I just read the opinion. This probably isn’t very helpful, but here are some quickly-assembled thoughts nonetheless.
The first thing to know is that Judge Bolton’s opinion is based on a preemption theory. That is, her view is that some of the sections of the state law are preempted by federal immigration law. The gist of preemption that under the Supremacy Clause, federal law trumps an inconsistent state law. Unfortunately, I can’t say very much about whether Judge Bolton’s opinion is persuasive or not because I’m not sufficiently familiar with preemption law or the details of federal law at issue.
Specifically, Judge Bolton construes some of the vague provisions of the Arizona law; concludes that those sections are inconsistent with the general concerns underlying the federal immigration policy; and then she blocks those sections from going into effect. The key precedent Judge Bolton relies on — and thus the place to start if you want to know more — is Hines v. Davidowitz, 312 U.S. 52 (1941).
Given that parts of Judge Bolton’s opinions are based on a statutory interpretation that the lawyers for Arizona themselves rejected, I would guess there is a possibility that this opinion may ultimately lead the Arizona legislature to pass amendments to the Arizona law clarifying some of the sections. But that’s just a guess.
Anyway, sorry I can’t be more helpful in evaluating the correctness of the decision: You’d really need to know a lot more about preemption law and federal immigration law to speak on that with any authority.
PlugInMonster says:
Anyways, I agree that the law is unconstitutional and should be struck down. The answer is not to enact these illegal state laws but to vote out the scoundrels in D.C. who won’t enforce federal immigration laws. That is the ONLY right answer. Obviously with Pelosi/Reid/Obama in charge the voters have made it quite clear that they either are for or don’t care about illegal immigration.
July 28, 2010, 4:42 pmChris says:
Would be about a bitch if AZ decided that they would stop enforcing all state laws that were already covered by federal ones. Course we all know that the federal government actually enforces gun and drug laws even if the state has legalized something. Not so much for immigration laws.
July 28, 2010, 4:50 pmjill says:
via William A. Jacobson…
Helplessness and Anarchy
The result of the injunction granted today by the federal court in Arizona preventing the key provisions of S.B. 1070 from taking effect is not just the maintenance of the status quo.
At a legal level, it is true that nothing has changed. S.B. 1070 never took effect, so no law was lost.
At a more realistic level, everything has changed. . . .
http://legalinsurrection.blogspot.com/2010/07/helplessness-and-anarchy.html
July 28, 2010, 4:50 pmKamal says:
Right, because Obama has undone all the great things Bush and his predecessors did to secure the border. Like.. ?
July 28, 2010, 4:56 pmLeroy Washington says:
In one of his Gulag books Solzenitzen writes about Soviet interrogators “investigating” people for anti-Soviet crimes. No one ever came out innocent. S. writes about one guy who convinced his interrogator he was innocent, and was immediately found guilty of crimes against the state for propagating stories about the failure of Soviet interrogators.
Solzenitzen’s point, of course, was that the interrogator knew what the ruling would be going in. The point of the hearing was to find out how to fit the facts to the conclusion.
Analyzing Judge Bolton’s opinion as if it were guided by the rule of law rather than by her foregone conclusion is an exercise in cluelessness.
July 28, 2010, 5:00 pmctdonath says:
Then why was McDonald necessary?
July 28, 2010, 5:02 pmBama 1L says:
The Soviets never pretended that legality was anything more than a bourgeois anachronism. I take it you agree?
July 28, 2010, 5:14 pmAnderson says:
Analyzing Judge Bolton’s opinion as if it were guided by the rule of law rather than by her foregone conclusion is an exercise in cluelessness.
What do you know about Judge Bolton that proves she has a complete lack of integrity and is unfit to be a judge?
– I mean, besides her ruling contrary to your preferences, that is.
Please share. If Judge Bolton is a despicable fraud, we all need to know about it.
July 28, 2010, 5:22 pmHa says:
You mean Republican Senator Jon Kyl shouldn’t have recommended Judge Bolton for the bench?
July 28, 2010, 5:24 pmFederal Farmer says:
I guess I don’t understand preemption.
During the years in which we had a Federal Assault Weapons Ban, was Chicago’s Assault Weapons Ban illegally preempting Federal Law?
Chicago also has a Hate Crime Law. Does that law illegally preempt Federal Hate Crime Laws?
July 28, 2010, 5:28 pmGreg S. says:
From my first reading it seems that the judge does a lot of speculating about what the harm will be. She presents many hypotheticals about what might occur. She seems unconcerned about the special problems presented with facial challenges. I realize that facial challenges have increased in frequency in recent years, but this seems to take it to a new level.
July 28, 2010, 5:31 pmwfjag says:
Meanwhile, in France, the home of Liberty, Fraternity & Equality: Sarkozy orders illegal Roma immigrants expelled (July 28, 2010) http://www.fox41.com/Global/story.asp?S=12884993
July 28, 2010, 5:32 pmOrin Kerr says:
I’ve deleted a few commnents on relevance grounds. Please keep the comments related to the decision and immigration law.
July 28, 2010, 5:32 pmProving Lindgren's point about comments says:
What do you know about Judge Bolton that proves she has a complete lack of integrity and is unfit to be a judge?
How about the fact that the entirety of her analysis is premised on an interpretation of the law that is specifically rejected by the state of Arizona? Can you cite another case where this was done in a similar circumstance?
July 28, 2010, 5:34 pmHarry Schell says:
Very disappointed. It also appears that Bolton rules against aliens having proper ID on them as required by federal law. AZ officials just can’t do anything about it.
And so will Rhode Island (or is it Delaware?) stop their police from ascertaining immigration status, too?
I don’t know anything about pre-emption law except what it does, so I will refrain from trying to sharpshoot Bolton’s reasoning.
In the whoredom that has become public policy under the Obama regime, I will place a small wager than Bolton will see a promotion in the federal judiciary system within the next year. No facts to back it up, just looking at certain events since Holder took on DOJ.
Democrats need the Latino vote.
July 28, 2010, 5:36 pmHa says:
Chief Justice Roberts recently refused to accept the governments interpretation of a law. It happens all the time.
July 28, 2010, 5:38 pmAnderson says:
How about the fact that the entirety of her analysis is premised on an interpretation of the law that is specifically rejected by the state of Arizona?
Can you cite me a case where a federal judge was obliged to read a statute, not as it’s written, but as “the state of Arizona” (who is that, exactly?) told the judge to do? Has the Arizona Supreme Court ruled on the issue?
I’m reading the Hines decision that Prof. Kerr linked, and it’s pretty on-point thus far. If I were a federal trial-court judge, I would not be in any grand hurry to minutely distinguish what looks like binding SCOTUS precedent.
Legal imposition of distinct, unusual and extraordinary burdens and obligations upon aliens — such as subjecting them alone, though perfectly law-abiding, to indiscriminate and repeated interception and interrogation by public officials — thus bears an inseparable relationship to the welfare and tranquility of all the states, and not merely to the welfare and tranquillity of one.
July 28, 2010, 5:40 pmAnderson says:
It also appears that Bolton rules against aliens having proper ID on them as required by federal law. AZ officials just can’t do anything about it.
Here’s a question: can the AZ police arrest someone for a violation of federal immigration law?
I had thought that state officials could, in theory at least, enforce federal laws, but I don’t really know. If I can file a 1983 action in state court, can I be prosecuted for a federal crime in a state court?
July 28, 2010, 5:46 pmJardinero1 says:
I wonder if this will have any future bearing on California’s refusal to enforce federal drug law should Prop 19 pass. In Arizona, the feds are telling a state not to enforce a federal law. What will they do with a state that actively refuses to assist in the enforcement of a federal law and, in fact, actively encourages, through regulation, that its citizens violate federal law.
July 28, 2010, 5:51 pmjosh says:
“Obviously with Pelosi/Reid/Obama in charge the voters have made it quite clear that they either are for or don’t care about illegal immigration.”
That’s simply not fact (or an opinion not based in fact). There was a time, not long ago, when a certain Republican Arizona senator in fact was on board with a bipartisan immigration reform bill that is now being re-introduced by Rep. Gutierrez in the house. Of course, for some reason, the Az senator is against it. What happened?
Truth is, the dems have made a lot of proposals for immigration reform, some radical and some pretty centrist, and the opposition party has made clear it is going to be just that. Don’t blame the brand new requirement for 60 votes in the senate for ANY legislation to pass on Pelosi, Reid and Obama.
July 28, 2010, 5:52 pmU.Va. Grad says:
Wouldn’t local refusal to enforce a federal law be covered by anti-commandeering precedents like NY v. US?
July 28, 2010, 5:56 pmAnderson says:
In Arizona, the feds are telling a state not to enforce a federal law.
Really?
July 28, 2010, 5:57 pmjosh says:
“In Arizona, the feds are telling a state not to enforce a federal law.”
I don’t think that’s right. I think the best analogy I’ve heard is that the feds are telling states that the states can’t enter into treaties with foreign countries. Or declare war. There are certain powers reserved to the feds.
July 28, 2010, 6:03 pmProving Lindgren's point about comments says:
Can you cite me a case where a federal judge was obliged to read a statute, not as it’s written, but as “the state of Arizona” (who is that, exactly?) told the judge to do?
The state of Arizona is the defendant in the matter we’re discussing. If that term (“defendant”) requires explanation, please let me know.
I’ll assume that your refusal to provide an answer to my question should be read as “no, of course not.” I would have preferred that response, but you provided a lot more information answering as you did- so thanks.
To those who have some background with federal preemption (and who know what the word defendant means) is the approach utilized in this opinion typical with respect to the interpretation of the AZ statute? It would seem to be extremely problematic if so, but this isn’t my area so I’m happy to defer to those who have some background here.
July 28, 2010, 6:04 pmJeff R. says:
Surely someone, somewhere has challenged the constitutionality of a city or county government’s “Sanctuary” laws and policies on these grounds and given us a precedent of some kind, right? (Any victim of a crime committed by an illegal alien who had previously interacted with that government in a manner than in a non-sanctuary city would have led to INS proceedings ought to have standing for that suit, right?)
July 28, 2010, 6:05 pmNunzio says:
Anderson,
Federal courts have exclusive jurisdiction over federal crimes by statute (just like copyright and patent claims).
I think the big problem with the judge’s opinion is that, as it now works, after state and local police arrest some people they will check on their immigration status and will report/turn them over to the federal government. If the factors they use to determine whether to check some arrestee’s immigration status and whether to report them to ICE are codified as a matter of state law or local policy, would that be a problem under federal law?
July 28, 2010, 6:07 pmhhoran says:
There are very solid grounds for today’s decision delaying implementation, and good reasons to expect SCOTUS to reach similar conclusions. The Arizona law is not designed to enforce existing federal law, it is designed to enforce something different from today’s federal law.
July 28, 2010, 6:11 pmBut this is a law that was designed to be overturned in this manner. There are no Arizona politicians who seriously want the rigorous immigration law enforcement that many of their constituents want. Rigorous enforcement would seriously damage many of the main business interests that support Arizona Republicans (agriculture, construction, hospitality, etc). Some of those interests actively depend on easily exploitable “illegal” labor, others benefit from the huge pressures immigrants place on low-end wages. By enacting law badly worded in many areas, and easily overturned on preemption grounds, those politicians get to march at the head of the anti-immigration parade without any danger that their corporate sponsors will ever suffer. And they get to blame it all on those socialist activist judges!
Federal Farmer says:
That is a bad analogy. AZ isn’t naturalizing citizens or even deporting them.
July 28, 2010, 6:13 pmAnderson says:
Thanks, Nunzio.
Proving, if you’ll read the judge’s opinion, you will find her carefully explaining why the state’s argument on how to read the statute cannot be accepted.
July 28, 2010, 6:15 pmAnon says:
Then why are you posting about it? Why not stick to what you know, and let people more knowledgeable about this issue offer their insight? You could have made an equally useful post about the geology of Mars or Mongolian literature, right?
July 28, 2010, 6:15 pmORID says:
I think there are some parts of this law that legitimately are unconstitutional. However, this is going to be a vexing case. I’ll admit I focused on De Canas when evaluating this case rather than National Center for Immmigrants Rights (9th Circuit).
1) In striking down the employee-employer sanctions this judge over-ruled De Canas vs. Bica.
The relevant quote from De Canas (361):
there is evidence in the form of the 1974 amendments to the Farm Labor Contractor Registration Act, 88 Stat. 1652, 7 U. S. C. § 2041 et seq. (1970 ed., Supp. IV), that Congress intends that States may, to the extent consistent with federal law, regulate the employment of illegal aliens.
7 USC 2041 et seq was re-codified and never struck down or changed by Congress. Thus, if Congress did want to oust the States they must change the Farm Labor Contractor Registration act, or at least the part that says (29 USC 1871) This chapter is intended to supplement State law, and compliance with this chapter shall not excuse any person from compliance with appropriate State law and regulation.
2) So one the one hand we have: (a) foreign visitors from Visa Waiver Program, (b) individuals who have applied for asylum but not yet received an adjudication, (c) people with temporary protected status, (d) U and T non-immigrant visa applicants,and (e) people who have self-petitioned for relief under the Violence Against Women Act. These people apparently don’t have proper documentation.
On the other hand we allegedly have an “integrated and comprehensive system for registration.” Now I know some of the people in a-e status I quoted above go through the DoJ and State Department. So the fact that they won’t have proper documents is a flaw in the implementation of the law by the Executive Branch, not in the law itself. Thus the Visa Waiver Program, individuals applying for assylum, people with temporary status, U and T visa applicants need some form of documentation, no?
3) I just don’t like it when judges say, “Congress could have done…”. How come mandatory e-verify as a system holds up, but the employer sanctions under 1070 don’t? It doesn’t make sense. Mandatory e-verify system is also a regulation of the employee.
Okay, those were my initial thoughts when reading the order… lets see what others have written.
July 28, 2010, 6:17 pmDilan Esper says:
There are very solid grounds for today’s decision delaying implementation, and good reasons to expect SCOTUS to reach similar conclusions. The Arizona law is not designed to enforce existing federal law, it is designed to enforce something different from today’s federal law.
I wouldn’t put it quite this way. What I would say instead is that saying “we are just enforcing federal law” is a political talking point, not a legal argument. It’s a focus-grouped, poll-tested statement intended to help drum up political support.
After all, what they are actually trying to do is to change what they see as an overly lenient federal policy with respect to immigration. And since that is what they are doing (and what they would admit they were doing if pressed), it’s pretty hard to then argue “let this stand because it’s perfectly congruent with federal law”.
July 28, 2010, 6:18 pmAnderson says:
Then why are you posting about it?
The Hines link was quite informative.
July 28, 2010, 6:26 pmORID says:
Now I also think this ruling helps Arizona. If the Federal Government isn’t doing its job, can’t the states step in as well?
Clearly I think Arizona can prove that no resources will stop the harm of illegal immigration. Thus, right now, it’s not possible to preempt any of these laws. This is why I believe state laws like this are needed in order to control immigration, regardless of if there is an amnesty. There will always be this question of “How do we enforce our immigration laws”.
Now, Congress can also solve this simply by inserting provisions in the employer and employee immigration penalties saying “no provision of this law pre-empts states from enacting their own penalties for these crimes”. This would solve the problem (and should be a GOP rallying cry in November). Its a simple one-line change. In fact I’m sure it could be used as a negotiating tactic in order to get CIR (if the Democrats were smart they would agree to do it).
Back to the whole pre-emption argument. I think some immigration regulations might be pre-empted, but it’s not due to Federal inaction at this time. Although now I’m convinced we don’t just need to improve e-verify; Congress needs to help setup some system that will quickly verify immigration status of anyone (I think that will add $2B to the $2B already needed, right?).
So in short:
a) Congress needs to vacate their alleged pre-emption of sanctions against illegal aliens.
b) Congress needs to improve e-verify, make it mandatory nation-wide.
c) Congress needs to set up an e-verify-like system for all those in the country.
d) Then I’ll be satisfied that Comprehensive Immigration Reform might have a snowball in hell’s chance of working…
July 28, 2010, 6:27 pmBen P says:
I suppose I’m stepping into it, but the broad shape of any answer under federal preemption law is pretty clear. There are two kinds of preemption, conflict preemption and field preemption.
Field preemption exists where congress has evinced some intent to occupy the “whole field of the law,” and any state laws on that topic are automatically invalid.
Conflict preemption exists where federal law exists, but does not “occupy the whole field.” However, if the state law is inconsistent with the federal law, the federal law always wins.
An example of field preemption I’m familiar with is FAA regulations. The FAA has the sole authority to issue flight regulations. Therefore, any state flight regulations are ineffective. (although many laws predating the FAA are still on the books). If the state were ever to enforce those regulations, the laws would be struck down.
Conflict premption is more like environmental regulation or consumer protection regulation. There are federal consumer protection laws, but if california wants to make every manufacturer put “lead is a product known to cause cancer in the state of california” on their products, federal law does not stop them from doing so.
The specific boundaries of the law are always gray. But I’ve seen enough law to make a plausible case that federal immigration regulation is field preemption. The argument would be that States are simply not allowed to change immigration rules, even if they wish to make them stricter
If it’s not conflict preempted it gets sticky though. I’d also seen some commentary suggesting the US was also arguing foreign relations preemption. That state laws that have a substantial effect on foreign relations are preempted. I don’t know enough to evaluate this point.
July 28, 2010, 6:28 pmSk says:
“Then why are you posting about it? Why not stick to what you know, and let people more knowledgeable about this issue offer their insight? You could have made an equally useful post about the geology of Mars or Mongolian literature, right?”
I had similar thoughts.
Perhaps there could be a post discussing what exactly preemption is or means from a legal standpoint. I, along with several others, am confused about the basis for the argument. As another poster mentioned, States have their own assault weapons bans and hate crimes law. I had thought, several weeks ago, of the federal automobile pollution standards-and that California has its own standard. I know (without much detail) that state, local, and city police work with federal law enforcement officials all the time. If a state police encounters a crime that has federal implications, he calls the FBI-he is not obligated to stop investigating the crime.
So what exactly is preemption? Intuitively, it seems an entirely made up concept, given how state and federal law enforcement works together. But my intuition is not based on a real understanding of the legal definition of ‘preemption.’
Sk
July 28, 2010, 6:28 pmBen says:
No one should be surprised by Judge Bolton’s ruling. As long as Hines is binding precedent (and for a District Court judge it certainly is), the sections of SB 1070 that Bolton enjoined never had a chance. The only case supporters of SB 1070 were able to point to was De Canas v. Bica , 424 U.S. 351 (1976), which was just not on-point.
The Supreme Court may well overrule Hines — or knowing Roberts, twist Hines around so that no one knows what it stands for anymore — but until that happens, Bolton’s right on the law.
