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.
I have to wonder if it isn’t being refelcted among the Dutch right now. In the Netherlands, the VVD, as the Liberal party is known, has come from so far down in the polls they couldn’t see any of their competitors to leading in the polls for the next parliamentary elections.
So, how did they manage that? Well, with an unlikely combination for a liberal party – austerity and immigration. On the austerity side:
As in other European countries, the need for painful spending cuts has risen to the top of the political agenda, and with it the fortunes of the VVD. “On June 9 we’ll find out who the voters think is the best party to guide the Netherlands through the crisis, to put matters in order, to give our beautiful country new prospects so it can emerge stronger from this crisis,” Mr Rutte, dressed in Diesel jeans and a blue shirt, tells a small crowd in one of the town’s squares. “We’re being honest and saying everyone is going to feel this.”
Of course, theonly lingering doubt about all this is while they may agree with the concept, and even vote for it, will the Dutch really put up with the cuts?
The VVD certainly hopes so and is betting it will give them some electoral longevity assuming sucess.
On the immigration front, it is fairly straight forward – the Dutch are looking for a hard line to be taken there. More control, less immigrants, and certainly the expulsion of any illegal immigrants.
Of course, I’m sure by now you’ve figured out why I brought this up. Mid-terms here in November, presidential election in 2012.
Where do you think those two issues will play here and how will they influence votes?
Your learned speculation and wild-ass guesses are welcomed.
The Massachusetts Senate delivered another message yesterday about illegal immigration and demonstrates, again, why I think it is the Democrats who are in hot water on this issue, not the GOP:
The measure, which passed on a 28-10 vote as an amendment to the budget, would bar the state from doing business with any company found to break federal laws barring illegal immigrant hiring. It would also toughen penalties for creating or using fake identification documents, and explicitly deny in-state college tuition for illegal immigrants.
The amendment would also require the state’s public health insurance program to verify residency through the Department of Homeland Security, and would require the state to give legal residents priority for subsidized housing.
Why, you wonder, would deeply blue MA pass anything like that? Why would Democrats there go along? Here’s why:
Democrats had resisted such a sweeping proposal, but spent last evening negotiating today’s measure, shortly after a new polled showed 84 percent of the liberal-leaning state’s voters supported tough immigration rules barring state services to illegal immigrants.
Taxpayers are dead freakin’ tired of paying for services for people who have entered the country illegally. They’re dead freakin’ tired of watch the laws of the land being ignored. And they’re especially dead freakin’ tired of those doing the ignoring.
You’re going to see more and more states do this until they force the Federal government and the Obama administration into doing its job.
Yesterday I mentioned the deployment of 1,200 National Guard troops to our southern border and Mexico’s reaction to it – i.e. they hoped it was for controlling the (mythical) flow of guns across the border and controlling crime, but not to enforce immigration laws.
I said I just couldn’t wait to see our reply. Well, unsurprisingly, it conforms with Mexico’s desire on the subject:
US National Guard troops being sent to the Mexican border will be used to stem the flow of guns and drugs across the frontier and not to enforce US immigration laws, the State Department said Wednesday.
The clarification came after the Mexican government urged Washington not to use the additional troops to go after illegal immigrants.
President Barack Obama on Tuesday authorized the deployment of up to 1,200 additional troops to border areas but State Department spokesman Philip Crowley told reporters, “It’s not about immigration.”
He said the move was “fully consistent with our efforts to do our part to stem, you know, violence, to interdict the flow of dangerous people and dangerous goods — drugs, guns, people.”
This is absurd. It is malfeasance. It is again a blatant refusal to do what is necessary to secure the border, a task that is solely the responsibility of the Federal government. This is a token move to tamp down criticism. Pure politics and given in conformance with the desires of a foreign government who prefers to see our immigration laws ignored or unenforced. And this all the while criticizing Arizona for trying to do the job the Obama administration refuses to do.
I see a number of pundits and commenters saying immigration is going to hurt the GOP at the ballot box. I’m not reading it that way at all. Americans have no problem with immigration per se. But as poll after poll tell us they have a huge problem with illegal immigration and want it stopped.
This is not going to sit well with that majority and it is not going to reflect well on either Obama or the Democrats.
When it comes to illegal immigration, I continue to wonder who is in charge of our policy.
Yesterday, under increased pressure to enforce the federal immigration laws of the United States, President Obama ordered 1,200 National Guard troops to the border.
Then, as now, the troop deployment was fueled by heightened concerns about lawlessness — then it was illegal immigration, now it is drug traffickers — as well as political maneuvering in Washington to lay the groundwork for an effort to change immigration policy. But the issue remains bitterly contentious, with increasing pressure on Obama and lawmakers from both Latino supporters and conservative activists
Of course, this comes after giving Mexico’s hypocrite-in-chief, Filepe Calderon, a platform to defame and denigrate Arizona’s effort to stop the flood of predominantly Mexican illegals from pouring over the border.
In the wake of Obama’s decision concerning the deployment of the troops (which I’m sure, given Obama’s earlier joint comments on the subject, came as a surprise to Calderon), the Mexican Embassy in Washington DC issued a statement which said, in part:
Regarding the Administration’s decision to send 1,200 National Guard servicemen to the US Southern border, the Government of Mexico trusts that this decision will help to channel additional US resources to enhance efforts to prevent the illegal flows of weapons and bulk cash into Mexico, which provide organized crime with its firepower and its ability to corrupt.
Additionally, the Government of Mexico expects that National Guard personnel will strengthen US operations in the fight against transnational organized crime that operates on both sides of our common border and that it will not, in accordance to its legal obligations, conduct activities directly linked to the enforcement of immigration laws.
Because, you know, if it is aimed a the enforcement of immigration laws, and you are successful in securing the border and enforcing your laws, Mexico might actually have to do something to address the problems that see our citizens seeking work in another country.
Can’t wait to hear our reply, can you?
Do you know John Morton? He’s the chief of the US Immigration and Customs Enforcement. Note the last word in his agency’s name. Enforcement.
That’s his job. Yet he says:
Echoing comments by President Barack Obama and others in the administration, Morton said that Arizona’s new law targeting illegal immigration is not “good government.” The law makes it a crime to be in the state illegally and requires police to check suspects for immigration paperwork.
Morton said his agency will not necessarily process illegal immigrants referred to them by Arizona officials. The best way to reduce illegal immigration is through a comprehensive federal approach, not a patchwork of state laws, he said.
“I don’t think the Arizona law, or laws like it, are the solution,” Morton said.
It really doesn’t matter what you think, does it Mr. Morton – your job is to enforce the federal laws against illegal immigration. And if a state sends you “illegal immigrants” which it has rounded up, I don’t believe you should have or do have any other choice but to “process” them.