Pray for the people of Colorado Springs!
Wednesday, June 27, 2012
Tuesday, June 26, 2012
Scalia Joins Barker in Dissent - Arizona et al v. United States
Scalia on Arizona et al v. United States
The United States is an indivisible “Union of sovereign States.” (Hinderlider v. La Plata River & Cherry Creek Ditch
Co., 304 U. S. 92, 104 -- 1938)
Today’s opinion, approving virtually all of the Ninth
Circuit’s injunction against enforcement of the four challenged provisions of
Arizona’s law, deprives States of what most would consider the defining
characteristic of sovereignty: the power to exclude from the sovereign’s
territory people who have no right to be there.
Neither the Constitution itself nor even any law passed
by Congress supports this result.
I dissent.
(*CLAP-CLAP-CLAP*)
As a sovereign, Arizona has the inherent power to exclude
persons from its territory, subject only to those limitations expressed in the
Constitution or constitutionally imposed by Congress.
That power to exclude has long been recognized as inherent
in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations
stated: “The sovereign may forbid the entrance of his territory either to
foreigners in general, or in particular cases, or to certain persons, or for
certain particular purposes, according as he may think it advantageous to the
state. There is nothing in all this, that does not flow from the rights of
domain and sovereignty: everyone is obliged to pay respect to the prohibition;
and whoever dares violate it, incurs the penalty decreed to render it
effectual.”
UNDERSTAND, FOLKS, THIS REALITY AS UNDERSTOOD BY OUR
FOUNDERS.
UNDERSTAND, FOLKS, OUR FOUNDERS - AND OUR CONSTITUTION
- ACKNOWLEDGED STATES AS SOVEREIGN WITHIN A FEDERAL UNION OF LIMITED POWERS.
YES... ONE OF THOSE POWERS BEING THE AUTHORITY OF THE FEDERAL CONGRESS TO MAKE
RULES "ESTABLISH(ING) AN UNIFORM RULE OF NATURALIZATION," BUT THEN
THAT'S THE WHOLE POINT HERE, ISN'T IT - CONGRESS *HAS* ESTABLISHED SUCH LAWS
AND THE EXECUTIVE BRANCH AND A MAJORITY OF MEMBERS OF THE SUPREME COURT OF THE
UNITED STATES HAVE OPTED TO BYPASS THESE LAWS WHILE ARIZONA WAS ATTEMPTING TO
SUPPORT THEM!
There is no doubt that “before the adoption of the
constitution of the United States” each State had the authority to “prevent itself
from being burdened by an influx of persons.” (Mayor of New York v. Miln, 11
Pet. 102, 132– 133 -- 1837) [T]he Constitution did not strip the States of that
authority.
AGAIN... THE CONSTITUTION DID NOT STRIP THE STATES OF
THAT AUTHORITY!
To the contrary, two of the Constitution’s provisions
were designed to enable the States to prevent “the intrusion of obnoxious
aliens through other States.”
FIRST SOME BACKGROUND...
The Articles of Confederation had provided that “the free
inhabitants of each of these States, paupers, vagabonds and fugitives from
justice excepted, shall be entitled to all privileges and immunities of free
citizens in the several States.” Articles of Confederation, Art. IV. This meant
that an unwelcome alien could obtain all the rights of a citizen of one State simply
by first becoming an inhabitant of another.
NOW... READ ON...
To remedy this, the Constitution’s Privileges and
Immunities Clause provided that “the Citizens of each State shall be entitled
to all Privileges and Immunities of Citizens in the several States.”
READ ON...
But if one State had particularly lax citizenship
standards, it might still serve as a gateway for the entry of “obnoxious
aliens” into other States.
This problem was solved “by authorizing the general
government to establish a uniform rule of naturalization throughout the United
States.”
In other words, the naturalization power was given to
Congress not to abrogate States’ power to exclude those they did not want, but
to vindicate it.
YES...!!!