July 28, 2010, 6:33 pmHarvey Mosley says:
But there is a difference between policy and law. Even if they did admit to trying to change federal policy, that doesn’t mean that the state law is not congruent with federal law. Is it really unreasonable to say that federal law says “A”, but federal policy says “B”?
July 28, 2010, 6:34 pmWhitehall says:
As a citizen with a working knowledge of the US Constitution and the Federalist Papers, I’m at a loss to understand the judge’s reasoning EXCEPT as a political statement made possible by a “Living” constitution. I expect she will be overturned, if not by the 9th Circuit, then at SCOTUS.
Of course, that could take years.
July 28, 2010, 6:36 pmJ. Aldridge says:
More: http://federalistblog.us/2010/07/feds_argue_pre-eminent_authority_over_immigration.html
July 28, 2010, 6:37 pmMark Horning says:
Correct, the legal argument is: The law is carefully crafted to mirror existing federal law. As such, under the legal principle of concurence, the law is consitutional and is not preempted by federal statute.
July 28, 2010, 6:38 pmORID says:
I just don’t agree with the argument that the Executive Branch can set priorities in such a way that it ignores enforcing the law. So doesn’t that give a huge hole to Arizona enter in and claim that if this is all by design of the Executive Branch, the fact that all of these illegal aliens is because the Federal Government isn’t enforcing the law.
I need to understand more about when states can enter in, even if there is “pre-emption”. I thought there was some case where it happened before, and it strikes me that this case (immigration) is another one where the Federal Government is never going to be able to regulate away this issue. The judge did agree it is a problem for the states.
I’m just confused at some of the logic. Since National Center for Immigration Rights was reversed the Supreme Court, why does it hold any precedence? I guess because the Supreme Court ruled narrowly and didn’t rule on any of the merits of the immigration law?
I don’t know why footnote 11 in Supreme Court’s ruling in National Center isn’t applicable here:
there is no evidence that the presumption cannot be effectively rebutted by those aliens who are entitled to employment, or who have a colorable claim to the right to work. The fact that the rule may make it more difficult for aliens who are not entitled to work to resist deportation is, of course, not a reason for concluding that the regulation exceeds the Attorney General’s statutory authority.
Now also. What if the immigrants themselves weren’t detained, but were issued a citation, in which case they wouldn’t have to be held until adjudication of their papers and identification?
It seems this judge just said that immigrants can’t be required to carry around their green cards with them all the time either.
July 28, 2010, 6:38 pmAnderson says:
As a citizen with a working knowledge of the US Constitution and the Federalist Papers, I’m at a loss to understand the judge’s reasoning EXCEPT as a political statement made possible by a “Living” constitution.
Did you read her opinion? Did you read Hines?
July 28, 2010, 6:40 pmBC says:
The question I have of those familiar with pre-emption law is whether it is federal law, or federal policy, that pre-empts state law.
One of the more jarring parts of the opinion, to me, was where Bolton reasoned that the Arizona law conflicted with federal law in part because increased referrals to ICE occasioned by Arizona’s law would divert federal resources from other priorities.
July 28, 2010, 6:40 pmjosh says:
Federal Farmer
With respect to your 6:13 comment, Ben P’s (accurate, I think) comment at 6:28 shows why it is a good analogy. [Although perhaps his FAA analogy is better. It shows the error in J Aldridge's quotation above. Yes! Since the Constitution didn't expressly withhold the power to regulate air traffic from the states, Illinois can now allow me to land my Cesna on I-90!]
July 28, 2010, 6:45 pmDavid M. Nieporent says:
Exactly. I tried to explain that to Dilan before. The Supremacy Clause only applies to laws, not policies.
July 28, 2010, 6:46 pmDilan Esper says:
But there is a difference between policy and law. Even if they did admit to trying to change federal policy, that doesn’t mean that the state law is not congruent with federal law.
The problem is, it isn’t state legislators and governors who have the final say on the content of federal law. It’s federal judges, with the executive branch deciding how to enforce it.
So if a state lawmaker is trying to change federal policy, saying “we know what federal law REALLY means and our view should prevail over the executive branch and federal judiciary” is a tough claim to win.
July 28, 2010, 6:46 pmBen says:
People who support SB 1070 are (somewhat disingenuously) focusing on this, but it’s not crucial to the opinion. Under Hines, the fact that the Arizona law placed additional requirements on legal immigrants effectively required Bolton to kill it.
July 28, 2010, 6:49 pmDilan Esper says:
I just don’t agree with the argument that the Executive Branch can set priorities in such a way that it ignores enforcing the law.
That’s not really the argument. Rather, the argument is that the REMEDY for this is impeachment (for failing to take care that the laws are faithfully executed).
What supporters of the law are really arguing is “if the federal government refuses to enforce its own laws, including for sensitive reasons of foreign policy, the Constitution permits the states to step in and override the federal enforcement choices rather than restricting the remedy to impeachment of the President or removal via the electoral process”. And there’s no reason to think that THIS is the case.
Exactly. I tried to explain that to Dilan before. The Supremacy Clause only applies to laws, not policies.
Well, David, I have an Article III federal judge on my side. You have– nothing.
July 28, 2010, 6:51 pmORID says:
Re: Hines
Does this mean a state can require all illegal aliens to register? Hines dealt with all aliens, but what is Arizona simply said it wanted to register all aliens not already registered, or cleared to stay by the United States at the Federal level. You see, the Federal government is only registering and tracking aliens who they allow into the country. Unauthorized aliens could have to deal with a lot worse.
Also, why are treaties and foreign relations given more deference than actual law that protects Americans? States have legitimate interests in regulating employment.
More from Hines
Legal imposition of distinct, unusual and extraordinary burdens and obligations upon aliens — such as subjecting them alone, though perfectly law-abiding, to indiscriminate and repeated interception and interrogation by public officials — thus bears an inseparable relationship to the welfare and tranquility of all the states, and not merely to the welfare and tranquillity of one.
Hines did not deal with illegal immigrants.
This case is going to blow up in the faces of the Federal Government, and is quite an interesting states-right case. Smells to me like the beginning of the end of our stupid, ridiculous “broken borders”.
Arizona should love this injunction because it provides them with more ammunition.
July 28, 2010, 6:52 pmProving Lindgren's point about comments says:
The question I have of those familiar with pre-emption law is whether it is federal law, or federal policy, that pre-empts state law.
This is the other key point. It seems that the administration’s argument is largely “policy is what we say it is- and the text of the law in said area is irrelevant.” That may be true, but I suspect a lot of people cheering for this administration to make that argument are really going to regret it when they encounter an administration whose priorities they don’t favor. Unless, of course, they simply ignore the argument, and then abandon it, subsequently. Not that such would ever happen of course.
July 28, 2010, 6:53 pmORID says:
Re: More on Hines
With a view to limiting prospective residents from foreign lands to those possessing the qualities deemed essential to good and useful citizenship in America, carefully defined qualifications are required to be met before aliens may enter our country.
Opposition to laws permitting invasion of the personal liberties of law-abiding individuals, or singling out aliens as particularly dangerous and undesirable groups, is deep-seated in this country. Hostility to such legislation in America stems back to our colonial history and champions of freedom for the individual have always vigorously opposed burdensome registration systems.
Hines isn’t talking about individuals who upon entrance *break the law*. Sorry, but the fact that the judge relied on Hines make me a bit miffed. Certainly I do agree that some of the sections should stopped. But I don’t agree that this is a slam-dunk for the United States merit-wise.
July 28, 2010, 6:57 pmgasman says:
The constitution is a relatively short document. For the sake of those who are not in the legal field, would you please cite the conflict with this document.
July 28, 2010, 7:01 pmhhoran says:
1. The state law isn’t exactly congruent with the federal law
July 28, 2010, 7:01 pm2. The state lawmakers (on the surface) are trying to override the executive branch and the federal judiciary’s view of what the federal law is/should be, and no judge (with the possible exception of Roberts) would ever approve
3. The state lawmakers (in reality) have absolutely no desire to achieve more strict enforcement of the written law than the executive branch current wants. If that was the real objective, the Arizona legislature could pass a law dedicating Arizona taxpayer funded resources to enhanced local enforcement, with state employees acting under the direction of federal INS/DHS staff. No legal conflicts, no jurisdictional issues, no Constitutional problems. But the chance of the Arizona legislature passing such a law is exactly zero.
Hercules says:
When did things in America get so bad. I weep for my lost country. It’s being bled out. It’s hemorrhaging.
July 28, 2010, 7:07 pmJohn says:
While from a practical perspective I think this law is a mistake, I find the preemption argument to be a difficult sell. The federal government often relies heavily on local enforcement of federal matters. If federal law explicitly stated that local enforcement was prohibited then the argument would make sense. Absent those explicit instructions, I would think that the assumption would allow for concurrent jurisdiction and/or enforcement.
July 28, 2010, 7:13 pmChris L says:
Hines seems readily distinguishable, to me anyway. The Pennsylvania statute required adult aliens to register with the state annually and pay a fee for doing so. As Hines noted, the feds had totally occupied the field: “And in 1940 Congress added to this comprehensive scheme a complete system for alien registration.” Doesn’t it seem to you that a state law compelling aliens to register is a far cry from a state law directing state law enforcement officers to contact their federal counterparts when they detain someone whose legal status is in question?
July 28, 2010, 7:14 pmORID says:
What about the Rhode Island checks? Their police officers have been checking immigration status on every stop. How come Arizona can’t do it, but Rhode Island can? Is it only because the Executive Branch says so?
July 28, 2010, 7:14 pmORID says:
But the Feds haven’t occupied the field of registering illegal aliens… so it seems to me the states can do so. If a state wanted to it can register an illegal alien resident and then tell them not to work and impose a crime and fine on them if they don’t do so.
After all, no one is occupying the field of registering *illegal aliens*. That’s the whole point of why Arizona and a large part of the country are pissed off.
And if Arizona was to set-up such a scheme the DoJ would be powerless to tell them who was allowed to stay per DoJ.
I don’t understand why our system of laws is screwed up that states can’t occupy a field inherently not occupied by the Federal Government.
Hines is completely distinguished from this case. This case deals 0% with aliens already admitted to stay (set aside the police stops, I’m focusing on the regulation against unauthorized aliens).
If people think these cases aren’t going to make Arizona worse for immigrants, they are wrong. Because once you start to get some bounds and limits, Arizona can stretch as far as it wants.
July 28, 2010, 7:17 pmProving Lindgren's point about comments says:
Doesn’t it seem to you that a state law compelling aliens to register is a far cry from a state law directing state law enforcement officers to contact their federal counterparts when they detain someone whose legal status is in question?
In order for me to answer this, you first have to tell me who my client is. Or, just let me know what party name adorns this big foam index finger I wave around.
July 28, 2010, 7:17 pmJay says:
The United States is frequently a party in actions concerning the meaning of federal statutes. Courts do not automatically accept whatever interpretation of a statute is advanced by the DOJ in litigation; if they did there would be little point in such cases, the government would just always win.
Proving Lindgren’s point about comments says:
I’ll assume that your refusal to provide an answer to my question should be read as “no, of course not.” I would have preferred that response, but you provided a lot more information answering as you did– so thanks.
July 28, 2010, 7:23 pmTo those who have some background with federal preemption (and who know what the word defendant means) is the approach utilized in this opinion typical with respect to the interpretation of the AZ statute? It would seem to be extremely problematic if so, but this isn’t my area so I’m happy to defer to those who have some background here.
geokstr says:
97 days to find out if that still holds true.
To say that the fact that Pelosi/Reid/Obama being in charge means that the electorate actually positively voted for this monstrous expansion of government instead of as a negative reaction to Bush and the financial collapse is a real stretch.
What additional requirements? I thought that legal immigrants were already required under federal law to carry their papers at all times. Or did the Obama administration argue that that’s just another federal law they don’t feel like enforcing?
July 28, 2010, 7:29 pmBen says:
As I read it, Hines holds that states can not impose requirements for legal immigration supplementary to those imposed by the federal government. The Arizona statute did that. I agree that Hines can be interpreted to mean something different, but it’s a stretch. Regardless of what you think about SB 1070 from a policy standpoint, I don’t think a trial court judge should be making that call. If Hines is bad law, then the Supreme Court should overrule it.
July 28, 2010, 7:31 pmOrin Kerr says:
Anon:
In my experience, if I don’t post anything about it the following things happen:
1) I start to receive e-mails asking me to post on it.
2) I then receive e-mails saying I need to post on it.
3) I next receive e-mails — and perhaps a blog comment posted on an unrelated thread — saying that I’m a political hack for not posting about it.
Further, stating that the decision involves a rather technical question of preemption law — and that its correctness or incorrectness is not obvious — is itself worth noting.
July 28, 2010, 7:32 pmFantasiaWHT says:
Taking years is true, and a strong argument for these sorts of disputes being heard as an exercise of original jurisdiction by SCOTUS.
July 28, 2010, 7:32 pmWhitehall says:
Anderson,
The point was made (after my posting) that the Arizona law is conguent with federal law but not current executive branch policy. The critical portion of the Arizona law is that Arizona law officers, upon reasonable cause that a detained individual is not in the US legally, inform ICE for a determination of conformance with Federal immigration law and hand over the individual as required.
Congress has passed immigration laws and Arizona took the trouble to mimic them. The Administration doesn’t want to vigorously execute the laws that earlier Congresses have passed and prior presidents have signed into law. Arizona wants the federal law followed and the Adminstration doesn’t, as a matter of policy – THEIR policy.
This is bunk. The proper process of governance would be for the Administration to propose changes to the laws and have Congress vote on them. Let our elected officials be accountable for executing existing law and for the changes in the laws they want.
The lawsuit is just a way to avoid accountability to the voters who, polls show, support stricter and more vigorous enforcement of existing federal law – even if a state has to help by delivering suspects into the hands of federal agents.
If the Obama Administration and the Democratic majorities in Congress want more open borders and less vigorous regulation and enforcement of immigration, let them pass “Comprehensive Immigration Reform” and then stand before the voters in November.
We all know that they are scared of just that.
July 28, 2010, 7:33 pmProving Lindgren's point about comments says:
The United States is frequently a party in actions concerning the meaning of federal statutes. Courts do not automatically accept whatever interpretation of a statute is advanced by the DOJ in litigation; if they did there would be little point in such cases, the government would just always win.
That all seems perfectly reasonable. But in this case we have a judge announcing that the law doesn’t mean what the defendant says it means and because it must be interpreted in the judge’s preferred manner it therefore runs afoul of federal policy. I’m not suggesting a judge concede a defendant’s interpretation in all cases, but absent a compelling justification for his/her preferred reading (which I don’t see in this case) it would seem that a judge can interpret any statue in such a way so as to find that it’s preeempted. Such would be problematic. For that reason, I was looking to see if there was a typical approach embraced in these instances.
July 28, 2010, 7:34 pmBen P says:
and I stayed at a Holiday Inn Express Last Night!!
July 28, 2010, 7:35 pmfrankcross says:
I know a little about preemption and I know that federal policy can preempt state action, not just federal law.
Indeed, one of the major measures of the Bush Administration was to have administrative policies of the Administration preempt state regulation and litigation of business, even when the underlying law did not itself do so.
Also, it is reasonably common for government’s to go into court and say a statute really means something to save its constitutionality and for a court to reject that, believing that the text of the statute does not truly say what the government is now claiming in litigation.
It appears to me that posters have chosen their preferred conclusion and then are scrambling for legal arguments to support that. Something judges are known to do. Whether this particular judge did that, though, requires a little closer analysis than I’m seeing.
July 28, 2010, 7:40 pmSonicfrog says:
I haven’t done much research into the ruling, so I won’t comment on it. But here is a question that is nagging at me: Why didn’t Arizona do the exact same thing that RI is doing? It certainly looks like you don’t need a separate state law to achieve the same results, as RI has shown.
July 28, 2010, 7:40 pmMark Field says:
You mean like segregationists?
July 28, 2010, 7:44 pmDavid M. Nieporent says:
the text of the Constitution.
(I know; for certain ideologies, the notion that one should look to something obscure like that is just quaint.)
July 28, 2010, 7:45 pmProving Lindgren's point about comments says:
Indeed, one of the major measures of the Bush Administration was to have administrative policies of the Administration preempt state regulation and litigation of business, even when the underlying law did not itself do so.
Have you a citation for these measures? It would seem that such would advance the discussion significantly.
July 28, 2010, 7:47 pmProving Lindgren's point about comments says:
You mean like segregationists?
Another cheap shot at the Democratic party. That’s just no way to foster reasoned discussion.
July 28, 2010, 7:50 pmDilan Esper says:
the text of the Constitution.
No you don’t. There isn’t a droplet of ink that says that states have the power to override the executive branch’s determinations regarding federal law enforcement.
I have always conceded that the one thing you DO have is an impeachment claim, on the ground that Obama is not taking care that the laws are faithfully executed. But nothing in the Constitution states “should the President fail to take care that the federal laws are faithfully executed, the states shall have the power to pass laws to execute them”.
July 28, 2010, 7:54 pmwolfefan says:
Somewhat off topic – does RI really check the immigration status of every single driver and passenger that they pull over in a traffic stop? I have had to do this in other contexts – the responses do not always come back instantly as they do with DMV checks and the like. They can sometimes take hours to respond.
July 28, 2010, 7:55 pmBen says:
There’s a lot on this in the opinion itself, but there are a number of legal immigrants who are not issued the sort of papers AZ police where required to ask for. Also, what about (for example) British tourists? The federal government does not even require them to have a visa, so how are they supposed to prove their legal status without being detained?
July 28, 2010, 7:55 pmcboldt says:
– does RI really check the immigration status of every single driver and passenger that they pull over in a traffic stop? –
July 28, 2010, 8:01 pmI think not. Most drivers have DL, which carries a presumption of being in the country legally. The numbers are small. RI turned in 222 in one recent year, after ramping up enforcement.
See R.I. troopers embrace firm immigration role – The Boston Globe for some background.
CDR D says:
I have to wonder why a state’s interest in enforcing the law in immigration issues should be any different from enforcing the militia law at issue in *Houston v. Moore*. So long as the state’s action are not repugnant to the Constitution. Arizona is not setting up their own naturalization process, nor is the state engaging in deportation proceedings.
If the feds are negligent in excercising the power granted, the state has the reserved power to fill the void according to the dicta in *Houston*. At least that seems to me to be what they are saying.
Congress has power to provide for organizing, arming and disciplining the militia; and it is presumable, that the framers of the constitution contemplated a full exercise of all these powers. Nevertheless, if congress had declined to exercise them, it was competent to the state governments to provide for organizing, arming and disciplining their respective militia, in such manner as they might think proper.
July 28, 2010, 8:03 pmRobbie says:
Only the federal government has the power to print and coin currency.
