "full extent"; relying on the ordinary meaning of "limit" as "to curtail or reduce in quantity or extent," litigants could fairly argue that any failure to enforce in particular circumstances would amount to a "limitation" in violation of the subsection. See Webster's Ninth New Collegiate Dictionary 693 (1991); Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010). This reading is fortified by the provision of the remedy of mandamus in the proposed Tenn. Code Ann. § 7-68-104(c). The writ of mandamus generally presupposes an official duty to act. See State ex rel. Ledbetter v. Duncan, 702 S.W.2d 163, 165 (Tenn. 1985).

Construed as creating positive duties of enforcement, the proposed Tenn. Code Ann. § 7-68-103(b) would have broad reach as to both the official conduct to be regulated and the officers who could be sued. Full enforcement of the immigration laws naturally would entail making arrests of aliens unlawfully present in the United States where authorized by federal law and otherwise permitted by state and local law. See 8 U.S.C. § 1252c(a); id. § 1344(c); Tenn. Code Ann. § 40-7-103(a). Notably, federal law authorizes state and local officers to perform functions relating to the "investigation, apprehension, or detention of aliens" by agreement with the United States Attorney General, and "otherwise to cooperate" with him "in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." 8 U.S.C. § 1357(g)(1) & (10). In view of the wide range of enforcement opportunities contemplated by federal law, an affirmative duty of "full" enforcement could subject a broad swath of official decisionmaking to judicial scrutiny.

Relatedly, the private right of action created by the proposed Tenn. Code Ann. § 7-68-104 would expose a number of officers and agencies in the executive branch to suit. By its terms, the Bill would authorize suit against the governor. The governor is an elected official, invested with the supreme executive power of the state, among whose duties is to "take care that the laws be faithfully executed." Tenn. Const. art. III, §§ 1, 2, 10. The enforcement decisions of the highway patrol and its overseer, the department of safety, also would be subject to review in chancery court. See Tenn. Code Ann. § 40-3-2003. At the local level, members of governing bodies, boards, commissions, committees, and heads of department of counties and municipalities could be compelled or enjoined. See Tenn. Code Ann. § 7-68-102 (defining "official"). Certain of these officials, such as county executives and sheriffs, potentially are officers of constitutional standing. See Tenn. Const. art. VII, § 1.

Mandamus and injunctive remedies directed to the executive branch, and fashioned at the instance of an eligible voter "who believes" that the executive has failed fully to enforce the law (Section 4), raise significant separation of powers concerns. The Tennessee Constitution, Article II, § 1, states that "[t]he powers of the government shall be divided into three distinct departments: the Legislative, Executive, and Judicial," and by Article II, § 2, "[n]o person or persons belonging to one of these departments shall exercise any of the power properly belonging to either of the others, except in the cases herein directed or permitted." As a general matter, the legislative power is to make, order, and repeal laws; the executive power is to administer and enforce laws; and the judicial power is to interpret and apply laws. See Underwood v. State, 529 S.W.2d 45, 47 (Tenn. 1975); Richardson v. Young, 125 S.W. 664, 668 (Tenn. 1910). Pursuant to the separation of powers doctrine, we are of the opinion that Tennessee courts would lack judicial authority to consider any lawsuit against the governor brought pursuant to the Bill.

The Tennessee Supreme Court has repeatedly declined to entertain common-law suits for mandamus against the governor on separation of powers grounds. In the 1875 case of Turnpike Co. v. Brown, the Court held:

As to purely executive or political functions devolving upon the chief executive officer of a State, or as to duties necessarily involving the exercise of official judgment and discretion, we think it may be safely assumed that mandamus will not lie. This necessarily results from the nature of a government having three independent departments, executive, legislative, and judicial. Such is the doctrine well settled by authority.

Turnpike Co., 67 Tenn. 490, 1875 WL 4641, at *1 (Tenn. 1875). In a later suit seeking to compel the governor to declare the winner of an election, the Court simply declared:

The Governor of the state constitutes one of the co-ordinate departments of the government, and he cannot be compelled by mandamus to perform any act which devolves upon him as Governor. He is not subject to the mandate of any court. No court can coerce him. No court can imprison him for failing to perform any act, or to obey any mandate of any court.

State ex rel. Latture v. Frazier, 86 S.W. 319, 320 (Tenn. 1905).