Two other provisions of the Constitution are an
acknowledgment of the States’ sovereign interest in protecting their borders.
Article I provides that “no State shall, without the
Consent of the Congress, lay any Imposts or Duties on Imports or Exports,
except what may be absolutely necessary for executing it’s inspection Laws.” This
assumed what everyone assumed: that the States could exclude from their
territory dangerous or unwholesome goods.
A later portion of the same section provides that “no
State shall, without the Consent of Congress, . . . engage in War, unless
actually invaded, or in such imminent Danger as will not admit of delay.” This
limits the States’ sovereignty (in a way not relevant here) but leaves intact
their inherent power to protect their territory.
Notwithstanding “the myth of an era of unrestricted immigration”
in the first 100 years of the Republic, the States enacted numerous laws
restricting the immigration of certain classes of aliens, including convicted
criminals, indigents, persons with contagious diseases, and (in Southern
States) freed blacks. State laws not only provided for the removal of unwanted
immigrants but also imposed penalties on unlawfully present aliens and those
who aided their immigration. In fact, the controversy surrounding the Alien and
Sedition Acts involved a debate over whether, under the Constitution, the
States had exclusive authority to enact such immigration laws.
SCALIA GOES INTO MORE DETAIL, BUT YOU GET THE IDEA,
FOLKS.
One would conclude from the foregoing that after the adoption
of the Constitution there was some doubt about the power of the Federal
Government to control immigration, but no doubt about the power of the States
to do so. Since the founding era (though not immediately), doubt about the
Federal Government’s power has disappeared.
BUT UNFORTUNATELY, IN ITS PLACE, THERE'S ARISEN DOUBT
ABOUT THE STATES' POWERS. AS SCALIA SHOWS, THESE DOUBTS ARE UNFOUNDED AND HAVE
THUS LED TO THE ARIZONA DECISION'S ASSAULT UPON THE CONSTITUTION!
In light of the predominance of federal immigration restrictions
in modern times, it is easy to lose sight of the States’ traditional role in
regulating immigration — and to overlook their sovereign prerogative to do so.
I accept as a given that State regulation is excluded by the Constitution when
(1) it has been prohibited by a valid federal law, or
(2) it conflicts with federal regulation — when, for
example, it admits those whom federal regulation would exclude, or excludes
those whom federal regulation would admit.
BUT THAT'S NOT THE CASE WITH ARIZONA'S LAW! IT'S JUST
THE OPPOSITE...!!!
Possibility (1) need not be considered here: there is no federal
law prohibiting the States’ sovereign power to exclude (assuming federal authority
to enact such a law).
The mere existence of federal action in the immigration
area — and the so-called field preemption arising from that action, upon which
the Court’s opinion so heavily relies — cannot be regarded as such a
prohibition.
We are not talking here about a federal law prohibiting
the States from regulating bubble-gum advertising, or even the construction of
nuclear plants. We are talking about a federal law going to the core of state
sovereignty: the power to exclude.
Like elimination of the States’ other inherent sovereign
power, immunity from suit, elimination of the States’ sovereign power to
exclude requires that “Congress . . . unequivocally express its intent to
abrogate.” Implicit “field preemption” will not do.
THIS IS WHAT I'VE BEEN SAYING ALL ALONG!
Nor can federal power over illegal immigration be deemed
exclusive because of what the Court’s opinion solicitously calls “foreign
countries’ concerns about the status, safety, and security of their nationals
in the United States.”
The Constitution gives all those on our shores the
protections of the Bill of Rights — but just as those rights are not expanded
for foreign nationals because of their countries’ views (some countries, for
example, have recently discovered the death penalty to be barbaric), neither
are the fundamental sovereign powers of the States abridged to accommodate
foreign countries’ views.
YES!
