Free Markets, Free People
Apparently that depends on how Justice Kennedy decides. Of the 8 justices on the case (Kagen recused herself) he appears to be the only one whose final stance is unknown. As Lyle Denniston at SCOTUS blog says:
Were Kennedy to vote to uphold the law, despite apparent reservations, the result probably would be a 5-3 win for Arizona. But if he voted to strike down the law, there seemed likely to be only three other votes to go with his, making the vote 4-4 — but Arizona still would win, because such a split vote would summarily affirm a Ninth Circuit Court decision that upheld the state’s worker control law.
However, as he further notes, a split would only apply to that particular case and not more broadly. It would also indicate the probability of any cases that follow it would most likely fail:
Evenly divided results, however, do not set a precedent beyond the individual case, so the result in the future, if all nine Justices took part, might well come out differently: Justice Kagan’s vote could be the swing vote. And other test cases are on the way — including one involving an even broader Arizona anti-immigration law, and a set of alien restrictions adopted by the local government in Hazleton, Pa.
So stay tuned. Worst case for AZ is it gets part of the law affirmed if there’s a split. However it would also mean that the ability for states to address immigration problems would most likely be dead. Supporters have got to hope Kennedy comes down on the side of the right of a state to address the problem that the Federal Government seems unwilling and/or unable to address.
Apparently if you don’t like the law and you’re the Homeland Security Department – you know, the department charged with ensuring your safety – you can just quietly refuse to do your job. Judicial Watch clues us in:
A month after the Department of Homeland Security launched a covert program to dismiss pending deportations there’s been an increase of more than 700% in the number of cases that have been dropped by the government in one of the nation’s busiest immigration court systems.
In August Homeland Security officials quietly began to systematically dismiss the pending removal of illegal immigrants, even when expulsion was virtually guaranteed or the aliens had a criminal record. The move, first reported by Texas’s largest newspaper, stunned the legal profession and baffled immigration attorneys who said it was “absolutely fantastic” for their illegal alien clients.
Instead of enforcing the law, they’ve decided to interpret it as they wish and to modify the criteria for expulsion to whatever they arbitrarily decide.
However, EOIR’s liaison with the American Immigration Lawyers Association, Raed Gonzalez, said he was briefed on the guidelines in August directly by DHS’ deputy chief counsel in Houston and described a broader set of internal criteria.
Government attorneys in Houston were instructed to exercise prosecutorial discretion on a case-by-case basis for illegal immigrants who have lived in the U.S. for at least two years and have no serious criminal history, Gonzalez said.
To qualify for dismissal, defendants also must have no felony record or any misdemeanor convictions involving DWI, sex crimes or domestic violence, he said.
Now before some nimrod who never reads the blog beams in and claims I’m “anti-immigration”, let’s be clear. No, I’m not. But we have a proper and legal way of immigrating into this country and an improper and illegal way of doing so. The government’s job is to enforce the law and its priority should be the protection of the rights of its citizens. Decisions to arbitrarily enforce law or not enforce it at all shouldn’t be within the ability of the government’s enforcement agencies to decide. We have a process for that – it’s called legislation.
As I recall, law enforcement agencies require oaths of their agents to “enforce the law”. Not to “internally” decide to modify them to suit their tastes or a political agenda.
I understand the “system” is broken. But “clearing a backlog” by dismissing cases against law breakers on whatever grounds simply encourages more of the illegal behavior they’ve displayed. If there’s really no risk in flaunting the law, there’s no reason not to engage in the behavior that breaks it.
Obviously the immigration system needs to be overhauled and immigration brought into the 21st century with a speedier and less costly process that better serves all.
But that is a separate issue from the subject of this post. It is dangerous and destructive to have government agencies who have been charged with enforcing the law to be internally deciding what if any of the law they will enforce. It’s just another example of the government not serving the needs of those it is Constitutionally charged with protecting. It has, however, become almost a trademark of this administration.
According to the NYT, Obama’s MTV appearance wasn’t as “light” as those who proposed it hoped it would be and essentially he was on the defensive for most of it.
I didn’t watch, so I can’t say, however if true, it simply validates the overall feeling of frustration and dissatisfaction with the present state of affairs. He was hit with a question of unemployment and DADT. Probably the most interesting, at least to me, was this:
A graduate student, citing Arizona’s immigration law and the opposition to an Islamic center in New York, said race relations in the country seem to have deteriorated since the idealism inspired by Mr. Obama’s election, and he asked, “What happened?” Mr. Obama said racial progress has been fitful throughout history, and “oftentimes misunderstandings and antagonism surfaces most strongly when economic times are tough.”
What has “race” to do with either Arizona’s immigration law or the Ground Zero Mosque? Seriously – if those coming across our border and wanting to build a mosque next to where Islamic extremists killed 3,000 Americans were lily white, would it change the argument?