If an Arizona policeman stops an individual for speeding and has reason to believe that the shopping bag full of hundred dollar bills on the front seat is counterfeit, should the policeman detain the individual and contact the Secret Service or would judge Bolton consider that an “undue burden”?
July 28, 2010, 8:06 pmcboldt says:
– Also, what about (for example) British tourists? The federal government does not even require them to have a visa, so how are they supposed to prove their legal status without being detained? –
July 28, 2010, 8:06 pmMy understanding is that proof isn’t required, as a general rule. Only when a law enforcement officer obtains suspicion. If a tourist says “Here on vacation,” that, along with observations and answers (e.g., to “where are you staying?”), is apt to dispel suspicion.
frankcross says:
Proving Lindgren, you can google as well as I can, and this is not a secret.
It first came of issue in the Reagan Administration and was discussed in various articles, one being 70 Va. L. Rev. 1429. A more recent liberal complaint about the Bush policy can be found at http://www.justice.org/cps/rde/xbcr/justice/Truth_Torts_704.pdf.
July 28, 2010, 8:06 pmTen seconds of googling for you.
Whitehall says:
Sorry, I’ve never grasped how that cliche worked as humor, either kind or cutting. Sounds like you watch too much TV.
As a civilian, one reason I visit here is to keep an eye on what you legal eagles are up to.
Citizens are the only legitimate source of power under our system of government and somebody has to call BS when the people in the robes and their attendants stray off the ranch.
July 28, 2010, 8:14 pmepluribus says:
PlugInMonster says:
Obama campaigned on a promise to pass comprehensive immigration reform–a reform much like the one George W. Bush and John McCain supported not so long ago. He has proposed that Congress do just that this year. But the Republicans (including the chameleon-like McCain) now say “No.” Of course, they say “No” to virtually everything Obama proposes, don’t they? “We oppose comprehensive campaign reform. Mr. Obama, we want you to forget your campaign promise and strengthen border enforcement. Just build the dang wall–forget about comprehensive.” Now who is actually obstructing efforts to solve the immigration problem–the Republicans who just say “No” or the Democrats who have proposed (and promised their supporters) comprehensive immigration reform?
July 28, 2010, 8:16 pmcboldt says:
I’m reading some debate in the Congressional Reporter, and to the argument that this is a dispute between executive policy and state law; Senator Sessions suggests that the president should be asking for more money and resources, if he lacks the funds and other resources it takes to enforce the law.
July 28, 2010, 8:28 pmAlan says:
Please tell us what the Federalist Papers have to do with any of this. Applying Supreme Court precedent, which District judges are bound by, the judge reasoned that key parts of the law are to be blocked. What exactly was wrong with here reasoning as you see it?
July 28, 2010, 8:31 pmProving Lindgren's point about comments says:
Perhaps if you googled for a few more seconds Mr. cross, you could find a link that details an instance where the Bush administration announced a federal policy that was contrary to existing federal law. Such would be the position of the current administration in the matter we are discussing. The link you have provided details no such efforts.
July 28, 2010, 8:31 pmohwilleke says:
Pre-emption is the notion that state law is inconsistent with federal law.
But, a little more than simple supremacy clause analysis motivates the way that doctrine is applied here. What makes state laws on immigration and nationality different is that immigration and nationality are the exclusive province of the federal government. State governments do not have the legislative jurisdiction to set the nation’s immigration and nationality policy. So, any changes in the rights that flow from federal immigration and nationality laws are beyond its jurisdiction.
In particular, many provisions enjoined appear to burden and restrict the rights of legal immigrants who claim their legal status as a matter of federal right. For example, nothing in federal law suggests that legal immigrants are required to carry legal status papers on their person. These provisions are beyond the authority of Arizona’s legislature to enact because the deny legal immigrants the right to be equal under the law in all respects except those that are specifically a function of citizenship under federal law.
The extent of the burden or restriction on the federally granted rights afforded to legal immigrants doesn’t really matter. If the rights are burdened or restricted, they are inconsistent with federal law and pre-empted.
This is quite different from the usual pre-emption situation where the federal and state government have overlapping authority to regulate a matter. There as long as a state requirement is not actually inconsistent with the federal requirement, it is upheld.
For example, it isn’t necessarily inconsistent to require a business to comply with both state nuisance and zoning laws, and federal environmental laws, even though they may apply to the same conduct. Usually, it is isn’t inconsistent for states to impose a higher standard for conduct in their state than applies locally.
But, in the immigration context, the state law is only consistent with the federal law if it imposes precisely the same restrictions and burdens on individuals on federal law because states don’t have the authority to set those standards in their own right.
July 28, 2010, 8:34 pmohwilleke says:
The U.S. constitution goes to great length to spell out the relationship between federal and state powers over state militias. State militias are expressly authorized.
In the area of immigration and naturalization, the federal government has exclusive and plenary power, and even state citizenship is constitutionally defined to consist of U.S. citizens who reside in that state and thus, largely removed from state jurisdiction except insofar as states must operationalize the definition of “resides.”
July 28, 2010, 8:39 pmguest101 says:
I haven’t read the opinion and don’t know or particularly care if it’s right. I figure this will eventually be resolved by the Supreme Court, no matter which way the district court had come out.
What interests me more are the politics. The Obama administration apparently thinks (judging by the commentary, anyway, I don’t have any first-hand insight into what the administration actually thinks) this is a way to garner Latino votes. Is that right? Are Latinos who are here in the country legally for or against immigration laws that make it harder for illegals to enter? As someone married to a legal immigrant, I can say there is not alot of sympathy among legal immigrants for illegal ones. And what about poorer US citizens or legal residents whose jobs and wage levels are threatened by illegal immigration? Traditionally I would expect these voters to vote Democrat. How does this decision play in that constituency? Do they care? What about ordinary middle class citizens along the border whose communities and property values are threatened by the influx of low-skilled itinerant day laborers? What about voters far away from the border who simply object to how illegals take advantage of US social welfare programs?
Here in Northern Virginia, I live across the street from a “safe house” for illegals and it’s given me a different perspective on this than I had before. Basically, there’s contant noise and activity late at night, there’s been a noticeable increase in criminal activity (drug dealing), the police are around a lot and my family doesn’t feel safe. The house is a total mess even from the outside and the owners (whoever they are, maybe some unscrupulous white landlords) make no effort to upkeep or control the tenants. It’s made me more sympathetic to the people of Arizona who support and want to implement their law. I can understand why they are furious with the feds for essentially doing nothing except tying their hands.
This is one sided, of course, but I’m curous about what readers on the other side might think or react to this. I’m not sure the politics work quite as well for the Obama administration as it thinks.
July 28, 2010, 8:42 pmohwilleke says:
The desire to pass a law has very little to do with results.
It has everything to do with creating a state image as hostile to immigrants and claiming political credit for favoring citizens over non-citizens.
Honestly, nativism is a bias built into any political system where citizens can vote and non-citizens can’t (which incidentally isn’t universal, in New Zealand, for example, immigrants who have resided in the country for more than a year can vote even if they are not citizens).
July 28, 2010, 8:44 pmDilan Esper says:
Only the federal government has the power to print and coin currency. If an Arizona policeman stops an individual for speeding and has reason to believe that the shopping bag full of hundred dollar bills on the front seat is counterfeit, should the policeman detain the individual and contact the Secret Service or would judge Bolton consider that an “undue burden”?
Better hypothetical: suppose that due to our failing economy, the Obama administration decides to loosen enforcement of counterfeiting laws as a way to stimulate the economy and increase the inflation rate. Gold standard advocates in the Arizona legislature don’t like this and pass a law imposing draconian penalties on counterfeiters and granting local law enforcement broad powers to search and detain to detect counterfeiters.
Obama administration files suit in court, saying that Arizona’s law undermines the federal effort to stimulate the economy, which is a valid exercise of federal power under the Coin Money clause of the Constitution.
Do they win?
July 28, 2010, 8:46 pmOrson says:
It’s TIME for WAR against the federalistas.
If its agents are going to be unserious about the rule of law,
July 28, 2010, 8:47 pmthen we have the American right to be unserious about their legitimacy.
ORID says:
I think Arizona ought to simply make the argument that it’s unconstitutional and impossible for the Federal Government to occupy the “field” of “unlawful aliens”. I don’t see why this would be all inconsistent with Federal Government occupying the “field” of “immigration” (which is a determination of who should and not be in the country). For sure the immigration laws are regulations of immigrations; but they are not a comprehensive regulation of “unlawful aliens”, otherwise they would deal with the types of issues that the states are dealing with right now that are problematic.
I think the immigration case law is quite messy and disorganized. There was one case-law that said public funds could be spent on health care for illegal immigrants, because the law doesn’t exempt it. Using that logic we could provide health care to terrorists and enemy combatants using public funds as well.
There is a compelling national interest in this, so I think the Supreme Court needs to take the case. This could’ve been settled a bit more with Prop 187 from California, and the other Arizona case (Candeleria) will settle it some more.
But clearly, if this is a pre-emption issue; the Federal Government de facto hasn’t been occupynig the field even if it should. I asked up thread and I’ll ask again, are there cases where even if it is pre-empted states can still take action? I thought I read during this debate that the answer was yes… certain cases.
I think this is one of those cases. When you have 15 Million illegals and you can only deport a fraction, and more come in… not occupying the field.
July 28, 2010, 8:52 pmohwilleke says:
The Arizona law specifically affects both legal and illegal immigrants, and also appears to sanction some level of racial profiling based on apparent Hispanic ethnicity. Thus, it hurts everyone who is Latino who happens to be in the state of Arizona, and it reaffirms the notion that Republicans in general hate Latinos in general, while Democrats have their backs.
So, yes, it is a good way to garner Latino votes not just in this election cycle, but in the long run by establishing a Democratic party political identity for a large and growing group of voters.
The kind of blunderbuss anti-legal immigrant, anti-illegal immigrant, anti-”foreign looking people” law that Arizona has passed is one of the important reasons that the Democratic party does well with minority groups of all types, even when they aren’t “naturally” Democrats.
For example, many Latinos have quite conservative family values and are either Pentecostals (i.e. Evangelical Christians) or Roman Catholics who are religiously more conservative than the average American Catholic. But, the Republican share of the Latino vote has fallen and is quite low right now.
July 28, 2010, 8:52 pmShelbyC says:
Why does your hypo need draconian penalties? Why can’t they just pass a law requiring counterfeiters to be turned over to the secret service?
July 28, 2010, 8:54 pmBlue says:
Your premise is false. CIR won’t “solve” the problem. The amnesty will simply create new citizens out of lawbreakers and the enforcement provisions will be tied up in the courts by illegal alien activists and immigration lawyers. Then in 20 years, we’ll do it all over again.
July 28, 2010, 8:54 pmOrson says:
Causus bellum
July 28, 2010, 8:56 pmohwilleke says:
We do. Do you think that people detained in Baghram or serving sentences for terrorism in federal prison are receiving health care because they pay premiums to Blue Cross and Blue Shield? Do you think that the U.S. is not providing any health care to people it incarcerates?
July 28, 2010, 8:56 pmLevi Swank says:
Doesn’t this hypo still conflate law with policy (as a previous poster mentioned)?
July 28, 2010, 8:59 pmbyomtov says:
Also, what about (for example) British tourists? The federal government does not even require them to have a visa, so how are they supposed to prove their legal status without being detained?
Easy. They’re probably white, and they speak English.
Indeed, white English speakers are probably never going to be detained on suspicion of being in the country illegally.
July 28, 2010, 8:59 pmProving Lindgren's point about comments says:
It has everything to do with creating a state image as hostile to immigrants and claiming political credit for favoring citizens over non-citizens.
Hostile to immigrants or hostile to illegal immigrants? Can you not see a distinction or do you see it, but ignore it in a pathetic effort to impugn the motives of people with whom you disagree?
July 28, 2010, 9:00 pmjosh says:
guest 101
Read Section III(B)(2) of the opinion. While I think any political action is motivated by voter attraction, I do think there was some concern about the intent of the law as originally written. Section 2(B) of the statute originally said immigration papers should be checked upon any lawful “contact.” There was some justifiable concern about stopping anyone walking down the street and demanding papers, and the change from “contact” to “lawful stop, detention or arrest” does not seem to save the statute in the court’s eyes.
As far as how legal immigrants feel about this, I can only point to this link: http://tiny.cc/xkf9j, which indicates that the average 40-year-old British engineer has to wait an estimated 6 months to get a green card to enter the US legally, while the average 30-year-old Mexican with a HS diploma and a sister who is a US citizen has to wait 131 years. Perhaps our doling out of rights to enter this country are a bit unequal?
July 28, 2010, 9:00 pmChris says:
So now that the court system has assisted the federal government in absconding its duty to uphold the law, it is time for Arizona under its powers to engage in war when actually invaded as is specified under Article 2 Section 10. AZ should immediately mobilize its national guard and call up a volunteer militia and repel the invasion that is happening to it.
Since the people invading its borders are doing so with all but the written permission of Mexico, there is no way to consider this anything but a state sponsored invasion.
July 28, 2010, 9:01 pmBen says:
No. If we’re in an area of solely federal competence (and immigration is such an area) and the federal government has occupied the field, that’s game over. Hines and De Canas both say this explicitly. That said, not all state legislation will trigger a presumption in favor of preemption. For example, legislation in an area where a state traditionally has a strong interest but that touches indirectly on aliens (such as employment, see De Canas) is presumptively not preempted.
Part of the problem Arizona had here is it was trying to either enforce or set immigration policy (depending on how you look at it). Governor Brewer and various state legislators said as much. They never claimed an area of state competence was implicated, which is why I find it so strange to hear commentators frame Bolton’s ruling as an attack on states’ rights.
July 28, 2010, 9:02 pmohwilleke says:
The government’s track record and the DOJ’s effectively unlimited capacity to litigate cases means that federal judges normally defer much more strongly to federal arguments in preliminary matter than they would to private litigants.
Keep in mind that the DOJ litigates the entire criminal caseload, plus all federal party cases, which make up more than half of all U.S. District Court litigation, and the federal government wins well over 90% of those cases with modest modifications in the relief granted from time to time. Government doesn’t always win, but it usually does.
Indeed, the U.S. Supreme Court frequently asks the U.S. Solicitor General’s opinion before deciding whether or not to take up an issue at all, and that opinion matters much more than that of private litigants, which is why the post of Solicitor General is frequently called “the tenth Justice.”
July 28, 2010, 9:02 pmjosh says:
Orson sez “It’s TIME for WAR against the federalistas.
If its agents are going to be unserious about the rule of law,
then we have the American right to be unserious about their legitimacy.”
I say, Holy crap!
July 28, 2010, 9:03 pmohwilleke says:
If you were really serious and took action on that belief, you would probably be guilty of treason.
July 28, 2010, 9:05 pmjosh says:
Chris, too, although I think his proposal that Az take up arms against Mexico would be preempted by Congress’ constitutional war-making powers.
Take that, Sacrasto!
July 28, 2010, 9:05 pmohwilleke says:
“Hostile to immigrants or hostile to illegal immigrants? Can you not see a distinction or do you see it, but ignore it in a pathetic effort to impugn the motives of people with whom you disagree?”
The law expressly imposes additional duties and restrictions on legal immigrants and people suspected of being illegal immigrants based on race to the extent consistent with federal and state case law (which permits consideration of race in such matters). So, both.
The Arizona law fails to make the distinction.
July 28, 2010, 9:08 pmfrankcross says:
The Bush Administration did not propose any policies contrary to federal law, Proving. Nor has the Obama Administration in this case proposed a policy contrary to federal law. I don’t think you know the facts, do you?
July 28, 2010, 9:10 pmohwilleke says:
Obama’s administration is deporting people at a rate higher than any prior administration (about 400,000 per year), and has a higher level of employer enforcement actions (although not workplace rates which make up less than 1.5% of all deportations even at their peak), than any prior administration ever. The Obama administration is also pushing forward with the Border Fence.
The number of illegal immigrants in the United States has fallen about 20% since Obama was elected.
July 28, 2010, 9:13 pmohwilleke says:
This case deals with a law that imposes a duty on aliens admitted to stay to carry papers on their person and authorizes warrantless searches of aliens admitted to stay in circumstances where they would not be permitted for U.S. citizens. The court has to deal with the case before it, not some hypothetical case that is cleaner.
July 28, 2010, 9:19 pmRobbie says:
Federalist #27 by Alexander Hamilton
merits particular attention in this place, that the laws of the confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of, all officers, legislative, executive, and judicial, in each state, will be bound by the sanctity of an oath. Thus the legislatures, courts and magistrates, of the respective members, will be incorporated into the operations of the national government, as far as its just constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws. Any man, who will pursue, by his own reflections, the consequences of the situation, will perceive, that if its powers are administered with a common prudence, there is good ground to calculate upon a regular and peaceable execution of the laws of the union.”
Should be read by all libertopians and members of the La Raza Amen choir.
July 28, 2010, 9:20 pmProving Lindgren's point about comments says:
The number of illegal immigrants in the United States has fallen about 20% since Obama was elected.
Nor has the Obama Administration in this case proposed a policy contrary to federal law.
And then we descend into farce.
I’d like to leave one more question for anyone with a preemption background. Given that this preemption is based on “policy” and not statutory law- is this ruling immediately void once a subsequent administration details a new policy?
July 28, 2010, 9:24 pmSonicfrog says:
I found my answer. The RI 2008 executive order involving immigration enforcement is different from what they’re trying to do in AZ. It’s less stringent, and it doesn’t force every cop in the state to become an immigration enforcement officer. Details here.
July 28, 2010, 9:26 pmJeff Semenak says:
Instead of Hines, Plyler v. Doe would seem to be more on point here.
As far as substantial goals of the state, an inter-active map for your edification.
http://www.judicialwatch.org/story/2009/jun/phoenix-az-drophouse-map
Crime stats and reports courtesy of Phoenix PD.
July 28, 2010, 9:29 pmBC says:
Multiple citations needed.
July 28, 2010, 9:34 pmHercules says:
Very interesting comments section. Not a lawyer here.
I sure would like to hear what the Arizona Law prof’s, who supposedly help draft the law in question, think about Judge Bolton blocking the so-called “vague” parts of this law. I’m sure I read somewhere that these Men of the Law took every possible arguement the DOJ can throw at it before Jan Brewer signed it into Arizona law.
July 28, 2010, 9:35 pmRobbie says:
If a local or state jurisdiction authorizes officers to arrest people passing counterfeit money, does that mean they’ve been “forced” to become Secret Service agents?
If they arrest people for federal law illegal machine guns or hand grenades, have they been “forced” to become BATFE agents?
July 28, 2010, 9:36 pmDilan Esper says:
Doesn’t this hypo still conflate law with policy (as a previous poster mentioned)?
No. It explicitly shows you why there isn’t an independent constitutional power of states to enforce their interpretation of federal law when it conflicts with federal policy.