Significantly, although the United States Supreme Court has left open the question whether the president might be subject to a judicial injunction requiring the performance of a purely "ministerial" duty, see Franklin v. Massachusetts, 505 U.S. 788, 802 (1992), Tennessee law appears to embrace no such distinction as it would pertain to the governor. Rather, the remedy available against the governor is the political one of impeachment. See Bates v. Taylor, 11 S.W. 266, 268 (Tenn. 1889); Turnpike Co., 1875 WL 4641, at *2. In light of these decisions, we think it unlikely that the governor will be held to be amenable to suits for mandamus or injunctive relief as contemplated by the Bill.

State commissioners and local officials, by contrast, can be subject to mandatory relief ordered by the courts. See State ex rel. Motlow v. Clark, 114 S.W.2d 800, 803 (Tenn. 1938); North British & Mercantile Co. v. Craig, 62 S.W. 155, 159 (Tenn. 1901). The same basic separation of powers concern that counsels in favor of gubernatorial immunity, that the judiciary not superintend over the exercise of executive discretion, still obtains in such proceedings. For an official act to be enforced by a writ of mandamus, the act must be purely "ministerial." See Motlow, 114 S.W.2d at 802-803. "Nothing is better settled with respect to the law governing mandamus than that the writ is never granted to control or coerce the exercise of discretionary power on the part of a board or officer." State ex rel. Park v. Beasley, 188 S.W.2d 333, 335 (Tenn. 1945). Although the proposed Tenn. Code Ann. § 7-68-103(b) apparently creates positive duties of enforcement and evidently contemplates that enforcement of the federal immigration laws to their "full extent" be, in a sense, non-discretionary, it is difficult to characterize such duties as being ministerial. Consequently, many categories of claims that private litigants might raise under the auspices of Section 4 of the Bill are apt to be viewed as non-justiciable on the remedies provided. Mandamus and injunction are suitable vehicles for testing the legality of policies that agencies or officials adopt or affirmatively implement. See Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 479 (Tenn. 2004). As tools for challenging executive inaction, even at the local level, these remedies have the potential to raise separation of powers concerns.

II. Prolonged Detention Based on Mere Suspicion of "Unlawful Presence" in the United States Could Be Construed as an Unconstitutional Seizure.

Section 8 of the Bill would add the following two sections to Title 40, Chapter 7, Part 1 of the Code:

40-7-124.

(a) Except as otherwise provided in subsection (b), when any law enforcement officer acting in the enforcement of any state law or local ordinance makes a lawful stop or detention of a person for a violation of a state law or local ordinance, and the officer has reasonable suspicion to believe that the person stopped or detained is unlawfully present in the United States, the officer shall request verification of the immigration status of such person from federal immigration authorities, pursuant to 8 U.S.C. § 1373(c).

(b) A law enforcement officer is not required to request verification of immigration status pursuant to subsection (a) if the officer reports to the law enforcement agency that the attempt would hinder or obstruct a criminal investigation or the treatment of a medical emergency.

(c) A person subject to verification of immigration status pursuant to subsection (a) is presumed to be lawfully present in the United States if the person provides to the law enforcement officer any of the following forms of identification:

(1) A valid Tennessee driver license;
(2) A valid Tennessee photo identification card;
(3) A valid tribal enrollment card or other form of tribal identification issued by a federally recognized Indian tribe that bears a photographic image of the holder; or
(4) Any valid United States federal, state or local government issued identification, if the entity that issued such identification requires proof of legal presence in the United States before issuance that bears a photographic image of the holder.

40-7-125.

Notwithstanding any other law to the contrary, a law enforcement agency or law enforcement officer may securely transport an alien whom the agency has verified is unlawfully present in the United States, and who is in the agency's custody, to a federal facility in this state or, with the concurrence of the receiving federal agency, to any other point of transfer into federal custody that is outside this state.

