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Daily Archives: July 24, 2010

"Legal nullification" likely AZ immigration law case outcome

William Jacobson over at Le-gal In-sur-rec-tion (a great blog and always a worthwhile read) lays out the probable outcome of the DoJ case against the AZ immigration law:

Based on reports of the hearing before the federal District Court Judge yesterday, it appears that the provision of the Arizona immigration law requiring law enforcement to verify immigration status is likely to survive, while other aspects creating independent state criminal sanctions will not.

This outcome — with the caveat that a Judge’s comments do not necessarily predict the outcome — makes sense legally. There is no interference with the federal administration of the immigration laws if the state, after confirming that a person is here illegally, merely turns the person over to federal authorities.

That means, essentially that the part of the law that will survive is that which requires all law enforcement to check the immigration status of anyone of which have a reasonable suspicion may be here illegally.  And if they’re determined to be here illegally, turn them over to federal authorities.

And that’s where the probable “nullification” may take place –i.e. the nullification of the intent of the AZ law which had at its foundation the apprehension, removal and deportation of illegals found in the state.  As Jacobson says:

While the survival of this aspect of the Arizona immigration law would still outrage opponents, the practical effect would be to allow federal authorities to nullify the state law in practice by refusing to take custody of or prosecute those turned over by state authorities.

Indeed, this is what happens sometimes in Rhode Island, when the State Police notify federal authorities and there are no outstanding warrants on the person.

Willful disregard for the law. 

Isn’t one of the foundational principles of our nation “the rule of law” and not the “rule of men”?  Isn’t such willful disregard counter to that principle?  How does one count on being equal with all other men before the law when the government can arbitrarily decide what it will and won’t enforce?

All questions I’d like to see asked in court of the Department of Justice.  Put them on trial as well.  Make them explain why they feel entitled to ignore some law and rigorously enforce others.

If we don’t like a law, think it is wrong and should be taken off the books, there are several methods on the books to allow that – the courts or Congress (at a federal level) to name two.  But selective non-enforcement – at least in a country that purports to be governed by the “rule of law” – isn’t one of them.  And it drives states, such as AZ, to understandably take matters into their own hands.

It is the DoJ and ICE that should be in the docket – not AZ.

~McQ

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