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Wednesday, July 21, 2010

Discussion of Arizona SB1070 held over from Facebook

*If you're following this discussion from Facebook, welcome.  Normally we talk about fun things like stereo equipment, music and cat litter.  Well, at least I think those are fun topics, and I'm the one doing most of the typing around here.*

Okay, seeing that I have violated my own posting rules on politics and attracted an all-time high number of personal messages, some quite irate,  (this discussion should be on my very quiet blog, it could use the traffic) I'll explain my original point. Of course I am no lawyer. But if only lawyers can understand the laws governing our conduct, we're in bigger trouble than we think, so I'll take a shot at muddling through. Prepare to be confused.

My question was originally a purely legal one, which is why you may have had difficulty discerning my "position," Anne. The Supremacy clause holds that the US Constitution is the supreme law of the land, and trumps all state law (this includes Federal regulations, but unless you want to read streams of profanity, let's not get me started on that). So, given that under 8 U.S.C., it is the Federal government which regulates naturalization and immigration (if things were left to states, when the Sabres lost to Ottawa in the playoffs, Canadians wouldn't have been able to get home from the game in anything like a timely fashion), a challenge resulting in SB1070 being found unconstitutional seemed inevitable (see Pennsylvania v. Nelson 350 U.S. 497 1956, for example).

So what's the deal in Arizona? Don't they know this is all for nothing? The various people who believe that all of the creators of SB1070 are ignorant, NAZI, White-supremacist, cowboy-rednecks, aside from hurling rocks from inside their own glass living rooms, are displaying a good deal of intellectual laziness. Sure, there are some individuals with racial motivations, good luck finding legislation or legislators in any state, or town anywhere where that isn't the case. Ignore that for a second. What if the writers of SB1070 were trying to address a legitimate complaint without issuing ranchers an open season most-dangerous game license? What if the Federal government abdicates its Constitutional responsibility to the detriment of a state's residents? What recourse does a state have?

Under 8 U.S.C. sec. 1252c, a state may arrest and detain someone illegally in the country IF that person has previously been convicted of a felony in the United States and deported or left the United States after such a conviction. The state still has to clear the individual's status with the Feds. But SB1070 is going a step farther than that and as I read it, essentially setting up Arizona law enforcement to assist in the enforcement of Federal laws, at least SB1070 is written carefully enough that a novice like myself can interpret that out of it with not-too careful reading. I think that Arizona will probably rely upon the Decanas v. Bica decision which upheld a state's police power to regulate the hiring of Illegals, in order to force the Federal government to enumerate the ways in which SB1070 interferes with Federal policy. That was my original question- will the current administration betray its hand in the course of the litigation? This can play out a few different ways, depending on how accurately or inaccurately the White House has judged public sentiment on the issue. I think the language of the government's argument could do more than not to further the cause of those who see the issues occurring in Arizona and other parts of the country as a serious problem that will not be solved by amnesty or amnesty-light. The victorious suit will backfire, in other words.

As for my personal opinion, which is of course meaningless, I recognize Kathleen's points. James and I were once detained on the Jersey Turnpike because we and the vehicle we were in (a red Toyota pickup) met the profile of alleged drug-traffickers. A very young NJ trooper asked me a whole slew of very foolish questions after making me partially unload the bed of the truck. I was unhappy to put my speakers on the side of the road (Klipsch KG2s!) He demanded to know what I studied in school, and when I said French, he demanded I say something in French. Weighing my options, I chose not to indignantly invoke my Constitutional rights and instead responded: "Va te faire foutre" or something to that effect. He had no clue, but got much nicer after that, which is funny. I am very glad I had ID with me at the time or it would have been a very long day. It is also my opinion that immigration as a whole has been a disastrous failure at the foreign policy level, causing ordinary people in Mexico and the US alike to suffer because of the influence of special interests and the duplicitousness of government. I am not giving the Mexican government a pass on this one either. I think it's pretty unlikely Dennis would be detained even for as long as I was by that NJ trooper coming out of a 7-11, and were he to be I would volunteer to work on the pro se case against Suffolk County that would ultimately pay for Jaden's college tuition. There are so many horrible things happening as a result of the current status quo however, that I am willing to see a few Slurpees spilled if it means an end to human trafficking, for example. And now I will go back to putting music lyrics and thinly-veiled innuendo on my Facebook page.


  1. This was a great idea. It's so lively here...[crickets]...and I like the way you say "we're in trouble if only lawyers can understand this" then you go ahead and cite case law using bluebook format! nice.