The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures, and "article 1, section 7 [of the Tennessee Constitution] is identical in intent and purpose with the Fourth Amendment." State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997). Warrantless searches are presumptively unreasonable, subject to a few specifically established and well-delineated exceptions. See Katz v. United States, 389 U.S. 347, 357 (1967). One such exception to the warrant requirement exists when a police officer conducts an investigatory stop based on a reasonable suspicion that a criminal offense has been or is about to be committed. Terry v. Ohio, 392 U.S. 1, 21 (1968); State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

When a stop is initiated based on probable cause or reasonable suspicion, a resulting investigation is reviewed under the framework established in Terry v. Ohio. See United States v. Brignoni-Ponce, 422 U.S. 873 (1975). Such investigations require that an officer's actions be "reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20. The detention "must be temporary and last no longer than necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500 (1983). Moreover, the officer should employ the least intrusive means reasonably available to investigate his or her suspicions in a short period of time. Royer, 460 U.S. at 500. "The proper inquiry is whether during the detention, the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly." State v. Simpson, 968 S.W.2d 776, 783 (Tenn. 1998). The Tennessee Court of Criminal Appeals has stated that "requests for driver's licenses and vehicle registration documents, inquiries concerning travel plans and vehicle ownership, computer checks, and the issuance of citations are investigative methods or activities consistent with the lawful scope of any traffic stop." State v. Webb, No. E2009-02135-CCA-R3-CD, 2011 WL 486850, at *8 (Tenn. Crim. App. Feb. 11, 2011); see also Muehler v. Mena, 544 U.S. 93, 101 (2005) (holding that officers did not need reasonable suspicion to ask detainee for name, date and place of birth, or immigration status where questioning did not prolong otherwise lawful detention).

Unlawful presence in the United States is not a crime. The Bill does not make it one, and it is not, standing alone, a federal offense, although it may make an alien removable. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)-(C). In United States v. Urrieta, a case arising from a routine traffic stop in Tennessee, the United States Court of Appeals for the Sixth Circuit cited provisions of the Immigration and Nationality Act for the proposition that "local law enforcement officers cannot enforce completed violations of civil immigration law (i.e., illegal presence) unless specifically authorized to do so by the Attorney General under special conditions that are not applicable in the present case." Urrieta, 520 F.3d 569, 574 (6th Cir. 2008). We note a lack of unanimity with this observation in other jurisdictions. See, e.g., Carrasca v. Pomeroy, 313 F.3d 828, 836-37 (3rd Cir. 2002); but see United States v. Santana-Garcia, 264 F.3d 1188, 1193 (10th Cir. 2001) (noting that state law enforcement officers have general authority to investigate and make arrests for violations of federal immigration laws).

Section 8 of the Bill requires that law enforcement officers having reasonable suspicion to believe that a detainee is unlawfully present in the United States request verification of the immigration status of the detainee from federal authorities. It does not, however, expressly require or authorize officers to prolong a detention in order to do so. As the Urrieta dictum is apt to be viewed as persuasive by courts in this jurisdiction, we are of the view that the Bill should not be read to allow a prolonged detention on the mere basis of suspicion of "unlawful presence" in the United States, and if it were so read or applied it would be vulnerable to a challenge to its constitutionality under the Fourth Amendment and Article I, section 7 of the Tennessee Constitution. Because unlawful presence is itself not a crime, the length of any detention must be determined only by the circumstances that led officers to believe that the suspect had violated "a state law or local ordinance" (Section 8) in the first place. There may be circumstances in which officers, on the basis of identification otherwise lawfully requested, can promptly verify a detainee's immigration status with federal authorities without unconstitutionally prolonging the detention. See, e.g., Urrieta, 520 F.3d at 571. We understand, however, from the record of the litigation in United States v. Arizona that the federal government has represented that immigration status inquiries submitted to the Department of Homeland Security's Law Enforcement Support Center may involve multiple databases, can require search of paper files, and may average over 80 minutes to resolve. Detentions of that duration occurring in the course of such routine police encounters as traffic stops would likely be held to violate the Fourth Amendment and Article I, section 7 of the Tennessee Constitution.

III. Section 8 Is Subject to Challenge Under the Supremacy Clause of the United States Constitution.

The Supremacy Clause of the United States Constitution makes federal law "the supreme law of the land." U.S. Const. art. VI, cl. 2. While holding that the "[p]ower to regulate immigration is unquestionably exclusively a federal power," the United States Supreme Court has recognized that, "standing alone, the fact that aliens are a subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." DeCanas v. Bica, 424 U.S. 351, 354, 355 (1976). Absent an attempt to regulate that subject matter directly, a state law dealing with aliens still can be held preempted where Congress clearly manifests an intent to "occupy the field," or the law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" in enacting the immigration laws. See id. at 357-58 & n.5, 363.

