Free Markets, Free People

"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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22 Responses to "Legal nullification" likely AZ immigration law case outcome

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

     
    I’ve been saying that since this started.  I also think every state that is affected by illegal immigration should join in the suit.
    There are a lot of U.S. citizens in prison who wish the Feds enforced marijuana possession and use laws the same way they do immigration laws.
    They sure seem to have a different mind set when it comes to enforcing  tax laws don’t they?

  • 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?

    Well, yeah…pre-Obamic Banana Republic.
    I have several impressions from this post–
    I have not followed the briefing and argument in the Arizona Federal court, but I wonder about Jacobson’s analysis respecting the punitive components of the law.  Should this court hold those are invalid, I would like to see the reasoning.  Normally, states are given very broad leeway in exercising their plenary police powers.  The bar for messing with that doctrine is very high.
     
    Second, and playing devil’s advocate for a moment, many laws are arbitrarily enforced or not.  It is one great indicator that we have FAR too many laws that our law enforcement types have to prioritize which ones into which resources will be expended.  This breeds contempt for the law in general.
     
    In some respects, this is an old story; the DoJ announced…then walked back…that it would not accept illegals handed to them by the Arizona LEOs some months ago.
     
    This is a politically STUPID thing to do…should the Obami decide to actually do it…but it is precisely what they did with the Gulf moratorium.  They ignored the court, and simply continued until Salazar came up with his new ban.
     
    This is an outlaw regime, and they will continue until the courts, the Congress, or the people put an end to them.

  • It might be fun for the state authorities to apprehend a group of illegals and invite a few media folks to come along as they physically deliver the  illegals to the feds. A few days of this “Gov’t. refuses to enforce immigration law, releases illegals , film at eleven” catch-and-release bs appearing on television screens might be interesting.

      • Nice point.  We know from Journolist the ease by which the left will through the term “racist” around.  It is clear the strategy is to try to tie border enforcement to white supremacy.  That might be hard since so many Americans support border enforcement.  Hopefully, that will backfire.
         
        I also agree that Arizona should keep a count of who they attempt to turn over to the federal government and publish a weekly list and accounting of the result.  This administration can be embarrassed.

        • As I said before, the era that the accusation of racism carrying automatic guilty until proven innocent needs to end.  Its now simply a tool to get what you want when race really isn’t the issue.  And is ending because of that abuse.  Can’t happen fast enough though.

        • Rick CairdI also agree that Arizona should keep a count of who they attempt to turn over to the federal government and publish a weekly list and accounting of the result.  This administration can be embarrassed.

          How?  If the list is never published / publicized by MiniTru, it will make no difference.  Essentially, MiniTru will vaporize the illegals… until there’s another push for amnesty, at which time they’ll trot out Hector, Maria and their five children to sing a sob story about how hard they work, how they love America, how their kids were born here, why it’s wrong to make them go back to Mexico (or wherever), etc.

          • That is where the new media comes in, doc.
            LOTS of blogs will publish this information.  And it WILL get to the people.

          • Ragspierre[I]t WILL get to the people.

            Will it?  My brother doesn’t read blogs but otherwise keeps himself pretty well informed about politics.  I casually asked him yesterday what he thought of Journolist.

            He’d never heard of it.  Ditto my wife.

            MiniTru’s monopoly on the news is broken, but it still dominates: it can determine what MOST people know about what happens.  Come to think of it, that was what Journolist was all about.

          • I don’t disagree with anything you said, but your anecdote illustrates the point, I think.
            We…individually…have a duty to both be informed and to educate our friends, family and neighbors.  That is a big part of the activism we all have to embrace, IMNHO.

  • refusing to take custody of

    I can see them now … handcuffed to the flagpole at the federal building.

  • OK, so the states own penalties get thrown out. Even though they are willing to foot the expense of incarcerating these criminals, they will be precluded. But, they will still be able to hold the subjects until the feds come get them. And if the feds don’t come, well the state can just keep on waiting, all the while holding the subjects, for, oh I don’t know, how about for the length of the thrown out state sanctions. After that period of time, the state can come to the conclusion that the fed isn’t coming, and can release the alien.

  • So AZ can fly a plane load of illegals to DC every day and try to turn them over to the Immigration dept and if they dont take them just release them in DC.  Call a press conference and everything.   After doing this day after day for a month or so I think that someone may get the message.  Of course Obama let the oil spill go on for 3 months so I could be wrong.

    Another thing is to just take them to the border where there is a mexican town on one side and desert on the the US side and let them go there.  

  • Just one point:

    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.

    The Arizona law makes the checking OPTIONAL for the officer; the California law on which the AZ law was modeled makes it MANDATORY.

  • Really, this all comes down to Arizona arresting the illegals and then keeping them until they can be transferred to federal jurisdiction.
    If the feds refuse to take jurisdiction, the good folks of Arizona could just give them a bus ticket to DC.
    The People Republics of San Francisco used this idea to clean their streets of the homeless back in the 90’s.

  • Ship em to the nearest available sanctuary city in California.  It’s the humane thing to do.

  • Put them on charter buses to ICE headquarters.    I’m sure Congress will figure something out.  This is, after all, an election year.  If that doesn’t work, let them off at the Capitol Visitor’s Center.  Someone will eventually wake up.

  • Always try to screw our hard working people.