Arizona law SB-1070
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.
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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”.
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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.
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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.
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Anyone who reads this blog for more than a day or so is probably familiar with the fact that I’m not a big fan of hypocrisy. Especially when it presents itself as self-righteously as it did yesterday in the words of Mexican President Calderon. Specifically, this paragraph:
In Mexico, we are and will continue being respectful of the internal policies of the United States and its legitimate right to establish in accordance to its Constitution whatever laws it approves. But we will retain our firm rejection to criminalize migration so that people that work and provide things to this nation will be treated as criminals. And we oppose firmly the S.B. 1070 Arizona law given in fair principles that are partial and discriminatory.
Take sentence one – a country that allows the wholesale illegal immigration of a large part of its citizenship into the United States is respectful of nothing concerning the internal policies of the US or it’s “legitimate right” to establish its laws.
Second sentence: pure bovine feces. It’s a strawman – no law that I know of, either federal or state “criminalizes migration”. It make it a crime to try to immigrate ILLEGALLY. I.e. not go through the proper procedures as outlined in those law Calderon claims to so highly “respect”.
Last sentence – SB 1070 does not introduce “partiality’ or “discrimination”. It enforces federal laws already on the record (for instance, federal law requires all legal immigrants to carry their immigration identification paperwork with them at all times).
The real hypocrisy, however, comes from Mexico’s own immigration laws. If Arizona’s SB 1070 is “draconian” come up with a good description of these:
• Mexico welcomes only foreigners who will be useful to Mexican society:
- Foreigners are admitted into Mexico “according to their possibilities of contributing to national progress.” (Article 32)
- Immigration officials must “ensure” that “immigrants will be useful elements for the country and that they have the necessary funds for their sustenance” and for their dependents. (Article 34)
- Foreigners may be barred from the country if their presence upsets “the equilibrium of the national demographics,” when foreigners are deemed detrimental to “economic or national interests,” when they do not behave like good citizens in their own country, when they have broken Mexican laws, and when “they are not found to be physically or mentally healthy.” (Article 37)
- The Secretary of Governance may “suspend or prohibit the admission of foreigners when he determines it to be in the national interest.” (Article 38)
• Mexican authorities must keep track of every single person in the country:
- Federal, local and municipal police must cooperate with federal immigration authorities upon request, i.e., to assist in the arrests of illegal immigrants. (Article 73)
- A National Population Registry keeps track of “every single individual who comprises the population of the country,” and verifies each individual’s identity. (Articles 85 and 86)
- A national Catalog of Foreigners tracks foreign tourists and immigrants (Article 87), and assigns each individual with a unique tracking number (Article 91).
• Foreigners with fake papers, or who enter the country under false pretenses, may be imprisoned:
- Foreigners with fake immigration papers may be fined or imprisoned. (Article 116)
- Foreigners who sign government documents “with a signature that is false or different from that which he normally uses” are subject to fine and imprisonment. (Article 116)
• Foreigners who fail to obey the rules will be fined, deported, and/or imprisoned as felons:
- Foreigners who fail to obey a deportation order are to be punished. (Article 117)
- Foreigners who are deported from Mexico and attempt to re-enter the country without authorization can be imprisoned for up to 10 years. (Article 118)
- Foreigners who violate the terms of their visa may be sentenced to up to six years in prison (Articles 119, 120 and 121). Foreigners who misrepresent the terms of their visa while in Mexico — such as working with out a permit — can also be imprisoned.
• Under Mexican law, illegal immigration is a felony. The General Law on Population says,
- “A penalty of up to two years in prison and a fine of three hundred to five thousand pesos will be imposed on the foreigner who enters the country illegally.” (Article 123)
- Foreigners with legal immigration problems may be deported from Mexico instead of being imprisoned. (Article 125)
- Foreigners who “attempt against national sovereignty or security” will be deported. (Article 126)
There are scads more you can read through that make what Calderon is squealing about seem like child’s play.
Calderon and Mexico are part of the problem, not part of the solution. And feting this crew who come here and mischaracterized immigration in general and what is going on in Arizona while doing nothing to stop the problem is simply nonsense. Until they begin to be part of the solution, they don’t deserve the time of day, much less a state dinner. Until they step up to stem the tide of ILLEGALS we owe them nothing. And the irony of having a immigration code of their own that is much more draconian than anything we have shouldn’t be lost in this either. They don’t put up with what they demand we put up with and we ought to call them on that.
But we won’t. Instead this administration will call out Arizona which has only attempted to enforce the laws the federal government refuses to do all the while Obama smiles and fetes the source of the problem and refuses to demand Mexico do anything on its end.
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When the office of President was created in 1787, its primary function was to be the face and voice of the nation to the world. Above all else, the executive branch represents Americans in the diplomatic and, when necessary, martial contexts to friend and foe alike. Given the foregoing, what exactly are we to make of Obama aligning himself with Mexican President Felipe Calderon against citizens of the United States?
Mexican President Felipe Calderón, arriving at the White House for a state visit, wasted no time today criticizing Arizona’s new immigration law as unfair and discriminatory.
The law makes it illegal to be in the United States without permission, and requires police to demand documentation from anyone suspected of doing so [ed. - Wrong, on both assertions]. Such a law, Calderón asserted at a Rose Garden news conference with President Barack Obama, will subject Mexican citizens to discrimination and was created so that people who “work and provide things to this nation will be treated as criminals.”
Obama also condemned the law, and left open the possibility he’ll try to block it.
Leaving aside the editorializing about Arizona’s law in this “reporting,” it’s a bit puzzling as to what Calderon is even complaining about. First of all, his country has far more draconian laws regarding illegal immigration than the U.S. Secondly, there is a real question regarding whom he thinks he represents. As Allahpundit noted:
I’m not sure which Mexicans Calderon’s presuming to speak for. If he means Mexican citizens who are in the country legally, fair enough. If he means illegals, i.e. if he’s actually complaining on behalf of people who aren’t even supposed to be here, his balls are even brassier than I thought. And if he means Americans of Mexican descent, he’s belittling Obama’s own authority. Last time I checked, if anyone’s going to do any diplomatic conveying on behalf of U.S. citizens, it’s the president of the United States.
What’s really sad is that, of the two heads of state, Calderon is the only one actually looking for the interests of his own people. For his part, Obama stood firmly against his own citizens and with the interests of another country:
President Obama left little doubt Wednesday that his administration will challenge Arizona’s divisive new immigration law, saying the measure “has the potential of being applied in a discriminatory fashion.”
After a private meeting with Mexican President Felipe Calderon in the Oval Office, Obama denounced the state law cracking down on illegal immigration, and he also sent a clear message that a review led by Justice Department lawyers is likely to culminate in legal action.
Obama said that “a fair reading of the language of the statute” suggests those who appear to be illegal immigrants could be “harassed or arrested.”
Er, wouldn’t a “fair reading” involve, y’know, actually reading the law? To date, no one in the Obama Administration has bothered to do so, although they have all been quite ready to castigate it anyway.
The truly disturbing thing, however, is the sheer abdication loyalty (not to mention responsibility) on the part of our chief executive, by taking a hostile stance against those whom Obama (nominally) represents, all in support of the interests of the foreign nation most responsible for our border mess in the first place. It’s almost as if Obama thinks he represents the rest of the world in its dealing with Americans.
Perhaps, when Obama finally gets around to reading SB-1070, someone should slip a copy of the Constitution in there as well. He seems to have forgotten about … if he ever cared in the first place.
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