Federal law envisions areas of cooperation in immigration enforcement among the federal government and state and local authorities. Three of these are of particular relevance here. First, state and local law enforcement officials are authorized to arrest aliens unlawfully present in the United States who have previously been convicted of a felony and deported (or left the United States after such conviction), after obtaining confirmation of the person's immigration status and for such time as may be required for federal authorities to take the person into federal custody. 8 U.S.C. § 1252c(a). Second, the United States Attorney General is permitted to enter into agreements whereby appropriately trained and supervised state and local officials can perform immigration officer functions relating to the investigation, apprehension, or detention of aliens in the United States. Id. § 1357(g)(1)-(9). Third, 8 U.S.C. § 1373, a provision cited by the Bill, establishes parameters for information-sharing between state and local officials and federal immigration officials.

In United States v. Arizona, No. 10-16645, 2011 WL 1346945 (9th Cir. Apr. 11, 2011), the United States Court of Appeals for the Ninth Circuit considered a facial preemption challenge to an Arizona law, Ariz. Rev. Stat. § 11-1051(B), that is similar to, but not identical with, the proposed Tenn. Code Ann. § 40-7-124 to be added by Section 8 of the Bill. The court upheld a preliminary injunction as to this portion of the Arizona law. The Ninth Circuit read 8 U.S.C. § 1357(g) and § 1373(c) to mean that systematic state immigration enforcement must occur under federal supervision, and concluded that the Arizona law subverted Congress's intent and was inconsistent with the discretion Congress vested in the Attorney General. The court also pointed to deleterious effects on foreign relations and the prospect of 50 states layering immigration enforcement rules on top of the INA.

In a vigorous dissent, Judge Bea questioned each of the rationales offered by the majority. The dissent stated that, unless state officers are subject to a written agreement described in § 1357(g)(1)-(9), state officers are independently authorized by Congressional statute to communicate with the Attorney General regarding the immigration status of any individual under § 1357(g)(10)(A) and § 1373(c).

In light of the Ninth Circuit's decision in U.S. v. Arizona, the proposed Tenn. Code Ann. § 40-7-124 is subject to challenge on grounds of federal conflict preemption. However, the opinion may be subject to further review by the Ninth Circuit sitting en banc or by the United States Supreme Court. Furthermore, the U.S. v. Arizona decision is not binding on courts in this jurisdiction, and the reasoning of the dissent potentially could be held to have merit by federal courts here.

The proposed Tenn. Code Ann. § 40-7-125, the Arizona analogue of which the U.S. v. Arizona court did not reach, poses even more formidable preemption concerns. This section would provide that a law enforcement agency or officer "may securely transport an alien whom the agency has verified is unlawfully present in the United States, and who is in the agency's custody, to a federal facility in this state or, with the concurrence of the receiving federal agency, to any other point of transfer into federal custody that is outside this state." "Secure transport" is itself a detention and that detention is carried out with an eye toward the alien's removal. Consequently, this provision falls squarely within the ambit of 8 U.S.C. § 1357(g)(10), which envisions such actions being taken in "cooperat[ion] with the Attorney General." The proposed Tenn. Code Ann. § 40-7-125 might be construed to allow officers to securely transport unlawfully present aliens without any cooperation, since the federal authorities' "concurrence" is mentioned only in connection with transports to out-of-state facilities. Such a rendering would stand in obvious tension with § 1357(g)(10). Nevertheless, it may be possible to resist a facial preemption challenge to the provision on the ground that a "set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). The proposed Tenn. Code Ann. § 40-7-125 is permissive, an officer "may" securely transport, rather than mandatory, and the Bill generally provides that it is to be construed "in a manner consistent with federal laws regulating immigration." So long as officers can implement the provision by acting with the assent of the Attorney General or his designees either by agreement, see 8 U.S.C. § 1357(g)(1), or by less formal means, see id. § 1357(g)(10), legitimate arguments can be made in support of the section. We observe, however, that the preemption question raised by this provision is a serious one.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

JAMES E. GAYLORD
Assistant Attorney General

Requested by:
The Honorable Mike Stewart
State Representative
24 Legislative Plaza
Nashville, TN 37243-0152