Again, to put it another way, if the President isn’t enforcing the laws, the Constitution says you can impeach. It doesn’t say states can purport to pass laws inconsistent with federal enforcement priorities.
July 28, 2010, 9:39 pmfrankcross says:
Proving, you’re sort of embarrassing yourself, but I will answer the question. Yes, if a succeeding Administration reversed the policy, it would also reverse the preemption effect.
Now, you can’t tell me how the Obama policy is contrary to federal law, can you?
Obama’s deportations are several times higher than the rate in the Bush Administration. Rather than being lazy, why don’t commenters do their own research. Or just be better informed people.
July 28, 2010, 9:43 pmRobbie says:
Ha Ha! Deporting a whole 400k per year when there are already tens of millions here and about a million new illegal entries per year doesn’t impress. Sorry. Claiming Obama is “better” than Bush Is a bit like claiming that Mussolini was “better” than Hitler. It’s both true and utterly ridiculous.
July 28, 2010, 9:45 pmJeff Semenak says:
From the decision….
*scratches head*
July 28, 2010, 9:59 pmLouis Cypher's Attorney says:
National Review’s “The Corner” has some commentary on the issue that at least looks reasoned (even if you don’t agree with it). I’d recommend it to those pondering Judge Bolton’s decision. (See particularly, I think, Heather Mac Donald’s commentary).
July 28, 2010, 10:05 pmnavtechie says:
Or, we just need enough states to tell the Feds “sorry, you no longer exist. Toodles!”
wishful thinking, I know, but one can dream.
July 28, 2010, 10:08 pmRobbie says:
Yeah. Current Federal law, passed by a Democrat House and Senate and signed by President FDR in 1940, requires all legal non-citizens to carry their paperwork at all times and present said paperwork to any LEO when asked. According to judge Bolton, requiring foreign nationals to comply with U.S. law constitutes an “undue burden”.
July 28, 2010, 10:09 pmTodd Klimson says:
I understand preemption and maybe the AZ law is inconsistent with precedent, but the key point is…… It’s a start. The “people” (lest the government forgot) can sway politicians to change law. Of course the US government is going to stand up as if they care what just happened and flex muscle. If the US Government was successful in curbing illegal immigration in the first place, this never would have happened. They have to save face. I will definitely watch the case as it weaves it’s way through the cluster”F&*$%” court system. Arizonans are scared shitless about drug smugglers trespassing on their property and threatening to eliminate the US CITIZENS if they interfere. That’s why the AZ law was signed into AZ law. By the way, have you heard of fedralism?
July 28, 2010, 10:19 pmDilan Esper says:
Yeah. Current Federal law, passed by a Democrat House and Senate and signed by President FDR in 1940, requires all legal non-citizens to carry their paperwork at all times and present said paperwork to any LEO when asked. According to judge Bolton, requiring foreign nationals to comply with U.S. law constitutes an “undue burden”.
Many aliens, as well as many Americans who travel to foreign countries, would tell you that it is indeed burdensome to carry difficult to replace and easily lost or stolen documents everywhere you go.
That is a law that has always been honored in the breach, and indeed, part of the problem here is that Arizona wants to change a federal policy of honoring such laws in the breach.
July 28, 2010, 10:21 pmRoscoe says:
I’ve read the entire ruling, and can say with confidence that it’s one of the most incoherent constitutional rulings I’ve seen in my three decades practicing in the federal courts. She starts out right, acknowledging that a facial challenge requires proof that the law will operate unlawfully in every instance of its enforcement or application. Then she goes haywire, and bases her rulings on “burdens” that might result, in situations that might conceivably occur. One is left wondering whether she ever read the parts of her own order correctly stating the legal standards.
The issue of standing is not addressed directly in any part of the order. It’s addressed indirectly in ridiculous reasoning that the federal government is “injured” by the administrative “burdens” of receiving information requests. To find any such “burden” one must presuppose that the federal agencies have a legal obligation to respond to the requests for information. If they don’t, then the reasoning is just stupid. But if they do have a duty to respond to those requests, this amounts to a ruling that federal agencies have constitutional protection against law that has the indirect effect of requiring them to do work that Congress itself has commanded them to do. And that is one of the more sterling bits of reasoning in the order.
July 28, 2010, 10:23 pmFederal Farmer says:
Why don’t you read up on how green cards are granted. It is lottery-based and no more than 7% in a year can come from any one country. All your 6mos versus 131 years really means is that far more people are attempting to come from Mexico than England.
July 28, 2010, 10:30 pmfrankcross says:
Roscoe, I don’t think your post makes much sense. Congress has authorized the Executive to enforce immigration laws. Congress has not commanded them to enforce those laws at any particular level. There is no “work” that Congress has “commanded them to do.”
Let me make an analogy. Environmental laws are tremendously underenforced. Vast numbers of violations are not caught. Of those that are caught, penalties are typically far less than those authorized by law. That’s fine. Nothing in the law requires the executive to maximize enforcement. Likewise with immigration law.
July 28, 2010, 10:51 pmLouis Cypher's Attorney says:
That’s funny. In many countries you are advised to carry your passport, or at the very least a copy of it, at all times. I guess it just depends on where you go.
July 28, 2010, 10:51 pmJ. Aldridge says:
Bolton appears to have left existing discretionary power to verify immigration status intact (footnote 12) and only enjoined the mandate. Not sure if this is a big win for illegals as it is made out to be.
July 28, 2010, 10:55 pmProving Lindgren's point about comments says:
Proving, you’re sort of embarrassing yourself, but I will answer the question. Yes, if a succeeding Administration reversed the policy, it would also reverse the preemption effect.
You’ve just announced that a federal judge is insisting that whether or not a state statute is preempted by federal law depends on who the president is and you’re talking about me embarrassing myself? I think in the “WTF were they thinking” archive my name won’t show up in bold print under today’s heading.
Now, as far as embarrassing ones self, are you honestly trying to argue that the Obama administration policy with respect to immigration is consistent with existing federal law? Because that would be pathetic.
July 28, 2010, 11:02 pmcboldt says:
– Roscoe, I don’t think your post makes much sense. –
July 28, 2010, 11:05 pmThe impression varies quite substantially, depending on whether the command is “respond to an information request” vs. “remove or deport.” The information request is an interagency activity, not the government imposing a penalty on a person.
Thor's Mjollnir says:
Hines v. Davidowitz
July 28, 2010, 11:17 pmCongress passed the Alien Registration Act, which required aliens to register with INS. Pennsylvania passed a law requiring all aliens to register with a state agency. SCOTUS held that the Pennsylvania law preempted because the federal government’s role in immigration and foreign relations, and Congress’s decision to enact a complete scheme, make it clear Congress intended to preempt states registration laws. Two noteworthy points. The first is that the Court found preemption even though the Pennsylvania law did not interfere w/ federal law, but merely complimented it. The second is that it created the notion that field preemption can be implied and does not need to be expressed by Congress
K.Chen says:
Even if there isn’t conflict preemption, isn’t the *entire* Arizona law field preempted? I imagine there is ample evidence that the Federal government has shown its intent to occupy the whole field of immigration law.
I imagine it would also be an infringement of the sovereignty of the United States for its constitutional parts to try to regulate immigration.
July 28, 2010, 11:22 pmrpt says:
Yeah, who needs I-10 anyway?
July 28, 2010, 11:23 pmAlanDownunder says:
This is about the preceding post, where comments are now closed, but I must go off topic here to register my deep appreciation of, and thanks for …
July 28, 2010, 11:44 pmJoe says:
Simplier: “Very briefly, this is what she said. Can’t really say anything about it, but unlike some, that will stop me from saying more. Go at it, including those not as honest about their ignorance as I.”
July 28, 2010, 11:53 pmCockleCove says:
Robbie, I’m not entirely certain what point you’re trying to make, but I can tell you this: New York police officers aren’t acting as “agents” of the Feds when they arrest someone who is, e.g., passing phony money or in possession of hand grenades; those are criminal offenses under New York’s own penal code.
July 29, 2010, 12:09 amjuris imprudent says:
ohwilleke sez For example, nothing in federal law suggests that legal immigrants are required to carry legal status papers on their person.
The USCIS sez: A green card is issued to all permanent residents as proof that they are authorized to live and work in the United States. If you are a permanent resident age 18 or older, you are required to have a valid green card in your possession at all times.
So, exactly what burden did the AZ law, that echoed the federal rule, place on immigrants – legal or not?
July 29, 2010, 12:19 amORID says:
I concede AZ didn’t invoke police powers. Clearly Obama’s policy doesn’t conflict with law. However, just like states can have parallel statutes, with respect to illegal presence, I think it will be severed and the Supreme Court will not treat that as part of a comprehensive immigration scheme. Thus, illegal presence is like federal drug law. It would be nstitutional invasion on states police power. Illegals aren’t submitting to the immigration scheme.
July 29, 2010, 12:36 amRicardo says:
My understanding is different. The cases you cite (VWP visitors, asylum seekers, etc) are all cases explicitly authorized by federal law. For instance, asylum seekers are governed by 18 USC 1158. Part (d)1 simply says, “The Attorney General shall establish a procedure for the consideration of asylum applications filed under subsection (a) of this section. The Attorney General may require applicants to submit fingerprints and a photograph at such time and in such manner to be determined by regulation by the Attorney General [emphasis added].”
The law really defers to the AG on how to handle asylum applications and what registration procedures shall be used. It seems to me that this simply overrides the registration requirement or at least creates enough ambiguity in the law that asylum seekers could not be punished for not having alien registration documents if they make a good faith effort to do as they are told by immigration officials. The flaw, if any, is in the law.
The real issue here is that immigration law is a bit of a mess and that’s why we have two separate federal agencies devoted full time to enforcing immigration law (CBP and ICE). Asking Arizona cops to become familiar with all the nuances of federal immigration law is asking too much.
July 29, 2010, 1:00 amRicardo says:
Green cards are lottery-based when issued through the green card lottery. The green card lottery is not the only way to get a green card. In fact, both Mexican and British nationals are ineligible for the green card lottery and must apply under a different scheme (such as having a spouse or relative who is an American citizen or permanent resident).
July 29, 2010, 1:06 amRicardo says:
British tourists would have a passport with an entry stamp indicating when they were admitted and when they must leave by. I believe they are also issued an I-94W — they fill out one half and keep the other with their passport and hand it in to the airline or a nearby immigration office when leaving the country.
Without having read the opinion, I understand there is some ambiguity as to whether an I-94W in conjunction with an entry stamp meets the statutory definition of alien registration.
But an even more confusing case is that of Canadian tourists or business travelers. If they arrive in the U.S. at one of the land-crossings or at a seaport, they only have to show an “enhanced” driver’s license or a special border crossing card to enter the U.S. I don’t think there is any form to fill out and since no passport is involved there is no entry stamp to show. In short, there is no way to tell a legal from an illegal Canadian visitor by looking at their documents.
July 29, 2010, 1:19 amBen S. says:
This is a two-way street. Note that Obama and the liberal supermajority in Congress have failed to repeal the Patriot Act, close Gitmo, etc.
July 29, 2010, 1:20 amRicardo says:
This is false. A quick check on ICE’s page reveals they have a list of local law enforcement agencies that participate in the 287(g) program. That list includes AZ Department of Corrections, AZ Department of Public Safety, City of Phoenix Police Department, Maricopa County Sheriff’s Office, Pima County Sheriff’s Office, Pinal County Sheriff’s Office and Yavapai County Sheriff’s Office.
July 29, 2010, 1:31 amRicardo says:
But that is exactly the part of the law that was upheld. Police are free under this decision to contact ICE regarding the immigration status of anyone who has been arrested and is currently in custody or of anyone who has been convicted of a crime. They are further authorized to detain that alien and securely transport them to the nearest ICE facility for further detention or processing. These are covered by ARS 11-1051 sections C-F and can be enforced.
What the court did apparently say is that the state could not create an entirely new state crime that “piggybacks” off of the federal offense of failing to register. The creation of the state crime and the ability of local police to arrest people for violating the state law were what were struck down. Police can still cooperate with the federal government under the 287(g) program to enforce existing federal law or turn over anyone in custody for another reason if ICE confirms they are in violation of immigration law.
July 29, 2010, 1:52 amRicardo says:
Actually, it looks like the I-94W is being phased out in some airports. Instead, British nationals log onto ESTA and submit what amounts to an electronic entry form a couple of days before leaving for the U.S. Maybe ESTA amounts to alien registration but I don’t think there is any paper record of one’s registration status. All you get upon arrival is an entry stamp in your passport.
July 29, 2010, 2:08 amORID says:
But if the law creates a “uniform system” than there is an issue that some subset of people don’t fall under the documented category. I think it is the Attorney General, and the State Department that are deficient, because they are causing less uniformity.
You say nothing of my premise that the Federal Government cannot be pre-empted of laws that “regulate who can and cannot be allowed into the country”, but laws on illegal immigrants will simply be seen as an operation of police power rather than such regulation. Hines is clearly talking about legal immigrants. It doesn’t seem unnatural to me that aliens crossing into our border illegal is viewed as a domestic issue rather than one of foreign affairs.
Illegal aliens aren’t in line to become naturalized citizens. They are simply here unlawfully. Even the term “undocumented aliens” shows that there is a large group of aliens who aren’t part of the comprehensive Congressional scheme. So on the surface it may appear to be touching the same subject, it is not. The Arizona law would not stand as an obstacle to the Federal law.
Can anyone name treaties formally signed between the United States and other countries that talk about illegal immigrants? Have we signed a treaty with Mexico that allows its citizens to enter into America illegally at will? I just keep looking at Hines and can’t see where it pre-empts anything dealing with illegal immigrants.
Here are some quotes from Hines.
Legal imposition of distinct, unusual and extraordinary burdens and obligations upon aliens — such as subjecting them alone, though perfectly law-abiding, to indiscriminate and repeated interception and interrogation by public officials — thus bears an inseparable relationship to the welfare and tranquility of all the states, and not merely to the welfare and tranquillity of one.
July 29, 2010, 2:22 am…
With a view to limiting prospective residents from foreign lands to those possessing the qualities deemed essential to good and useful citizenship in America, carefully defined qualifications are required to be met before aliens may enter our country.
…
The national government has exclusive control over the admission of aliens into the United States but, after entry, an alien resident within a state, like a citizen, is subject to the police powers of the state and, in the exercise of that power, state legislatures may pass laws applicable exclusively to aliens so long as the distinction taken between aliens and citizens is not shown to be without rational basis.
…
Every Act of Congress occupies some field, but we must know the boundaries of that field before we can say that it has precluded a state from the exercise of any power reserved to it by the Constitution.
…
When it made this addition to its uniform naturalization and immigration laws, it plainly manifested a purpose to do so in such a way as to protect the personal liberties of law-abiding aliens through one uniform national registration system, and to leave them free from the possibility of inquisitorial practices and police surveillance that might not only affect our international relations but might also generate the very disloyalty which the law has intended guarding against. Under these circumstances, the Pennsylvania Act cannot be enforced.
ORID says:
This is from Page 17 of the ruling.
July 29, 2010, 3:03 amThus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities.
…
Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established.
bhaal says:
The I-94W is not an alien registration card because it’s not mentioned in the list of alien registration cards in the Code of Federal Regulations.
Therefore, failure to carry it is not an offence – §1306(a) only criminalises an alien registration card that is issued pursuant to §1304(d). As an I-94W is not an alien registration card, no card has been issued and there’s no offence if you don’t carry it.
If I’m wrong about that, and I may well be, then you’ll free to publicise the facts that us Brits have to carry our valuable and difficult/expensive to replace passports with us at all times when visiting your fair country but tourism numbers will plummet. In other words – if you want our money, be sensible.
July 29, 2010, 3:09 amRicardo says:
The court seems to use the word “uniform” to mean “not varying from place to place.” The current hodge-podge of federal laws is indeed comprehensive: every alien physically present in the U.S. has to make a representation of some kind to a federal official in order to be authorized to remain in the U.S. And it is uniform in the sense that the requirements and penalties do not vary from place to place. Since the AZ law imposes additional penalties on some aliens who are physically present in AZ, that creates a non-uniformity.
I simply do not see the argument for how the AG can be deficient in the manner of alien registration. The law clearly states “the Attorney General may require” registration [for asylum seekers], not “the Attorney General shall require” it. The deficiency is with Congress for not mandating uniform (again, we are using the word in a different sense here) registration requirements for asylum seekers or VWP applicants. Get Congress to change the law if you don’t like it. As long as the law stands, though, certain aliens are perfectly free to not carry alien registration documents with them and the government is free to not issue such documents to them.
As for your second response, as I pointed out, the court specifically upheld ARS 11-1051(F). Section F states “EXCEPT AS PROVIDED IN FEDERAL LAW, OFFICIALS OR AGENCIES OF THIS STATE… MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING, RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION STATUS OF ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY OTHER FEDERAL, STATE OR LOCAL GOVERNMENTAL ENTITY FOR THE FOLLOWING OFFICIAL PURPOSES…
“IF THE PERSON IS AN ALIEN, DETERMINING WHETHER THE PERSON IS IN COMPLIANCE WITH THE FEDERAL REGISTRATION LAWS PRESCRIBED BY TITLE II, CHAPTER 7 OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT.”
The court struck down the mandatory immigration check and the ability to detain someone under reasonable suspicion of violating immigration law (Section (B)) but still leaves the police with the ability to check on people who come to the attention of the police. They just cannot detain the individual while the check is being done nor can they arrest someone solely on account of violating federal immigration law. What I wrote above is consistent with this since police are not required to check immigration status — merely that they are free to subject to federal law.
July 29, 2010, 3:29 amORID says:
Okay.
I agree a change to law is necessary.
Adding one paragraph to vacate the pre-emption in criminalizing employer-employee statutes would do it, as well as one paragraph vacating criminal sanctions for illegal presence (with maximum penalties). That would make me happy.
I do agree with the judge to some extent. I think the question is whether Federal policy is allowed by law. Clearly it is. And clearly I don’t think AZ should inundate DHS with verification requests… although I’m not really sure I buy the logic. Wouldn’t a single instance of a non-criminal being deported show that the argument of Federal “priorities” is a joke? Which I think it is, at least in this instance. I think an as-applied challenge is more useful rather than a facial challenge in that sense.
Certainly I agree that Hines does pertain to legal immigrants, and to the extent this law would inconvenience them… I agree with. Although it would similarly inconvenience citizens as well… I suppose that’s the point.
July 29, 2010, 3:42 amRicardo says:
Interesting, so there really is no legal registration procedure for VWP visitors. Of course, if one has a visa to go to the U.S. (for study or work, for instance), then registration happens at the time of visa application (18 U.S.C. 1201(b)).