    This AZ statute was written very carefully, in anticipation of litigation, and as a throwdown to the feds -- smoking out the fact that the administration is unwilling to enforce immigration laws. So the feds are forced to argue their failure to enforce is their prerogative, citing the AZ statute's conflict not with immigration "law", but with immigration "policy". (POLICY, of course, being a synonym for "we can enforce, or not enforce, whatever we want" or as James G. Rickards recently said on Twitter, 'Whenever you hear the word "policy", think "manipulation by the government" and you'll be on the way to analytic clarity')

    Of course, allowing government to enforce laws only when and against whom it wants basically undermines the rule of law, and any sense of predictability, fairness, or meaning behind said laws. I'd go so far as to call it un-American. Either repeal/change the laws, or enforce them.

  2. It's all a ploy to force concerned citizens to look at pictures of cats on turntables. I go into the Apple store daily just to leave the page open. I used to leave it open to NRO, but a woman was so upset she spilled a soy latte all over the place and a hipster was electrocuted with an iPad. Seriously though, any of those cases are available on Google, it's just easier to cut and paste them typed that way. And as for policy, I think you're absolutely right and that is what the Arizona case is going to do most- expose policy for vooters to see, like it or not. My money is on not.

  3. You're more optimistic than me. Voters see what they want. They'd rather believe AZ is filled with Nazi racists than believe our vaunted DC leaders, Ivy League grads all, lie to our faces and manipulate our sentiments every day.

  4. Well, I guess we'll start seeing today, as the government is seeking some injunctive relief. In the mean time load up your iPod with some cheesy goodness. I picked up a six pack of Guiness on the way home, and lo and behold- SO DID MY WIFE! And here I wasn't going for this "made for each other" Harlequin Romance stuff after eight years of marriage, but I am again, proven wrong. Happily!

  5. The problem is that this undermines the Federal Government's ability to set a unitary national policy on immigration enforcement. The key precedent is the determination that Massachusetts could not set a stricter rule against doing business with Myanmar than the Feds. The issue was not that there was a a conflict, but that Massachusetts could not do something which amounted to asserting its own foreign policy. That said, I happen to agree with you that current Supremacy Clause jurisprudence unnecessarily restricts state laws.

  6. Good point, I had forgotten about the Myanmar case. The question to be resolved still remains, though- what can a state do when the (unstated) national policy is non-enforcement?

  7. Here's a question: at what point does it make sense to lock up a person who is here illegally (either in the county jail or the federal holding facility)? Steve Levy tried to detain undocumented people in the jail if they were issued traffic violations - but it was really expensive at $220/day to house someone in the county jail because they were in the country 'illegally.'

    The feds are overwhelmed with requests to deal with dangerous illegals, and have made a determination that it's not worth the resources to hold and deport people who are here illegally who are not criminals and who are not a danger to public safety. That is our national policy. It has been for a a long time.

    A 'state' cannot do anything, but the voters can elect legislators that will pass legislation and a chief executive who will enforce it. Barring that (and I am not holding my breath) the national policy will stay as it is. As fouled up and dysfunctional as NY is, I'm glad I'm not in AZ!

    Hope you enjoyed the Guiness - that is truly Harlequin Romance material.

  8. Well, my position is still that the issue is a disaster of foreign policy, which as has been pointed out is constitutionally in the Federal domain. From my perspective, "comprehensive" reform begins with establishing a policy whereby treaty or other agreement, those factors that contribute to illegal immigration on a national level are addressed. What if the aid to Mexico (1.6 billion for anti-drug war, 28 million to manage building projects in Mexico City, just to name two) were tied to specific steps and benchmarks on the Mexican side to address the issue? It has been alleged (and I am no expert) that Mexican authorities on some levels actually encourage illegals. I am also a big fan of stiff penalties for Americans who hire undocumented workers, especially since that is an avenue for human rights abuse. Some folks in Oyster Bay Cove who have fancy lawns need to be fined. And lastly, although being a DOE employee of BNL and therefore a recipient of government largess (insert smiley face), I think that the people in Arizona who are the specific victims of crime- especially violent crime- deserve a better policy than politicians throwing up their hands and saying it is too expensive to enforce or even establish a reasonable policy. NSLS II is costing billions of dollars- regardless of how great I think it is to have the light source, or a new aircrtaft carrier, the continued bail out of Fanny and Freddie, or to re-build mosques around the world as "historical sites" I'll bet the ranchers on the border could come up with a better use of that money. The no-confidence vote from ICE also leads me to believe that lack of funding is not forcing the hand of federal policy making as much as ideology and crass politics. Ultimately though, we had a situation wherein voters passed legislation, and rather than challenge it in its implementation, a judge writes a hack decision to block it before the constitutional challenge is even raised. The legislative reform will have to happen at a national level, and starting in November, we'll see how the majority of folks really feel about it, I guess. And the Guiness is always good- and not too fattening!