If they were white Muslims would everyone say, “oh, well, never mind – build your mosque where ever you want”?
If those coming into our country illegally were blond haired and blue eyed, would the prevailing consensus be, “hey, that’s fine, no problem”?
No. It wouldn’t. This is more of the left’s attempt to create the narrative that any opposition to radical Islam or illegal immigration is based in race hatred. Would I guess that’s probably the case for a small minority? Sure. But is it the case for the vast majority?
Consider the questions I’ve asked and whether or not you’re concerned because the majority of those coming across our border are Mexican or because they’re doing so illegally. Or whether your opposition to the GZM is based in race hatred or the inappropriateness of the attempt to build such a structure representing the religion of the zealot killers next to the site of those they killed?
Certainly there is still some work to do in the area of race relations – but it is not at all helpful to try to invent it where it really doesn’t exist. Of course you can’t call your opponents “Nazis”, “brown shirts” or “racists” if you don’t do the groundwork first, can you?
A very interesting sentence in the judge’s injunction against the Arizona immigration law caught my eye yesterday. In her ruling, which voided much of the law, Judge Susan Bolton said:
“Preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely pre-empted by federal law to be enforced,” she said.
Of course the real status quo is federal non-enforcement of immigration laws – thereby driving the state of Arizona and other states to take matters into their own hands.
That’s not the status quo Judge Bolton is talking about, but it is the reality of immigration enforcement in this country.
This obviously isn’t the end of the road for the law, but I’d guess it’s on life support as the appeals process goes forward. Bolton’s ruling is likely to reflect how the other levels of the federal judiciary will rule on the law.
I have to admit to being a bit surprised that she ruled against law enforcement checking immigration status while processing someone for a different reason and left intact the portion of the law making it a crime to stop a vehicle in traffic or block traffic to hire someone off the street. However she did block a provision that barred illegal immigrants from soliciting work in public places.
On the political side of things, AZ’s Democratic Attorney General, a possible candidate for governor, thinks he has a winner:
Terry Goddard, the Arizona attorney general who opposed the law and is a possible Democratic opponent to Ms. Brewer, was quick to condemn her for signing it. “Jan Brewer played politics with immigration, and she lost,” he said in a statement.
Brewer can only hope he keeps saying that until the election, because I’d guess – as much of a hot button as this is in AZ and because of the overwhelming support of the AZ voters – it’s really a loser for Goddard and the Democrats.
Even John McCain and Jon Kyle weighed in on the ruling:
“Instead of wasting taxpayer resources filing a lawsuit against Arizona and complaining that the law would be burdensome,” Mr. McCain said in a joint statement with Senator Jon Kyl, Republican of Arizona, “the Obama administration should have focused its efforts on working with Congress to provide the necessary resources to support the state in its efforts to act where the federal government has failed to take responsibility.”
But of course, the failure of the administration to take responsibility is the ‘status quo’, and it appears, unfortunately, that it will be “preserved”.
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.
Based in the Constitution’s “supremacy law”, the Obama administration will argue that federal law is supreme to state law. In other words, the feds will argue that enforcing immigration laws is a federal responsiblity.
But that’s the rub isn’t it – it may be their responsibility, but they’re not fulfilling that responsibility to anyone’s satisfaction, especially the state of Arizona. Consequently, Arizona has felt the need, based in public safety and budget concerns, to take matters into its own hands.
The preemption doctrine has been established in Supreme Court decisions, and some legal experts have said such a federal argument likely would persuade a judge to declare the law unconstitutional.
But lawyers who helped draft the Arizona legislation have expressed doubt that a preemption argument would prevail.
I’m not sure what those doubting whether the “preemption argument will prevail” mean. Of course it will “prevail” if it is applicable. It has law and precedent behind it. However, given the fact that the federal government has all but abandoned the enforcement of immigration law, and I think Arizona should be able to provide ample evidence of this, I’d suggest the preemption clause won’t be applicable since the laws aren’t being enforced.
In fact, I think Arizona can argue and make a pretty compelling case of federal nonfeasance concerning immigration laws.
In that case, this may very well blow up in the Obama administration’s face, and verify what most Americans already think – the government has no interest in enforcing the immigration laws on the books.
Not exactly the meme you want out there with midterms approaching. Regardless of how this turns out, I’m finding it hard to see a “win” in this for the administration.
Because he has no control over his own country, and it is much easier to shift the blame for his shortcomings and attack Arizona law as a distraction (much like someone else we know all too well):
A drug gang leader says he ordered the killing of a U.S. consulate worker because she gave visas to a rival gang in the border city of Ciudad Juarez, federal police said Friday.