Again, I think the court is right that it is unreasonable to expect AZ cops to know who is or is not required to register and to enforce those registration requirements. Some cops apparently have a difficult enough time enforcing “disorderly conduct” laws. Asking them to enforce immigration laws is going to lead to lots of people being wrongly detained.
Apparently, there is no legal requirement on Americans (and probably other foreigners) visiting the U.K. to have their passports with them at all times so fair enough.
U.S. State Department travel advisory on the U.K. states, “Visitors in England, Scotland, Wales, Northern Ireland, and Gibraltar are not expected to produce identity documents for police authorities and thus may secure their passports in hotel safes or residences.”
July 29, 2010, 3:50 am1040 says:
i am sympathetic on gitmo because of the logistical difficulties in unraveling the legal and political nightmare created by the previous administration (although obama deserves at least some of the criticism because he so loudly set expectations that he would close it in the first year), but there is no excuse for the patriot act. or renditions. or the ever expanding power of the executive (although, maybe, that is just the natural, and tragic, progression of things with a senate that cannot seem to muster political will on anything remotely consequential).
July 29, 2010, 5:33 amDavid M. Nieporent says:
Dilan, Dilan, Dilan. States do not derive their powers from the Constitution. They have general police powers. Unlike the federal government, they can do everything not expressly forbidden to them.
Now, I suppose the federal government could pass a law providing that states may not enforce immigration law; in that case, states could not do so. That’s the Supremacy Clause. But in the absence of such a law, nothing in the Constitution forbids the states from doing so. (*) Nothing in the Supremacy Clause makes “executive branch determinations” or federal “policy” supreme over state law. (That’s what I mean about the text of the Constitution, Dilan. The Supremacy Clause isn’t a mere concept. It’s a specific set of words.)
Moreover, nothing in what Arizona is doing “overrides” anything at all. If the president decides he doesn’t want to detain or deport illegal immigrants, he can refuse to do so. Arizona is not “overriding” that decision. They’re not forcibly compelling him to deport these people; he can order ICE to release them the minute Arizona turns them over, if he chooses. Nor are they circumventing him and deporting these people on their own.
(*) I’m using this framing, but the states aren’t “enforcing immigration law” per se. They’re not trying to deport people, for instance. If they happen to catch an illegal immigrant in the course of their ordinary law enforcement, they’re turning those people over to the federal government. It’s hard to even begin to fathom how that could be unconstitutional or illegal.
July 29, 2010, 8:20 amHa says:
It’s not that difficult. Arizona can enforce conduct laws (as long as it provides equal protection and due process) but here it is trying to enforce laws regulating status, on a suspect class, in an area preempted.
July 29, 2010, 9:09 amcboldt says:
– Moreover, nothing in what Arizona is doing “overrides” anything at all. If the president decides he doesn’t want to detain or deport illegal immigrants, he can refuse to do so. Arizona is not “overriding” that decision. –
I think Arizona is overriding a “no detain” decision, as it has state detention penalties that it can enforce. Agreed that Arizona can’t deport out of the country, but states do, AFAIK, have the power to remove undesirables, even if they are US citizens.
I wonder about the extent of state police power in the event the federal government admits all comers and deports nearly none (except extreme offenders, e.g., spies and terrorists); either by statute, or by policy.
July 29, 2010, 9:22 amCalderon says:
frankcross says:
Proving Lindgren, you can google as well as I can, and this is not a secret.
It first came of issue in the Reagan Administration and was discussed in various articles, one being 70 Va. L. Rev. 1429. A more recent liberal complaint about the Bush policy can be found at http://www.justice.org/cps/rde/xbcr/justice/Truth_Torts_704.pdf.
Ten seconds of googling for you.
Professor Cross, I enjoy your comments and am always glad when I look through the comments and see that you’ve chosen to share your thoughts. That said, I’m not sure the article and complaint you cite above address the issue raised by Proving Lindgren.
My understanding of the issue (though maybe I’m wrong on the immigration laws) is that there are a set of federal immigration laws that do not discuss pre-emption, the federal government is not enforcing those laws as much as Arizona would like, and the question is does the federal government’s decision to have a certain level of enforcement pre-empt a State’s decision. From my brief read of the two sources you cite, the Virigina law review article addresses agency pre-empting state statute where the federal law expressly provides for pre-emption and for the agency to make decisions and regulations pursuant to those federal laws. The “liberal complaint” is about whether administrative regulations should pre-empt state tort law (as opposed to state statutory law). Neither one seems on-point to the question here.
While Dilan and DMN have also sparred on this issue, does anyone actually know if there’s any case law holding whether a federal enforcement policy, which is not pursuant to an express pre-emption clause and/or an encated regulation or other final agency action, pre-empts state law?
July 29, 2010, 10:06 amORID says:
I wonder about the extent of state police power in the event the federal government admits all comers and deports nearly none (except extreme offenders, e.g., spies and terrorists); either by statute, or by policy.
My point is that the federal government isn’t “admitting” these people. I honestly do believe that some higher court will rule that states can exercise police power of illegals and it’s not pre-empting anything.
Nothing would prevent Arizona from establishing a law that forces illegal immigrants from registering. This is an area it is impossible for the Federal Government to occupy completely. Yes, I am arguing that part of what ICE does when they remove illegals is “police power”, but in light of the Constitution which provides for a “Uniform Rule of Natrualization”; what do we do about people who have not submitted themselves into this country under the “uniform rule of naturalization.”
The Executive Branch cannot claim it is acting on the basis of a treaty either. There is no treaty which provides foreign citizens will be de fact protected from entering the country illegally. Such a treaty would be ludicrous.
This is simply an interesting theory right now, but I don’t believe immigration law has matured. Certainly De Canas dealt with employer-employment, but I’m not sure there is good controlling precedent in this case that goes all the way up to the Supreme Court. Hines deals with a state trying to register legal aliens. Similarly National Center for Rights deals with employment issue.
July 29, 2010, 10:11 amcboldt says:
– My point is that the federal government isn’t “admitting” these people. –
July 29, 2010, 10:21 amUnderstood. And my hypothetical covers a wide range of fact patterns. In one of them, Congress would literally “admit,” as a matter of statutory law, all comers. No quotas, no nothing. Open border, no ICE, no visas. If you are in the country, you are legal. Nutty hypothetical, but used to probe the power of states as against the federal government.
Related to that is a definition of what constitutes invasion. I think the constitutional expression was mindful of invading armies, only, where the invader would impose its own government upon victory. Should another country decide to “take over” the territory peacefully, by immigrating hoards and using the vote, there would not be an invasion.
ORID says:
The judge’s ruling is that Congress intended and has pre-empted all laws relating to immigration (except for employee-employer ones related to the state). However, relating to those employee-employer laws, criminal penalties for employees are pre-empted (in spite of De Canas). I don’t see how mandatory e-verify isn’t pre-empted as well, yet that got upheld by the 9th circuit. I don’t think it’s possible to look at employer-employee relationship as anything but a relationship, e-verify will undoubtedly damage potential employees (I’m not sure if they were part of the case or if only the employers were).
Additionally, criminal penalties for illegals is pre-empted.
But I’m not sure now, does this mean that the Federal government can’t discriminate on who it accepts into the 287(g) program? There seems like there are all sorts of issues related to this case.
July 29, 2010, 10:21 amcboldt says:
– I don’t see how mandatory e-verify isn’t pre-empted as well, yet that got upheld by the 9th circuit. –
July 29, 2010, 10:27 amOne of the NRO Corner posts touched on the “burden to the feds” argument, relied on to reach the decision. I would think that mandatory e-verify for each hire would create more inquiries, than mandatory e-verify would for each police contact that includes a reasonable suspicion of being in the country illegally.
Ricardo says:
Sure it does. It is a civil offense for an alien to work without proper work authorization. S.B. 1070 made it a criminal offense to work or even seek work without work authorization. That overrides Congress’ apparent intent that working or attempting to work illegally not be a crime.
Certainly states have general police powers. But then the whole issue with preemption, as I understand it, is that a court must find that a given law fits within a state’s police powers to survive a preemption challenge.
July 29, 2010, 11:01 amRicardo says:
That’s not quite the case. Section 3 is the part that makes being illegally in the U.S. a state crime. But what it actually does is make it a separate state crime to violate either 18 USC 1304(e) or 1306(a) and be physically present in Arizona. So if section 3 establishes a status crime, so do 18 USC 1304(e) and 1306(a). It adds the element of being physically present in Arizona but that’s probably just to establish jurisdiction.
So the issues are whether immigration is whether a state can make it a separate state crime to violate federal law within the state and also whether immigration is preempted.
July 29, 2010, 11:17 amfrankcross says:
Calderon, they aren’t exactly on point because I wasn’t going to spend a lot of time doing research for him. But the second is almost exactly on point. Because there is no legal basis for distinguishing a state statute from state common law. So there’s no real difference
July 29, 2010, 11:17 ambhaal says:
It’s stunning that anyone is attempting to claim the Supremacy clause only concerns ‘law’ and not ‘policy’. The job of executing the law is given to the President – Art II §2. Without someone putting it into effect a law is just a piece of paper or letters on a screen. If the Supremacy clause did apply only to the law in theory or States were free to interpret it themselves then any State could apply their own interpretation of it, claim it wasn’t being executed properly and do it themselves, making a mockery of any kind of organised system of laws in the country. In order for federalism to actually mean anything there has the federal Executive has to decide how to execute the laws that Congress pass and those laws and decisions have to override inconsistent actions of the States. Reading the Constitution in the way suggested by some results in absurdity.
I agree with the poster above who said the proper remedy for a President who fails to execute the law is impeachment, albeit I think it would have to be in a far different way to the current case, where Republicans seem to be taking offence that *shockingly*, a Democrat has different priorities to their own. The last time I checked, despite their best attempts to do so with Clinton, holding a different opinion to your own is not an impeachable offence. If you don’t like the way the job President Obama is doing then work for someone else to be elected in 2012 but please, don’t come up with this crackpot, nonsensical and illogical constitutional theory.
July 29, 2010, 11:17 amGeorgiaDawg says:
I have to say I actually agree with something I heard Newt Gingrich say today:
If this ruling stands, Arizona should immediately sue the federal government for the costs these illegals impose on the state. If the fed can “occupy a field” and thus prevent the state from acting to protect itself while simultaneously refusing to enforce the law, Arizona’s hands are effectively tied and they are forced to simply absorb the costs imposed on it! It almost seems like a ‘de facto commandeering’ (to make up a phrase) of the states police power. Thoughts?
July 29, 2010, 11:37 amDavid M. Nieporent says:
That’s the logical conclusion if we follow the chain of reasoning — but doesn’t it expose why the argument doesn’t make sense? Only federal law (I include regulations duly adopted pursuant to federal law) — not presidential whim — can preempt state law under the Supremacy Clause.
Well, to the extent that his policy isn’t contrary to federal law, how is the Arizona law inconsistent with it?
July 29, 2010, 11:48 amORID says:
I previously questioned policy preemption, but I think the policy doesn’t conflict. A state can’t sue to have the executive branch enforce the law. This is why I think regulation of aliens not allowed into the country is outside the scope of the comprehensive immigration system.
But the policy doesn’t conflict with law… if the FedGov has Supremacy it means all branches. The law would still be preemptive, even if a new administration came in that had different policy.
July 29, 2010, 12:01 pmRicardo says:
Under what law?
If illegal immigration is within the state’s police power, it should have no trouble winning in federal court. But it would be awfully strange to say that SB1070 Section 3 refers to any traditional police power when it simply bans violating federal law. Pennsylvania v. Nelson is relevant here.
July 29, 2010, 12:03 pmCalderon says:
I took another look at the second one, and honestly don’t think it’s on point. The purpose of the liberal complaint was to distinguish between state tort law and statutory law for purposes of pre-emption: “The Court has recognized that positive law establishes standards of conduct by prescribing or proscribing certain actions, while tort law provides compensation after people are injured or killed by socially unreasonable actions. Because of these fundamental differences, tort law generally does not conflict with federal positive law—even when state positive law might.”
Moreover, the complaint/article discusses agencies using rulemarking to get state tort law pre-empted, often by argue that the regulatory statute’s express pre-emption provisions applied to the rule. My understanding of the Arizona case is that the immigration laws at issue is that no agency has enacted rules about the level of enforcement or what can and cannot be enforced, and that they do not have an express pre-emption provision. Thus, the circumstances seem legally distinct: one can imagine an agency being able to use a rule to pre-empt state law through a statutory pre-emption provision, but not being able to pre-empt state law simply by asserting an unenacted policy of enforcement where it does not have an express preemption provision to rely on. I’m still curious if anyone knows (and of course I’m not requesting research) about case law on the second point.
July 29, 2010, 12:14 pmcboldt says:
– I think regulation of aliens not allowed into the country is outside the scope of the comprehensive immigration system. –
July 29, 2010, 12:16 pmThere are many federal laws and regulation that directly address the handling of persons in the country illegally. That is part and parcel of the “immigration” system.
Absent remedies for failure to abide by immigration quotas and whatnot, the quotas and whatnot would be toothless. So what if you are here, outside of the quota, if the law provides no facility for removal, deportation, etc.?
Is there any conflict if the dispute is between AZ policy and federal policy? In other words, what stops AZ law enforcement from voluntarily undertaking the actions the state law made mandatory? Setting aside the penalties imposed by state statutes, of course.
Robbie says:
July 29, 2010, 12:26 pmPlugInMonster says:
This is a perfect case of conservatives hating the Constitution when it doesn’t serve their purposes. After this, I NEVER want a conservative to tell me that they are “originalists”.
July 29, 2010, 12:27 pmHa says:
Whether those are crimes or not, the point is that Federal policy gets to dictate the status and its burdens.
July 29, 2010, 12:28 pmCGG says:
Forgive me if these issues were raised in the above, I couldn’t make it through everything. Orin, thanks for the primer. I really think there are a few basic questions which would clarify this:
- I understand the fear of undue burdens being placed on legal resident aliens (who may be detained while their status is determined) and US Citizens (who aren’t even required to carry proof of status). But can the federal government sue to enforce this? Do they have standing or is the proper party individuals who risk detention? Is this even ripe yet?
- What is the administration’s ability to choose not to deport illegal aliens? I understand there are some humanitarian balancing concerns, but these seem rather narrow compared to actual practice. (E.g., I can see this where the US chooses not to deport an immigrant with a pending asylum petition, but I cannot see how this can be expanded to not deport anybody unless under certain circumstances). When can the executive choose not to enforce immigration statues?
To be sure, I believe that anybody who is not a terrorist or a criminal should be free to enter, live, work, and make their lives in the US. But that’s not the law we have. And I’m also a federalist, so this case bothers me.
July 29, 2010, 12:30 pmGeorgiaDawg says:
July 29, 2010, 12:32 pmRobbie says:
Where in the U.S. Constitution do you imagine state and local officials are forbidden from assisting in the enforcement of federal law?
Every freakin’ day state and local police arrest people for violating federal gun law, federal drug law and federal counterfeiting law.
Please quote the clause in the Constitution which you imagine uniquely forbids them from assisting in the enforcement of immigration law.
July 29, 2010, 12:34 pmDilan Esper says:
David:
The power to admit aliens is not part of the general police power of the states and is a plenary power of congress under Mathews. States ceded some powers to the national government when the Constitution was adopted and this was one of them. States also have no power to make foreign policy.
Like it or not, the Constitution is 100 percent clear that states have no power to override federal decisions on immigration law. What can be done is Obama can be impeached for failing to enforce the law. That’s your remedy.
July 29, 2010, 12:35 pmHa says:
Untrue. State police arrest people for state crimes and if there is a federal violation, they may choose to refer it to the FBI, ICE, Marshall Service, Secret Service, etc. (depending on the crime), and then those agencies affect a separate federal arrest, arraignment, prosecution, etc (if they choose to do so). On rarer occasions the feds pay locals to assist, or a joint task force can be created where state’s arrest for state crimes and feds arrest for fed crimes.
July 29, 2010, 12:45 pmDilan Esper says:
By the way, do the commenters who support the Arizona law believe that if the President decides to parole an alien into the country pending adjustment of status (as happens all the time with Cubans, asylees, and torture victims), Arizona has the power to repeatedly arrest and detain the alien until the adjustment takes place on the ground that the alien is technically undocumented. And if Arizona does not have that power, doesn’t that suggest that policy decisions of the executive can have preemptive effect?
July 29, 2010, 12:46 pmRobbie says:
Newsflash for Dilan;
1) Barak Obama is not “Congress”.
2) enforcing U.S. immigration law on U.S. soil is not “making foreign policy”
3) CURRENT FEDERAL LAW makes it illegal to enter the U.S. without permission.
4) unless and until Congress passes and the President signs legislation eliminating the border and abolishing immigration law, state and local government, as well as citizens, are free to assist in the enforcement of these laws.
July 29, 2010, 12:48 pmORID says:
What I’m saying is that “handling of people in the country illegally” is separate from “immigration”. The Courts always say something like “immigration” is a system set up that determines who can and cannot come into the country. This is done under the Constitutional authority to set up rules for naturalization. Yet, people coming into the country illegally aren’t interested in naturalization. So even if some immigration law must use that “police power”, this is part of the Federal Government’s power, and the states can have all the parallel laws they want dealing with illegals. It seems like a novel thought to me, and one that hasn’t been answered by any of the immigration cases put forth. I can see Scalia and Thomas grasping onto this. The Constitution only deals with people who want to be naturalized. How can you say that those who come into the country illegally fall into that category?
So, the “immigration system” would deal with those who are legally in the country. Hines controls this area with regard to any state laws. I don’t disagree that parts of SB1070 that were severed would create an undue burden to legal aliens different from burdens it imposed on citizens. I guess the other question is, can Federal Supremacy be challenged by the states? For example, would it be wholly unconstitutional for the Federal Government to say it occupies the field of employee-employer regulation? I think so.
Now, I think SB1070 still contended to be an immigration regulation and said, “it should be Arizona policy to enforce immigration to fullest extent possible.” They need to change it and say “this is an exercise of our police powers, the Federal Government can’t claim Supremacy over illegal immigrants.” Does that mean Federal level can’t have laws that are also dealing with penalties for illegal immigrants? No. But it means that Federal Government isn’t Supreme in that field.
The result that states have no power to regulate illegal immigrants (those not allowed in) seems in-congruent to me. Granted, I wholly understand the case-law and the basis for the judge’s ruling. I do not believe there is any appropriate controlling legislation from the Supreme Court, and I don’t believe Hines is either.
What I’m talking about isn’t precisely what Arizona did, but if I was Arizona legislature I would pass a law that criminalizes illegal presence, and claim that it’s impossible for the Federal Government to occupy the field, since they only occupy “who can and cannot be allowed into the country”. The Federal Government can’t interfere with state police powers.
Of course the whole rub is “how do you regulate illegal aliens without burdening legal aliens.” Even a law on the books criminalizing illegal presence would be a great deterrence.
July 29, 2010, 12:49 pmGraham Shevlin says:
DING! WE HAVE A WINNER!
This law is yet another example of what I term the “Look, we tried” approach to addressing perceived problems by politicians. The steps are as follows:
1. Public/media/stir-crazy politicians get hot under the collar about some “injustice”, “scandal”, “crisis” etc. etc.
2. Politicians, seeing a wind of public anger and frustration, get together and create some half-baked (or less than half-baked) legal or regulatory solution
3. Said solution is rammed through legislative/approval processes with the politicians saying “if we do not do this, it is the end of Public Order/America/The World As We Know It/The Terrorists Have Won” (select or insert your preferred meme)
4. Higher court, after examining passed law or regulation, strikes it down
5. Politicians run to media and say “We tried, but we were thwarted by Those Nasty Feds/The President/our opponents/activist judges” etc. etc. (insert your preferred blame target here)
6. Wash, Rinse, Repeat when next preferred crisis materializes or is whipped up.
I have seen this sort of nonsensical behaviour more times than I care to remember over the years. However, in a sound-bite culture, it is always easier for politicians to sound “statesmanlike” and “strong” by whistling up some dumb-ass idea than it is for them to try the rather more difficult task of reminding electors that they are not in the business of piling stupid upon stupid.
July 29, 2010, 12:53 pmWe The People need to get a lot smarter when thinking about how governance should work.
Robbie says:
Sorry, you don’t have a winner at all. If you’re taking about Juan McAmnesty and John Kyl (who had nothing to do with the passage of this law), and they’re phony “support” of the law, fine. If you’re accusing Russell Pierce, Sheriff Joe and Arizona legislators, you are full of crap.
July 29, 2010, 1:03 pmMark Horning says:
It’s moot anyway. AZ has laws against counterfiting. (might be against passing counterfit money rather than just making the stuf) Such laws have never been challenged. You hand the alleged counterfiter over to the feds, and if they decline to prosecute you prosecute them under state law.
July 29, 2010, 1:10 pmSteve L says:
Did anyone look at Stone’s dissent in Hines? Some very straightforward and interesting points, including this: “The national government has exclusive control over the admission of aliens into the United States but, after entry, an alien resident within a state, like a citizen, is subject to the police powers of the state and, in the exercise of that power, state legislatures may pass laws applicable exclusively to aliens so long as the distinction taken between aliens and citizens is not shown to be without rational basis. Patsone v. Pennsylvania, supra; Terrace v. Thompson, 263 U.S. 197; Cockrill v. California, 268 U.S. 258; Ohio v. Deckebach, 274 U.S. 392, 396, and cases cited. The federal government has no general police power over aliens and, so far as it can exercise any control over them, it must be in the pursuance of a power granted to it by the Constitution.”
This injunction was a foregone political conclusion. Bolton has no interest in anything but punting. She can’t be faulted if the law does not go into effect, but she could be faulted if it does. So she punts. In doing so she presumed quite a few facts not in evidence and twisted the statutes beyond rational interpretation, just as the media has done. She will find for the United States ultimately as well. I think the United States is overreaching here and is contesting a law that I do think has been carefully crafted to mirror federal law and precedent and avoid any pre-emption. It’s a political dog and pony show.
July 29, 2010, 1:12 pmPliny the Elder says:
I think the real shame is the complete lack of candor/courage. The current administration (and most of its predecessors) does not actually wnat to reduce illegal immigration (at least not significantly). Most of the members of said administration(s) know that if thye stated this explicitly there are less than a dozen sttates where they could get elected to anythin higher than county clerk. So they hide behind piles of policy arguments and technicalities pretending that they really want to enforce the law but given the realities they must pick and choose carefully. It is even worse when you work for the government at the operational level. No one will ever say “Go and tank every single battered spouse illegal alien case.” but you will spend a full day of “training” where every speaker will explain to you why every such case should be granted. (And if one happens to “screw up” and get an Immigration Judge to actually deny one of these cases, a colleague will tank the appeal while you are out of the office. Not that this happened to me, except that it did.) The voters might eventually fix this, but I fear thta I may like the resulting changes even less.
July 29, 2010, 1:15 pmDavid M. Nieporent says:
That’s great. None of this has the slightest thing to do with this case, which is neither about the decision to admit aliens nor the making of treaties with any foreign country. Arizona is not purporting to decide who may be admitted (or who may remain); it is (correctly) deferring to the federal government on those substantive questions.
I reiterate: the Constitution says that states have no power to override federal law, and Arizona is in no way doing so. You can’t point to a single constitutional provision, federal law, or federal regulation which is being “overridden.”
July 29, 2010, 1:23 pmHa says:
It’s prosecuted as a type of fraud, like passing bad checks – usually, as a misdemeanor. I can remember several times, as a state prosecutor during the late Bush administration, referring substantial counterfeiters to the Feds and them declining to prosecute.
Some here do not seem to realize that no matter what system of law you had, it would still require making choices in whether to prosecute and enforce laws because resources are not infinite. That’s one of the major reasons why prosecutorial discretion exists. I guarantee that Arizona’s criminal justice system would grind to a halt is they prosecuted everything. They don’t even try to do that.
July 29, 2010, 1:24 pmSG says:
It’s stunning that anyone is attempting to claim the Supremacy clause only concerns ‘law’ and not ‘policy’.
And I find it stunning that anyone can attempt to claim the opposite. As near as I can tell, your argument is that the constitutionality of Arizona’s law is dependent on the policy of the current president. If true, that constitutionality is determined by the president’s policy, then we literally do not have the rule of law, but rather the rule of man, where what states are constitutionally permitted to do changes not just with the laws enacted by Congress, but by the prerogatives of the current president.
This is so foreign to me that I can’t believe I’m understanding the argument correctly. Independent of the wisdom of Arizona’s law, I can’t believe anyone wants this outcome – remember GWB was president for 8 years.
July 29, 2010, 1:39 pmSmooth, like a Rhapsody says:
Dilan:
“The power to admit aliens is not part of the general police power of the states and is a plenary power of congress under Mathews. States ceded some powers to the national government when the Constitution was adopted and this was one of them. States also have no power to make foreign policy.Like it or not, the Constitution is 100 percent clear that states have no power to override federal decisions on immigration law. What can be done is Obama can be impeached for failing to enforce the law. That’s your remedy.”
Are you actuated by the same purity of analysis when it comes to Roe vs. Wade? The remedy there was to pass a constitutional amendment. I doubt that you would have acceded to that argument.
This is not just a matter of an abstract desire to enforce laws.
Like Gingrich apparently has mentioned, Arizona is being punished by the feds refusal to enforce the law; and they are being punished in no small part by other policies imposed from without mandating that Arizona provide medical care and education to immigrants.
There is another analogy here: what if the feds, for whatever reason, asserted authority over oil spills in the Gulf and then tried to enjoin Gov. Jindal when he tried to keep the oil from washing ashore?
July 29, 2010, 1:49 pmbhaal says:
I would add that I’m visiting Arizona shortly, so the section that concerned me the most was the provision that imposed additional penalties for violating 8 USC §1306(a). The part of the judge’s reasoning that prevents the enforcement of that section seems very simple – Congress has set out the penalties themselves, as part of a comprehensive scheme, and it’s not for the States to attempt to add to those penalties.
Though a part of me longs to see pictures of young exchange students locked up for keeping their passports safely at home and the embarrassment for Arizona that would result (in contrast to the I-94W the I-94 *is* a prescribed registration card in the Code of Federal Regulations and is usually stapled to your passport on arrival) I am glad that the State has been reigned in, at least this time.
As for the inconsistency of a country that requires those who have already been for a VISA interview to carry their papers on them but lets those without one avoid the hassle, I don’t really know what to make of it, except that next time I’ll go elsewhere.
July 29, 2010, 1:49 pmPliny the Elder says:
I never buy the “we are too busy” rationale, because they always find time for this:
http://www.ca9.uscourts.gov/datastore/opinions/2010/07/27/05-74666.pdf
and, of course, the executive branch had plenty of time to devote to the AZ litigation itself.
July 29, 2010, 1:49 pmORID says:
Under the immigration/preemption case law I see no reason why a state can’t set up a registration scheme for unlawfully present aliens and criminalize failure to register. The state could enact whatever penalties it wanted to, but the only remedy it couldn’t undertake is to deport them. Cite them if they aren’t carrying the papers under Federal law required and if they can’t show proof at a court hearing that the US Government has authorized their presence then they get a class 1 felony on their record. Have some type of correspondence system that clears people who get their proof into the state. This wouldn’t burden DHS at all, because it wouldn’t require the state to make any inquiries.
The upshot to this is that other states could be as lenient as they want to unlawfully present aliens.
Sure, this is draconian but we need a way to enforce the darn immigration laws. This issue is certainly not one where we have a “rule of law”.
July 29, 2010, 1:58 pmbhaal says:
The President has the power to enforce the law under the Constitution. If that’s the rule of man then any position that entails some discretion to enforce the law is as well. For example, the power of the President or a Governor to chose whether or not to pardon a prisoner or the power of a DA to charge a lesser offence than the facts support or to plea bargain or not. You’re not using the term ‘rule of man’ correctly – it’s only meant to refer to those situations where someone enforces their own will, not pursuant to any system of law, not just to someone exercising their discretion as bestowed by law.
If the President chose not to enforce a crucial law or enforced one in a way that was contrary to the spirit of that law then the remedy is an impeachment claim. This is not actually the case here, the executive branch is simply enforcing the law differently to Arizona, by going after only those immigrants who commit crimes, rather than devoting previous resources to rounding all of them up. That difference of opinion is settled by the Supremacy Clause for the reasons I have given above.
July 29, 2010, 2:00 pmDilan Esper says:
enforcing U.S. immigration law on U.S. soil is not “making foreign policy”
Actually it has huge foreign policy implications. Again, I get the feeling that the position of the Arizona supporters is that the state has the right to do this even if Mexico threatens war, or to abrogate NAFTA, or to withdraw from narcotics trafficking treaties, or to pursue nuclear weapons if illegal immigrants are arrested and detained by the state of Arizona.
Obviously, Mexico isn’t going to do any of those things. But there are all sorts of things it could do that would not be in our interests, and state laws that interfere with the President’s and Congress’ ability to conduct foreign policy are very much suspect.
July 29, 2010, 2:05 pmKenneth C. Brooks says:
Firstly, I state that I believe Representative Sonny Bono had the best piece of legislation introduced in the 20th Century. A majority vote of a three judge panel before any state law could be rendered invalid by the Federal Judiciary. Unfortunately, he mysteriously skiied into a tree before the bill was voted on. His wife, who took over his seat, not wanting to have a skiing accident of her own withdrew the bill as her first act in here capacity as Representative, after taking over for Sonny Bono. How can we allow a single person to thwart the will of a sovereign, even if said person is a federal judge?
Secondly, any preemption argument must be weighed against the requirement that the Federal Government secure a republican form of government to the states. This is so, because it may very well be that while there is pre-emption in the immigration authority of the Federal Government, the manner in which the Federal Government implements its authority undermines the State’s republican form of government. If this is the case, then a State’s law that facilitates securing that form of government by would have to be left in place, because action by a State in furtherance of securing a Federal Right would always trump inaction. States have rights, as well as citizens. Never forget that.
In situations wherein there seemed to be an apparent conflict between Federal and State law, the propriety of an injunction would have to be weighed so as to consider the impact on the State’s republican form of government. In short, pre-emption is not, in itself, sufficient in matters where the republical form of government is at risk.
Key to determining whether the republican form of government is being satisfied requires knowing whether resources of the state that the Supreme Court has said may be secured to the citizens of the state and to the detriment of non-resident citizens are squandered in such a manner as to prevent the state from securing those resources to its resident citizens. Where this is problematic in this situation concerns state services. If an inordinate number of non-U.S. nationals are imprisoned or on public assistance or in some other manner consuming resources of the State and the Federal Government does not reimburse the State . . . this, my fellow citizens is not securing a republican form of government. This, my fellow citizens, is also why we have the Second Amendment.
July 29, 2010, 2:05 pmSmooth, like a Rhapsody says:
I wonder what the Fed Court would say if the DOJ now came out with a policy that they are immediately removing all border enforcement between longitude 109 degrees west and 114.5 degrees west (ie., the AZ/Mexico border). Would AZ have a remedy or lawsuit then?
July 29, 2010, 2:07 pmDilan Esper says:
That’s great. None of this has the slightest thing to do with this case, which is neither about the decision to admit aliens nor the making of treaties with any foreign country.
1. This case is all about the power to admit aliens. The fact that this power is exercised through the use of prosecutorial discretion rather than law is of no import to whether states have any power to exclude aliens.
2. “Foreign policy” is not limited to “making treaties”. In this case, we have huge bilateral interests with Mexico that are jeopardize if we over-enforce immigration laws. So we strike a balance. Arizona is trying to upset that balance even if it screws over our relationship with Mexico. That’s not the state’s remit.
July 29, 2010, 2:09 pmDilan Esper says:
Are you actuated by the same purity of analysis when it comes to Roe vs. Wade? The remedy there was to pass a constitutional amendment. I doubt that you would have acceded to that argument.
Roe is a very questionable decision, especially based on a due process rationale. I like the substantive result and I think there are some stare decisis arguments about overturning it, but I am not going to go to bat for the claim that the Due Process Clause bars prohibitions on abortion.
July 29, 2010, 2:15 pmSG says:
it’s only meant to refer to those situations where someone enforces their own will, not pursuant to any system of law, not just to someone exercising their discretion as bestowed by law.
The President’s discretion does not (will, didn’t use to) extend to overriding states laws when those laws were congruent with the Federal law.
AIUI, the Arizona law in no way infringed on the President’s discretion. He remains empowered to immediately release any person found by the state of Arizona to be in the country illegally. It would be, or at least should be, politically embarrassing for him to be immediately releasing illegal aliens already in custody, but that’s the cost of exercising his discretion. But it should not be the case that state laws that embarass the president are unconstitutional.
Congress could pass a law that forbids the states from inquiring about immigration status, and that would validly preempt this law. But I hope you recognize a significant distinction between laws passed by Congress and the current president’s chosen policy.
July 29, 2010, 2:16 pmORID says:
Dilan,
1) The United States can’t name the 15 Million people in this country illegally. How is that “power to admit aliens”. The US did not admit those aliens, yet they came here anyway. How is that the “exercise of power through prosecutorial discretion”?
2) So if Mexico complained and started filing lawsuits getting its citizens released from state prison’s they wouldn’t get laughed out of court? What if there is a treaty signed which says “Only 500,000 Mexicans can be in all state prisons at one time”. Would that pre-empt state law?
3) How do you propose we enforce our immigration laws and become a “rule of law” country in that issue again?
4) I demand Congress vacate their pre-emption of criminal sanctions for illegals. That’s the simple solution. Those of us who want to see state laws such as these need to demand the GOP take up this issue during the 2010 elections. In fact I think it might be the log-jam that bring on Comprehensive Immigration Reform. No doubt the “open borders” crowd won’t be pleased, but there will still be states that don’t go draconion on sanctions against illegal aliens (California, which I live in.).
SG,
I thought pre-emption did include over-riding state laws when they were congruent. I think it is cited in this opinion by the judge.
Sorry, I’m arguing both sides here. I only quibble with the order that Arizona can’t sanction employees. Use of e-verify system is also a penalty against prospective employees yet it held up in court. I don’t see the distinction between penalties and e-verify, mandatory e-verify is probably more damaging than a fine.
July 29, 2010, 2:18 pmFederal Farmer says:
Your second bullet is a cop-out. It’s about protecting corporate interests in exploiting a vulnerable work-force in order to keep down the price of fruits, vegetables and clean hotel rooms.
Allowing illegals to work is aiding and abetting the violation of human rights. It can’t be tolerated by a civil society.
July 29, 2010, 2:25 pmRobbie says:
So you think an American President should be permitted to dishonor his oath of office, refuse to enforce U.S. law, refuse to defend the sovereignty of America and her people, prevent other Americans from doing so out of fear of an invasion from Mexico?
We’re already being invaded by Mexico.
Let me guess… you’re a libertarian?
July 29, 2010, 2:30 pmDilan Esper says:
So you think an American President should be permitted to dishonor his oath of office, refuse to enforce U.S. law, refuse to defend the sovereignty of America and her people, prevent other Americans from doing so out of fear of an invasion from Mexico?
1. I think that the status quo on immigration is a tacit compromise between business interests, the Mexican government, and Hispanic groups on the one hand and labor unions and nativist groups on the other, and that the Constitution permits such tacit compromises. It in no way dishonors his oath of office; however, if it did, the remedy is to impeach.
2. The President “refuses to enforce US law” all the time, if you mean exercises his discretion (through the Justice Department and administrative agencies) to decline to prosecute or bring enforcement actions against people or entities who violate it. Again, though, if in a particular case this seems improper, the remedy is impeachment.
3. I don’t think letting illegal immigrants stay in the country in any way makes the US less sovereign. What sovereign is challenging us over any significant amount of our territory? What people don’t recognize the US as sovereign? What sovereign immunity has the US lost? This is overheated political rhetoric from anti-immigrant conservatives. Plenty of countries (1) have illegal immigration problems and (2) retain sovereignty.
4. As I said, Mexico obviously isn’t going to invade. But Mexican cooperation is crucial on several foreign policy issues, including terrorism, drug trafficking, free trade, hemispheric cooperation, and, yes, controlling migrant flows. If the President determines that the best way to secure such cooperation is not to be draconian in enforcement of immigration law, that is precisely the type of foreign policy judgment that it is his right to make. The Constitution doesn’t grant the 50 states the power to make 50 junior foreign policies that conflict with Presidential determinations, or to blithely declare that whatever actions they take that piss a neighbor off actually have no effect on foreign policy.
July 29, 2010, 2:40 pmbhaal says:
There’s a huge gulf between the law on its face and the application of that law. The Constitutionality of a State law has to be judged according to how the federal law is applied. It would be ludicrous if a State could pass a law, as Arizona has done, which appears to conform to federal law, but actually attempts to enforce that law in its own way, with additional penalties, or with skewed priorities.
How would you feel if you lived in Texas or California, or any other State, and resources were bring drawn from immigration enforcement in your State (a resource you’ve paid for with your federal taxes) and being devoted to tracking down illegal immigrants in Arizona who aren’t trafficking drugs or committing more crimes, at the expense of catching those who are at your own border?
It would be absolutely crazy if a judge could imply ignore the carefully chosen priorities of an executive agency, overseen by an elected President and hold a law was constitutional, because it could, in theory, be compatible with some enforcement of federal law.