Jesus Ernesto Chavez, whose arrest was announced on Friday, leads a band of hit men for a street gang tied to the Juarez cartel, said Ramon Pequeno, the head of anti-narcotics for the Federal Police.
Pequeno said Chavez ordered the March 13 attack that killed U.S. consulate employee Lesley Enriquez and her husband as they drove in the violent border city, and he said Chavez told police that Enriquez was targeted because she gave visas to a rival gang.
Enriquez’s 7 month old daughter was found alive in the back seat. Of course I’d like to know what a drug gang member was doing getting a visa, but I’m sure we’ll never hear anything about that.
Last year, 2,600 people were killed in Juarez, a city of 1.3 million. Just the other day 7 bullets hit the El Paso city hall. Juarez is a virtual anarchy with fights between rival drug gangs and human trafficking gangs common.
It is here Calderon should be focusing his efforts – not worrying about the immigration laws of his neighbor. Isn’t it about time for Obama to travel to Mexico city and address their legislature on what they should be doing to secure their border, lessen the threat to American citizens and enforce the law?
Yeah, that’ll happen.
I’m sure Calderon will tell us its our fault for using drugs and not letting anyone in the country who wants in. And I’m just as sure that our President will agree.
That’s right folks, instead of fixing the problem, the Department of Justice, at the behest of President Obama, has chosen to sue a state trying to protect itself.
And guess who thinks it is a good idea and wants to join in the fun?
Mexico on Tuesday asked a federal court in Arizona to declare the state’s new immigration law unconstitutional, arguing that the country’s own interests and its citizens’ rights are at stake.
Like the “right” to illegally enter another country? When I see Mexico take down its border stations and yell, “come on down” in Spanish, then I might think it has a moral leg to stand on. But in this case, it’s just hypocritical nonsense.
More interesting than even Mexico joining the law suit is the fact that AZ Democrats are livid about the DoJ suit:
Rep. Harry Mitchell (D-Ariz.) on Monday sent a sharply worded letter to President Barack Obama urging him not to sue.
“I believe your administration’s time, efforts and resources would be much better spent securing the border and fixing our broken immigration system,” the two-term congressman wrote in the letter. “Arizonans are tired of the grandstanding, and tired of waiting for help from Washington. … [A] lawsuit won’t solve the problem. It won’t secure the border, and it won’t fix our broken immigration system.”
Heh … change a few words and he could be talking about the effort in the Gulf.
Mitchell isn’t the only Democrat upset with Obama. Facing tight races in AZ this year, a number of Democrats see this as an unnecessary and even foolish effort by the Obama administration.
“Congresswoman [Gabrielle] Giffords wants more federal agents on the Arizona border, not federal lawyers in court arguing with state lawyers about a law that will do nothing to increase public safety in the communities she represents,” C.J. Karamargin, a spokesman for the congresswoman, told The Hill.
Well there’s your bi-partisanship. All in opposition to the administration’s decision to sue AZ.
My favorite quote comes from Democratic Rep. Ann Kilpatrick though:
“I am calling on the president and the attorney general to abandon preparations for a lawsuit against Arizona, and to recommit to finding a national solution to fixing this national problem,” the freshman lawmaker said in a statement released Monday. “The administration should focus on working with Arizona to put together a long-term strategy to secure our borders and reform our immigration policy. … The time for talk is over, and the time for action is here.”
With this president, the “time for talk” is never over. And the “time for action?” Well they haven’t sued yet, have they? Or closed Gitmo. Or pulled out of Iraq. Or ended DADT. Or …
It may soon no longer be cool among Democratic legislators to call those that show up here illegally “undocumented workers”. Polls tell them to say “illegal immigrants”. Because that’s what the vast majority of Americans call them.
And drop the “earned path to citizenship” stuff too. It should be “unacceptable” that 12 million illegals are living here. Government should “require” them to “get right with the law”. That means “Obey our laws, learn our language and pay our taxes” or they’re out of here.
Those are the recommendations of some Democratic operatives that have been studying the issue since the 2007 defeat of comprehensive immigration reform. They’ve done extensive polling and what that has told them is, well, Republicans have the lead on this one.
Here’s the new Democratic pitch:
“This time around, the message starts with a pledge to secure the borders and crack down on employers. It then moves to this: “It is unacceptable to have 12 million people in our country who are outside the system. We must require illegal immigrants to register for legal status, pay their taxes, learn English and pass criminal background checks to remain in the country and work toward citizenship. Those who have a criminal record or refuse to register should be deported.”
Of course the devil is not only in the details but in the implementation. We’ve heard all the happy talk about securing the border before. And yet it remains terribly porous.
I can’t wait to hear these yahoos try to spin this as the plan all along. I can’t wait to hear the reaction of tha part of the Latin community that looked to the Democrats to ease their path. And, of course, I can’t wait to here Mexico’s reaction.