July 29, 2010, 2:43 pmWhitehall says:
Alan asked where the topic comes up in the Federalist Papers. Robbie answered that, in part, by quoting #27. I did some research last night and one of the later ones (see index for “naturalization”) discusses why Congress is granted the power to establish a nation-wide “rule” of naturalization. This is so all rules defining a citizen in the US and of the various states are consistent. The actual words in the Constitution are “To establish an uniform Rule of Naturalization.”
Partially, this was to deal with slavery and how to differentiate slaves from free citizens – another compromise between slave and free states. It also avoids mischief between states.
But it only discusses establishing the rules, not the enforcement of the rules. Enforcement power is implied as “necessary” but we are seeing that it is no way “sufficient.”
A clear and repetitive notion in the FP is that primary police power resides in the states and only with the federal government in delegated matters, like Customs.
July 29, 2010, 2:57 pmORID says:
Whitehall,
None of the unlawful folks inside of America has been admitted under the “Uniform Rule of Naturalization”. They are not on any path to US Citizenship. I don’t see why such folks wouldn’t fall under “police power”. Certainly the Federal power to remove illegal immigrants is “necessary and proper” to establishing the Uniform Rule of Naturalization; but is it Supreme to the state power? I don’t think so. I haven’t seen anything to convince me otherwise. Certainly necessary and proper could be used to explain why the Federal Government is exercising “police power”.
What I’m arguing isn’t what Arizona did, I’m not even sure what they argued (I wanted to see hearing transcripts, but I’m not sure when they would be available). I think the judge properly gave some weight to the stated intent which was a “regulation of immigration”… yes that is absolutely pre-empted.
Arizona needs to claim and modify the law to say:
1) This is not a regulation of immigration, it is an exercise of police power.
2) The Federal Government cannot be Supreme over the regulation of people it doesn’t allow in in the first place.
I find this more compelling than some of the other arguments I’ve seen advanced for why Arizona can take such action. If “immigration” which I’ve seen defined in the Courts as a “regulation of who can come into and is removed from the country” is pre-empted, which I agree it is by the Supremacy clause it is.
Regulation of illegal immigration doesn’t seem to fit under that comprehensive and uniform scheme.
July 29, 2010, 3:08 pmDavid M. Nieporent says:
Making Elizabeth Warren head of the CFPA will destroy the economy. Destroying the economy would obviously have huge foreign policy implications. Therefore, Elizabeth Warren’s nomination is a matter of foreign policy. By your logic.
The fact that a foreign country may care about a domestic American issue does not convert that issue into one of foreign policy. I will, once again, cite the Medellin case. If that wasn’t a matter of foreign policy — there was even a relevant treaty in that instance! — then this sure as hell isn’t.
July 29, 2010, 3:36 pmDilan Esper says:
The fact that a foreign country may care about a domestic American issue does not convert that issue into one of foreign policy. I will, once again, cite the Medellin case. If that wasn’t a matter of foreign policy — there was even a relevant treaty in that instance! — then this sure as hell isn’t.
Medellin didn’t say the federal government didn’t have the power to do it. It said that the President couldn’t order the states to comply because the treaty wasn’t self-executing and required an act of Congress to be effective against the states. Had the treaty been self-executing, it certainly WOULD have provided sufficient basis for Bush’s order.
The relevant case is actually the Burma sanctions case, which held that localities can’t make their own foreign policy decisions that conflict with national policy, because of the need of the nation to speak with “one voice” on matters of foreign policy. And that voice is not the voice of xenophobes in Arizona.
July 29, 2010, 3:52 pmDavid M. Nieporent says:
Absolutely 100% completely and totally wrong. (1) You’re using the phrase “prosecutorial discretion” inapplicably; (2) The fact that the president chooses not to deport someone (or many) is very different than the issue of whether to admit that person in the first place. If the president chooses not to deport someone, that does not create any right in that person to stay here; he or she is still here in violation of federal law. (3) Regardless, Arizona isn’t “excluding” anyone; it has no power to do so, under this law or otherwise.
Yes, it is. See Medellin. The fact that a state act may affect our relationship with a foreign country is utterly irrelevant, if that act is otherwise within the state’s power. (Of course, you’ll argue that it isn’t, but that’s circular in this context.)
Moreover, as a factual matter your claim is silly. Mexico is going to somehow retaliate against us if we arrest and/or deport people for violating immigration law? I don’t think so.
July 29, 2010, 3:53 pmMLS says:
ORID,
One of the biggest dangers I see to the orderly development of US law is those few who dare take the time to actually read Article 1, Section 8.
Another danger is what I view as an almost mindless application of prior cases presenting facts not even on “all one’s”, much less “all four’s”, to decide a case at hand.
I express no opinion on the wisdom, or lack thereof, associated with the Arizona law. I do, however, express my opinion that the district court judge in this matter promulgated an order with a recitation of controlling law that borders on being “invisible”. Candidly, I found the opinion to in large measure be outcome controlled with filler attempting to justify the outcome.
Some legitimate concerns were, of course, raised, but to rely on “federal preemption” in my view stretches the doctrine almost to its breaking point.
July 29, 2010, 3:58 pmBrian B says:
Some help here (as non idealogical as possible please)?
July 29, 2010, 4:07 pmJudge Bolton seemed to primarily follow the DOJ argument which seems to me to be that Federal enforcement practices themselves preempt state law. The DOJ argument was primarily that the AZ law interfered with the executive’s priorities in enforcement.
Seems to me to be a problem in logic with executive enforcement rather than congressional law preempting things.
Hypothetically, if Congress passed a bill duly signed into law by a president and a subsequent executive decided not to enforce it at all, a state could pass a law fully in compliance with the Federal statute itself but find its own law preempted by the courts, based on the activities of an executive at odds with the Federal law itself, could it not? What am I missing here?
SG says:
The Constitutionality of a State law has to be judged according to how the federal law is applied. It would be ludicrous if a State could pass a law, as Arizona has done, which appears to conform to federal law, but actually attempts to enforce that law in its own way, with additional penalties, or with skewed priorities.
If the constitutionality of something varies with the person holding the office of the presidency and not the text of the law, that is the very of definition of rule of men, not rule of law.
If this establishes precedent, this construction gives the president the power to constitutionally nullify an act of Congress by choosing not to enforce it. Is that really what you want?
July 29, 2010, 4:14 pmmemomachine says:
Hmmmm.
Ok. So lets see if I have this straight:
1. This is a federal judge in a federal case so any rulings apply to the entire country and not necessarily just Arizona.
2. The ruling in specific I’m curious about pertains to the state or local authorities checking immigration status with the federal government.
3. The ruling given is that it is banned by the court.
4. So state and local authorities cannot contact the federal government to check on immigration status of suspects?
…
Isn’t this insane? Is this true? Does this have an impact on WoT fighting? How about deportation of criminal illegal aliens held in local, county and state lockup? Isn’t determination of immigration status one of the tools used in the WoT? As in a suspect that hadn’t committed any specific crime but is found to be an illegal alien can then be legally transferred to federal authority and held for that while an investigation is started?
July 29, 2010, 4:20 pmDavid M. Nieporent says:
It certainly did. That’s why the execution went forward.
Exactly the point! The president’s policy preferences don’t override state law. Only a lawful, applicable act of Congress can do that. There wasn’t one in Medellin, and there isn’t one here.
Exactly right again. And if there were a federal law giving the president the authority to decide which people who were here illegally were allowed to stay in this country, then it would provide sufficient basis for Obama’s policy positions to overrule Arizona law. But there isn’t any such law.
No. Once again, I have to explain to you why that’s wrong. (Not even including the fact that Crosby itself is a bad decision.) The Crosby case involved a state statute that arguably contradicted both a congressional statute and treaty obligations under the WTO. It did not involve a state statute that merely interfered with presidential preferences or “foreign policy” as some amorphous concept. Here, I’ll sum up:
State statute contradicts: Arizona Burma Medellin1. Federal statute N Y N
2. Treaty obligation N Y N
3. Presidential preference Y Y Y
4. "Foreign policy" Y Y Y
See how Arizona matches the Medellin situation, but not the Burma situation? See how the two factors you think are important — 3&4 — are just not legally relevant, and the two factors that are important — 1&2 — don’t support your argument?
July 29, 2010, 4:25 pmmemomachine says:
Hmmmm.
As a fiscal conservative I love that!
Who needs line-item-veto? A fiscally conservative President can simply choose what programs get funded and then simply order agencies to not fund anything the President doesn’t like.
Take that National Endowment for the Arts! Ha-ha NPR! Department of Education? Time to bang a drum on street corners for spare change!
The Law of Unintended Consequences is an unforgiving mistress.
Well. At least Obama has got the Mousolini head-tilt down pat. So we got that in our favor.
July 29, 2010, 4:30 pmDilan Esper says:
No. Once again, I have to explain to you why that’s wrong. (Not even including the fact that Crosby itself is a bad decision.) The Crosby case involved a state statute that arguably contradicted both a congressional statute and treaty obligations under the WTO. It did not involve a state statute that merely interfered with presidential preferences or “foreign policy” as some amorphous concept.
So because David N., who isn’t half as smart as any of the sitting Supreme Court justices and in any event has no authority to interpret the Constitution, says that Crosby is wrong, we are supposed to ignore that it states that the federal government has the power to speak with “ONE VOICE” on foreign policy?
You are “distinguishing” Crosby, but it sure sounds to me like Arizona is trying to drown out the “one voice” just like Massachusetts tried to do with Burma sanctions.
July 29, 2010, 5:06 pmmemomachine says:
Hmmmm.
Foreign policy? What an absurd assertion. This is a domestic law enforcement issue and has nothing to do with “foreign policy”.
July 29, 2010, 5:19 pmSarcastro says:
This is exactly what the rule of men not laws meant! And what’s up with Judges? They’re men, not laws! We need to get right on to making some sentient laws – the Constitution demands it!
July 29, 2010, 5:34 pmmemomachine says:
Hmmmm.
This whole idea that Arizona’s state law has to comply with federal *policy* is beyond absurd. Consider that the potential Constitutionality of such a state law would depend on whim of the President.
Oh it’s Constitutional!
No it’s not.
Yes it is!
Whoops, it changed again!
Is there a time delay in all this? If a President makes a policy determination on Friday at 4pm to enforce the law and then changes his mind at 6pm, how precisely does that work?
Let us apply this standard to drug enforcement laws:
Friday, 4pm: “Hey I changed my mind all drugs are now legal, toke up folks!”
result: all state laws that apply criminal codes to drug enforcement are now no longer in compliance with the US Constitution? So cops cannot arrest anybody violating drug laws at all?
Friday, 6pm: “Hey those drug laws I said I wasn’t going to enforce? Well change-a-mind-a-roony! So bad, so sad.”
result: all state laws that apply criminal codes to drug enforcement are now in compliance with the US Constitution and cops can go hog-wild arresting everyone bringing home shopping bags of weed?
*LAUGH*.
The legal profession. The only thing in the world that makes web programming look rational in comparison.
July 29, 2010, 5:36 pmDavid M. Nieporent says:
Dilan, you may live in awe of public figures, but I don’t. They’re not that smart. (And I’m not the only one to have criticized the decision anyway. As well as Garimendi, which was also wrongly decided.) In any event, my argument was not based on the notion that Crosby was wrong; that was just an aside.
It only sounds that way because you’re wrongly calling this a foreign policy case, when immigration isn’t a question of foreign policy. Meanwhile, you are not only not distinguishing Medellin, but completely ignoring it even though it’s directly on point, and directly refutes this whole “one voice” nonsense.
Again, if there were a relevant treaty with Mexico in place (that Arizona’s law interfered with), this case should come out differently. It would be the Crosby case. But there isn’t. So it’s the Medellin case. (At least with respect to the “foreign policy” argument.)
July 29, 2010, 5:37 pmmemomachine says:
Hmmmm.
@ Sarcastro
I say we bypass the whole “men” and “laws” thing and have everyone ruled by women and not laws!
Astonishingly enough this is actually on point with this discussion.
July 29, 2010, 5:38 pmProving Lindgren's point about comments says:
If the constitutionality of something varies with the person holding the office of the presidency and not the text of the law, that is the very of definition of rule of men, not rule of law.
If this establishes precedent, this construction gives the president the power to constitutionally nullify an act of Congress by choosing not to enforce it. Is that really what you want?
The new doctrine should be called “Presidential Preemption.” I can’t wait to hear the squealing when the next President uses the new doctrine with respect to our navigable waters. Good times!
July 29, 2010, 5:44 pmDilan Esper says:
Foreign policy? What an absurd assertion. This is a domestic law enforcement issue and has nothing to do with “foreign policy”.
Test this claim. The US recently arrested several Russian spies. They were not prosecuted and were instead traded for several imprisoned American spies. Was this a domestic law enforcement issue that had nothing to do with foreign policy?
There aren’t these two compartments, “domestic law enforcement” (which by the way, border control isn’t anyway, but that’s another issue) and “foreign policy” with no overlap. We were recently treated to the spectacle of Roman Polanski escaping justice after a diplomatic imbroglio between the US and Switzerland– “domestic law enforcement” or “foreign policy”? Both.
Like it or not, Mexico cares a lot about how we treat undocumented workers. And like it or not, our relationship with Mexico matters and Mexico could do a lot of things that could screw us over in various ways. That’s foreign policy.
Conservatives are in denial on this because they so want to kick out the brown people.
July 29, 2010, 5:46 pmDilan Esper says:
Dilan, you may live in awe of public figures, but I don’t. They’re not that smart.
I didn’t say they are that smart. They are smarter than you. Every single Supreme Court justice is smarter than you. Smarter than me too. Sorry if your ego doesn’t allow you to admit that– I’d say that’s a character flaw.
It only sounds that way because you’re wrongly calling this a foreign policy case, when immigration isn’t a question of foreign policy. Meanwhile, you are not only not distinguishing Medellin, but completely ignoring it even though it’s directly on point, and directly refutes this whole “one voice” nonsense.
So Medellin overruled Crosby? Why didn’t it say anything about it then?
And yes, again, I’m sorry that you want to kick out the Mexicans so badly, but Mexico does care about this issue, a lot, which does make it a matter of foreign policy.
Again, if there were a relevant treaty with Mexico in place (that Arizona’s law interfered with), this case should come out differently.
So in your universe, foreign policy begins and ends with treaties. Good to know. And completely idiotic.
July 29, 2010, 5:49 pmDavid M. Nieporent says:
Gee, I can’t imagine why agents of a foreign government might present a different issue than random people who are presumably not acting on behalf of their government at all. Can you think of any possible differences between those two situations?
July 29, 2010, 5:55 pmSarcastro says:
Yes! When Presidential policy changes, it should not overrule State policy! What is this, some kind of Federal system?
July 29, 2010, 5:58 pmDilan Esper says:
BTW David:
Since you now say your “Crosby is wrong” rant is an aside, have you considered the following:
1. How is the discretion that the President was granted to enforce sanctions against Burma (and which would have been undermined had Massachusetts been able to enforce its stricter sanctions) different from the discretion granted to the Justice Department to parole or withhold deportation of illegal immigrants under the immigration statutes? Doesn’t it undermine that authority if Arizona can keep on arresting and detaining people who the President has paroled into the country or acted to withhold deportation against?
2. How is the decision of Congress with respect to the proper calibration of employer duties and sanctions, which Arizona displaces in favor of stricter duties and sanctions, different from the decision of Congress with respect to the proper calibration of sanctions against Burma in Crosby?
3. What did Crosby mean when it said that the Constitution permits the federal government to speak with one voice on foreign policy?
July 29, 2010, 6:07 pmmemomachine says:
Hmmmm.
@ Dilan Esper
Calling me a racist is the easiest and fastest way of getting your ass handed to you.
So far I think people have been handling you with kid gloves but you have definitely crossed the line you imbecilic libtard.
July 29, 2010, 6:13 pmSarcastro says:
Sorry, memomachine. Dilan Esper‘s telepathy has smoked you out, you brown kicker!
You might as well confess.
July 29, 2010, 6:31 pmDilan Esper says:
Calling me a racist is the easiest and fastest way of getting your ass handed to you.
Did I call YOU a racist? Or did I say that conservatives were generally twisting reality because they want to deport Mexicans?
I think I said the latter.
July 29, 2010, 6:36 pmFresno Divorce Attorney says:
Any new updates on the economic impact as illegal immigrants leave the state due to the law
July 29, 2010, 6:51 pmWhitehall says:
There are foreign policy implications involved. The Mexican government, for internal reasons of their own, wishes to export their poverty to the US and expect to import cash remittences.
A complete cutoff of that “escape valve” for the Mexican government will destablize that government. Anarchy on our Southern border is not a good thing for Americans.
Internal US policy has been to allow waves of Mexicans to come into the US illegally and to avoid our own laws that would better block entry and force deportation.
However, that foreign policy bargain has NOT been sold to the citizens of the US. They have been paying the costs while having little say in the continuance of the policy. We citizens are realizing that the costs are too high and we’re getting a bad deal.
Essentially, our government is being forced to acknowledge the existing escape valve policy and sell it to the US citizenry or else come up with a NEW policy with secure borders.
With our borders secure, the problem then becomes how do we ensure a stable political and economic environment in Mexico? That assumes that we can’t insulate ourselves from the follies of the Mexicans – and I don’t think we can, completely. We’ve already seen Hamas operatives in Ensensnada.
Making up some hokey court ruling to block internal political pressures for change is not good governance.
July 29, 2010, 6:58 pmKenneth C. Brooks says:
You know what is funny is that when a state wants to execute a foreign national based upon the death penalty, the Federal Judiciary could care less about foreign policy implications (March 25, 2008, the U.S. Supreme Court ruled 6-3 in Medellin v. Texas (No. 06-984) that the President does not have the authority to order states to bypass their procedural rules and comply with a ruling from the International Court of Justice (ICJ). Even apart from the President’s powers, the Court held that Texas is not obligated to give Mr. Medellin an additional hearing because the Protocol governing the Vienna Convention on Consular Relations is not “self-executing” and would require an act of Congress to make it binding on the states.) However, when a state wants to ensure that a foreign national is in the country legally then suddenly foreign policy begins to matter.
July 29, 2010, 7:32 pmORID says:
The President doesn’t have to enforce the law. Didn’t we all learn about Marbury vs. Madison in 8th grade Civics class (well at least in Virginia)? If the President wasn’t enforcing immigration law (*I am not making a claim he isn’t, every President has been enforcing immigration law), it would only be a “generalized”, “abstract” injury, common to a large class of citizens. It’s my understanding that the President can break any law so long as he doesn’t particularly harm anyone… and by that I really do mean act contrary to the law. I’m not certain if this is true, but it seems like it sometimes.
See, Lance v. Coffman (2007):
The only injury plaintiffs allege is that the law—specifically the Elections Clause—has not been followed. This injury is precisely the kind of undifferenti- ated, generalized grievance about the conduct of govern- ment that we have refused to countenance in the past.
It seems backwards to me that even though we are charged with “running our democracy” (quote from Scalia in oral arguments of Doe v. Washington) we have no right that the law is followed.
As a hypothetical I’ll submit this:
- The President implements a policy whereby anyone and every gets green cards.
- This is implemented.
- Congress being sympathetic doesn’t bring any court action to defend their legislative prerogative
No one would have standing to prevent the President from taking such action. States don’t because immigration policy and law is pre-empted. Citizens don’t because its a “generalized grievance. Other Congressman wouldn’t because Congress has to work together to bring an action (see Byrd v. Raines).
When situations like that happen, it pisses me off. I can specifically name at least 3 actions undertaken in the past couple of years where the Executive Branch broke the law, yet no one could claim harm. 1) The AIG Bailout (Federal Reserve 13(3) doesn’t give the Federal Reserve Power to foul up Bankruptcy laws, 2) The Auto Bailout (auto manufacturers aren’t “financial companies”), 3) FDIC asking banks to pre-pay their deposit insurance assessments 3 years ahead of time (this one happened in spite of recent legislation).
Yet, I don’t believe anyone could have standing under case law. An AIG shareholder couldn’t bring action because there was no harm to them. I suppose Congress *could* bring action because their duty to ensure there is uniform bankruptcy laws was abridged. Banks could probably have standing against the FDIC, but the FDIC’s remedy was better for them than the Congressional remedy.
I’m sorry, but I feel that “We the People” should be able to gain standing in those situations, primarily because the legislative power is reserved for Congress and in each of those instances the Executive Branch was executing the legislative power. Oh, but that’s a generalized grievance.
July 29, 2010, 7:46 pmDilan Esper says:
However, that foreign policy bargain has NOT been sold to the citizens of the US. They have been paying the costs while having little say in the continuance of the policy. We citizens are realizing that the costs are too high and we’re getting a bad deal.
I think conservatives have a legitimate point on this. But you should understand, nobody’s telling the truth to their supporters about any aspect of immigration policy, due to the tacit consensus I set forth above. Essentially, there are strong policy reasons (and not just cheap labor) why our policymakers want Hispanic immigration. But there are strong bases in both parties (nativist conservatives and working-class union liberals) who don’t like the policy. So what you get is a two-step– most politicians denounce illegal immigration while doing little to stop it.
The problem is, I don’t think the answer to this is to say “OK, we’ll stop it now”. Because the reality is that the economic problems with such a policy, the effect it will have on Hispanic families, and the effect it will have our relations with Mexico don’t go away simply because we have stricter enforcement. Further– and this is key– I don’t think explicit compromise is possible between those people who think we need to reduce ALL immigration to this country– which includes a significant number of social conservatives– and those who think that we simply need to ensure that immigrants come through legal channels. Both those groups register as “anti-illegal immigration” in polls, but they have very different and incompatible political goals.
That makes this a Gordian Knot of a political issue. And as a result, our policymakers continue to muddle through with a policy that satisfies nobody, but also avoids pissing off people that it would really hurt, both politically and with respect to policy, to piss off.
July 29, 2010, 7:57 pmORID says:
Dilan,
I just want to say that even though I disagree there are “foreign policy” implications we can argue, discuss and debate (and the parties can claim anything they want) in the court of public opinion and law. Clearly you think there is and I’m not sure going back and forth is going to change our minds other than to illuminate our positions to each other. I don’t think it is a ludicrous claim to make.
I don’t want to deport Mexicans, I want to see some form of orderly law. I support “amnesty”, but I think there should be plenty of safeguards in place to avoid this same situation in the future. As it is I’ve seen nothing to convince me, an American citizens that our “elite politician overlords” are going to actually come together and fix the problem. Since I’m not sure that’s possible currently; the status quo will have to do. The real debate is that the borders are pretty near impossible to enforce (I think it is poor for some of the right to think the wall will be real effective), and most people don’t think the United States should be a “papers please!” country.
As it is my demands of the Federal Government in regards to immigration are the the following. Considering we just implemented a complicated health care reform bill, I’m not convinced that we can’t implement a simpler immigration bill.
1) Spend the $2.5B that will fix e-verify and make it mandatory for all employers.
2) Vacate the pre-emption of criminalization of legal presence (specifically allow the states to work in that field with some boundaries). Vacate the pre-emption of employee sanctions. Or specifically allow states to make laws similar to the ones Arizona wants to make.
3) Build whatever border fence will make some people happy (I don’t think this is a solution, just it will get more people in).
4) Fund whatever program will be used for local/state police to verify immigration status. (I can’t see this as more than $1B based on already existing databases).
5) Congress is going to have to do a lot more factfinding before I believe we *need* a guest worker program.
6) I want to see the Executive Branch figuring out how to do smarter, more automated enforcing of the law.
7) I’ll take a limited amnesty and guest worker program. By that I mean in the country for 8+ years with 5-6 year path to citizenship. Guest worker program, but very limited. I understand that is a hang-up and too limited and the program is really cosmetic and we haven’t solved the problem (or it will result in self-deportations).
Then again no one has really explained to me the “problem” other than a bunch of businessmen don’t want to pay a decent wage. I see the talking points from businesses about not having enough science workers, etc. But I don’t believe it. Of course they will say that so they can undercut wages of citizens and legal workers. The math and logic behind it all is very important to me.
So Dilan, what do you think is rationale to accept CIR for you?
July 29, 2010, 8:11 pmSteve L says:
The race card had to come out somewhere. Nevermind that the AZ law makes no distinction between Mexicans or Irish (which by the way vastly outnumber Mexicans as “undocumented workers” here in Boston). Mexico cares because it has a vested interest in causing U.S. states to subsidize its citizens in a way that it cannot. Arizona cares because mandates from the federal government require it to subsidize Mexican citizens and it cannot afford to provide those services. In the real world, the federal government has already grossly exceeded its Constitutional authority, and in so doing has intruded upon the sovereignty of the states. I imagine that Arizona would gladly repeal this law, if the federal government would repeal laws and regulations requiring it to take care of these people.
We can discuss the esoterics of federal pre-emption, or foreign policy arguments that the feds are not even trying to raise because they miss the mark, but none of that matters. This is a political battle about the very structure of our government. This case is inextricably linked to the Obamacare cases on a political level. Ultimately that will be far more important than any judicial opinion rendered. Think Dred Scott, Civil War and the Reconstruction Amendments. When this gets to SCOTUS the result will divide the country further, regardless of what it is.
July 29, 2010, 8:12 pmORID says:
The problem has been “sold” as a problem for at least 10 years, at least. In the freakin’ Kagan papers released there were discussion on immigration reform. When Bush came to office he was selling a Guest Worker Program (as early as 2003). Perhaps 2004 or 2006 were the best chance to form the bipartisan coalition. Both parties also want to take credit for putting through immigration reform, so it can only be done with a Congress that is relatively even.
I was watching C-SPAN this morning and put off by how “kabuki” the political branches operate. It was the House and they were debating the rules for the Transportation/HUD budget. Obviously the thing was going to pass, so what was the point of debating other than posterity’s sake? Flake, Hensarling and others got out and pointed out that there are earmarks for roads to senior Democarts, those in tight races, and the chairman, and then said the Republicans are pushing through an effort to ban all earmarks (hey guys, that might be more effective when you are in power!). They then pimped their “You Cut!” program which allows people to vote on what they want to cut. This too might be more effective if they had any power as well!
I guess my point is that the Democrats could tout high speed rail, infrastructure spending, and how the bill was a little less than last year’s transportation bill (economists say we don’t want to cut spending too much as we are in the recovery) but I really couldn’t believe that either side believed their talking points.
People like Flake and Hensarling would be much more effective (and the blue dog Democrats who are also “fiscal hawks”), would be much more effective if they crossed the aisle with each other and formed alliances on the fiscal issue. I don’t see why that is offlimits, other than “You’re going to piss off ‘The party!’. Oh and if you piss off the party they won’t let you back into Washington.
During Kagan’s testimony she talked about being “public servant”. BS! She was a servant for a political party pretending to be a “public servant”. All of the political appointees are. Yet we still use the term “public servant”… disgusting.
To bring this back on topic.. so SB1070′s wife gave me an unsolicited e-mail the other day…
July 29, 2010, 8:26 pmORID says:
I guess I simply don’t believe that the federal power in the field of regulation of illegal aliens is exclusive. However I believe the federal power in the field of regulation of immigration (anyone here legally) is exclusive.
July 29, 2010, 8:50 pmBravo, Orin! says:
Orin,
Thank you for your modesty.
Far too often, I see lawyers on TV who are commenting outside their areas of specialty. As a lawyer myself, I know they’re talking out of their asses, but the lay public does not.
Obviously, what they are doing does a great disservice to public discourse.
Far too few lawyers are willing to reveal the limits of what they know and don’t know. At dinner parties, a lot of my lawyer friends will offer authoritative opinions on things. When I don’t know, I always tell people flatly, “I don’t know. I don’t practice in that area. I have no idea.” This seems to earn some disdain for the quality of my legal mind, but I don’t care.
Thank you for being honest. It’s an intellectual virtue that even some of your co-conspirators could imitate. I caught one on NPR’s On Point the other evening whom I suspected was unwilling to profess his ignorance of some points.
July 29, 2010, 8:55 pmMogden says:
According to the Constitution, the federal government has no power to regulate immigration (as opposed to naturalization). So the constitutional outcome is for the federal laws to be thrown out in favor of state laws such as Arizona’s.
July 29, 2010, 9:32 pmjuris imprudent says:
A state can’t sue to have the executive branch enforce the law.
Um, wasn’t that exactly what Massachusetts did, successfully no less, in Massachusetts v. EPA?
July 29, 2010, 10:02 pmJoe says:
According to the Constitution, the federal government has no power to regulate immigration (as opposed to naturalization). So the constitutional outcome is for the federal laws to be thrown out in favor of state laws such as Arizona’s.
“No” power? What if there is an influx of people immigrating here solely for commercial purposes to build an interstate highway or to join some national meatpacking corporation? Does the Constitution say Congress had no power to regulate such an aspect of interstate and/or international commerce?
I put aside that whatever YOU think the Constitution means (and it would require some interpretation since it doesn’t explicitly say it) this is not what it was generally understood to say since at the very least the latter portion of the 19th Century.
July 29, 2010, 10:10 pmRicardo says:
Sure there is. It’s Title 8 of the U.S. Code. In Pennsylvania v. Nelson, the Supreme Court held a state prosecution for sedition against the United States was preempted by the federal Smith Act. Even if SB1070 merely complements federal law (which is not quite true) it can still be preempted.
July 29, 2010, 10:13 pmjuris imprudent says:
Dilan, you should’ve conceded after you slid off on the “affects foreign policy” tangent. You essentially conceded DMN’s point and tried to move the goal posts – and then went south from there.
Bad form. You are usually better than that.
July 29, 2010, 10:21 pmRicardo says:
That is not correct. The decision leaves ARS 11–1051(F) in tact which says that no state or local official shall be prohibited from checking the immigration status of anyone. What the court struck down was the mandatory check on arrestees and detainees when there is reasonable suspicion, among other things.
July 29, 2010, 10:26 pmDavid M. Nieporent says:
No, I’ll readily concede that they’re smarter than you. I may concede that there are certain attributes in which they’re superior to me — some of them are better writers, for instance. But smarter? No.
Did it “overrule” Crosby? No, but it called it into question. And I’m not the only one to note that.
But turn your own question around and answer it: if Crosby is as broad as you think it is, how come the dissenters in Medellin didn’t cite it?
Dilan, it’s really pathetic how liberals have to desperately run to racism every time they lose an argument. (And, indeed, I’ve never said anything about my view on what I want to do to Mexicans.)
Quite simply, no. How much Mexico cares is completely irrelevant. (Don’t you think they cared in Medellin?)
In my universe, the only place “foreign policy” impacts on preemption is treaties, as the Supremacy Clause refers to treaties, not “foreign policy.” Try reading the Constitution sometime. Seriously.
July 30, 2010, 12:52 amRicardo says:
As I understand it, that used to be the case.
But U.S. v. Guest (right to interstate travel), Crandall v. Nevada (right to leave state without paying a tax), and Edwards v. California (right to transport indigents without restriction to a state) all invalidate restrictions on interstate travel and by implication probably invalidate any restriction on residing in a particular state.
At the very least, if California wants to send an undesirable to Nevada, Nevada would by extension be able to send the undesirable right back to California and California would have no legal right to refuse entry. That seems to imply a right to reside in any state.
July 30, 2010, 1:49 amcboldt says:
Ricardo – thanks for the cite to Edwards v. Ca. Jackson’s concurrence is interesting, for the grounds upon which he reaches the conclusion, privileges and immunities; compared with the majority, which uses the commerce clause.
July 30, 2010, 7:06 amNow I’m left wondering whether or not the state has the power to remove an undesirable person (in Edwards v. Ca., the condition of being indigent), and if so, what criteria or limitations circumscribe that power.
cboldt says:
In Edwards v. Ca., the statute forbidding, essentially, the “importing” of an indigent person, was struck down as “not a valid exercise of the police power of California, that it imposes an unconstitutional burden upon interstate commerce.”
July 30, 2010, 7:31 amThat same logic seems to pertain to state statutes that forbid the importing of an illegal alien. If not, why not?
The concurring opinions of Edwards v. Ca. make significance of the citizenship of the indigent person. The majority does not condition its conclusion on citizenship, finding the right to freedom of interstate movement to be independent of being a citizen of the US.
The majority seems to say that “the moral pestilence of vagabonds, and possibly convicts” is sufficient grounds for removal, but perhaps not “the moral pestilence of paupers.”
memomachine says:
Hmmmm.
@ Ricardo
Thanks for the update … I think … because that seems a bit confusing.
July 30, 2010, 9:31 ammemomachine says:
Hmmmmm.
@ Dilan Esper
Yes you damn well did call me a racist you fucking asshole.
Or don’t you remember this craptacular piece of bullshit:
Liberal jackholes like you have made calling people racist a part of your political toolbox because people tend to run from it rather than confront it. I don’t run from bullshit like this. If you’ve got proof of that assertion then put it forth. Otherwise you’ve proven yourself to be a complete and utter fuckhead not worth the time to read or respond to.
Conservatives have proven again and again that we want the borders to be secure against *everyone* regardless of color.
You utter imbecilic twit.
July 30, 2010, 9:44 amsardonic_sob says:
Here’s something I don’t get.
The Feds are claiming, among other things, that the deluge of illegal aliens referred to them for processing would put undue strain on their system and upset their own plans and strategies for prioritizing such enforcement.
Well and good, but all ICE has to do is issue a memo to AZ law enforcement to the effect of, “No referrals regarding immigration status will be accepted from any AZ LEA. Thank you and good night.” The AZ legislature, let alone the AZ LEA, can’t tell ICE to even pick up the phone if caller ID says it’s coming from AZ, never mind make them review referrals or accept detainees.
Or would doing that that be even more politically idiotic than what they’re already doing?
July 30, 2010, 9:59 amsardonic_sob says:
Which additional requirements would these be?
July 30, 2010, 10:01 amORID says:
sardonic,
This is in the footnote of De Canas:
Of course, state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress… But California Code § 2805 appears to be designed to protect the opportunities of lawfully admitted aliens for obtaining and holding jobs, rather than to add to their burdens. The question whether § 2805 (a) nevertheless in fact imposes burdens bringing it into conflict with the INA is open for inquiry on remand. See Part III, infra.
Are people even reading the opinions? While I disagree with the legal theory, the judge in this case did look at case law and applied it to the best of her ability.
If a law adds undue burdens on legal aliens, it is preempted.
July 30, 2010, 10:08 amsardonic_sob says:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
A state putting its militia on an international border would not constitute an act of treason. (Though if the US military tried to disperse them, presuming a constitutional justification for that could be found, resisting such effort to disperse them unquestionably would.)
I await with glee the first time some State Department official is tried for treason on the grounds that they gave a grant to a charity that turned out to be a front for Hamas. The fact that it will never ever happen in a billion billion years is irrelevant. Sometimes wanting is better than having.
July 30, 2010, 10:11 amWhitehall says:
Here’s another example of Obama Administration immigration policy development that would side-step the Constitutional processes.
http://www.washingtontimes.com/news/2010/jul/29/memo-outlines-backdoor-amnesty-plan-for-obama/?page=1
Of course, one could see this as a deliberate leak for electioneering purposes. Still, glad to see some Congressmen calling them on its inappropriateness.
July 30, 2010, 11:52 amDilan Esper says:
Conservatives have proven again and again that we want the borders to be secure against *everyone* regardless of color.
I don’t really want to have this argument here, but since you brought it up, conservatives’ record on race in America, dating back at least as far as National Review supporting segregation in the 1950′s, is awful. Conservatives like Charles Murray are the ones pushing the arguments that blacks are less intelligent than whites. Conservatives like Heather MacDonald are the ones pushing the arguments that the police should be allowed to engage in racial profiling. Conservatives like Michelle Malkin are the ones pushing the arguments that the government should actively discriminate against Muslims.
And yes, on immigration, many, many conservative groups are pushing the argument that we need to specifically reduce immigration of poorer populations from South and Central America, because they supposedly have more babies, don’t learn English, and are more likely to be criminals.
Conservatives need to do a lot of work to whiten their sepulcher on issues of race. Maybe you should get to work on that rather than acting all insulted when someone points this out.
July 30, 2010, 2:05 pmDilan Esper says:
In my universe, the only place “foreign policy” impacts on preemption is treaties, as the Supremacy Clause refers to treaties, not “foreign policy.” Try reading the Constitution sometime. Seriously.
In other words, David, you believe that the President has no authority to conduct foreign policy free from state interference at all, except through the negotiation of treaties. Wow.
You are just a complete simpleton. “Just read the Constitution” means “I don’t care about either the hard work of over 200 years of Supreme Court and lower court decisions or about the practical problems that would result from my view being adopted, I would rather nitpick words in the Supremacy Clause than deal with any of that”.
The fact that the courts DO deal with that is basically proof that they ARE smarter than you, David.
July 30, 2010, 2:12 pmTom W. says:
Judge Bolton’s ruling highlights why ordinances and orders creating “sanctuary” cities (e.g., in Los Angeles,San Francisco, etc.) are preempted by federal law and are therefore invalid. Indeed, if a law seeking to enforce federal law is preempted, an ordinance that expressly conflicts with federal law is plainly invalid. Police in those jurisdictions should be free to disregard the city’s “sanctuary” status and, where they have probable cause, transfer illegal aliens in their custody to immigration for deportation proceedings. The city could not take action against any officer who failed to heed the dictates of the invalid sanctuary law, since any such action would itself be invalid and expose the city to liability for harm caused to the officer.
August 2, 2010, 3:35 pm