KEEP READING - THE FOLLOWING IS A KEY POINT:
Even in its international relations, the Federal
Government must live with the inconvenient fact that it is a Union of
independent States, who have their own sovereign powers. This is not the first
time it has found that a nuisance and a bother in the conduct of foreign
policy. Four years ago, for example, the Government importuned us to interfere
with thoroughly constitutional state judicial procedures in the criminal trial
of foreign nationals because the international community, and even an opinion
of the International Court of Justice, disapproved them. (See Medellín v.
Texas, 552 U. S. 491 -- 2008) We rejected that request, as we should reject the
Executive’s invocation of foreign-affairs considerations here.
Though it may upset foreign powers — and even when the
Federal Government desperately wants to avoid upsetting foreign powers — the States
have the right to protect their borders against foreign nationals, just as they
have the right to execute foreign nationals for murder.
YES...!!!
What this case comes down to, then, is whether the
Arizona law conflicts with federal immigration law — whether it excludes those
whom federal law would admit, or admits those whom federal law would exclude.
It does not purport to do so.
It applies only to aliens who neither possess a privilege
to be present under federal law nor have been removed pursuant to the Federal
Government’s inherent authority.
(*NOD*)
Arizona is entitled to have “its own immigration policy” —
including a more rigorous enforcement policy — so long as that does not
conflict with federal law. The Court says, as though the point is utterly
dispositive, that “it is not a crime for a removable alien to remain present in
the United States.”
IN WHAT SENSE...? IF THE LAW IS BEING VIOLATED BY THE
ILLEGAL PRESENCE IN OUR COUNTRY OF THE ILLEGAL ALIEN...
(*SCATCHING MY HEAD*)
It is not a federal crime, to be sure.
AGAIN... I DON'T GET IT. WE'VE GONE OVER THIS BEFORE.
I'M SIMPLY NOT GETTING WHERE KENNEDY (OR APPARENTLY SCALIA) GETS THE NOTION
THAT BEING HERE ILLEGALLY ISN'T A FEDERAL CRIME WHEN IT'S THE FEDERAL
GOVERNMENT WHICH MADE BEING HERE ILLEGALLY... er... ILLEGAL?
But there is no reason Arizona cannot make it a state
crime for a removable alien (or any illegal alien, for that matter) to remain
present in Arizona.
OK. I SUPPOSE THAT MAKES THE ABOVE POINT MOOT... BUT I
STILL DON'T GET IT AND NONE OF MY LAWYER FRIENDS CAN EXPLAIN IT TO ME.
(*SHRUG*)
[Federal] statutory limitations upon the actions of
federal officers in enforcing the United States’ power to protect its borders
do not on their face apply to the actions of state officers in enforcing the
State’s power to protect its borders.
[U]nless and until [illegal] aliens have been given the
right to remain, Arizona is entitled to arrest them and at least bring them to
federal officials’ attention, which is all that §6 necessarily entails. In my view,
the State can go further than this, and punish them for their unlawful entry
and presence in Arizona.
It is beyond question that a State may make violation of
federal law a violation of state law as well. We have held that to be so even
when the interest protected is a distinctively federal interest...
The brief for the Government in this case asserted that
“the Executive Branch’s ability to exercise discretion and set priorities is
particularly important because of the need to allocate scarce enforcement
resources wisely.” Of course there is no reason why the Federal Executive’s
need to allocate its scarce enforcement resources should disable Arizona from
devoting its resources to illegal immigration in Arizona that in its view the
Federal Executive has given short shrift.
(*CLAP-CLAP-CLAP*)
Must Arizona’s ability to protect its borders yield to
the reality that Congress has provided inadequate funding for federal
enforcement — or, even worse, to the Executive’s unwise targeting of that
funding?
SURELY NOT! WHY THE VERY IDEA IS LAUGHABLE!
[T]o say, as the Court does, that Arizona contradicts
federal law by enforcing applications of the Immigration Act that the President
declines to enforce boggles the mind.
(*NOD*)
Are the sovereign States at the mercy of the Federal
Executive’s refusal to enforce the Nation’s immigration laws?
APPARENTLY SO - THANKS TO JUSTICES GINSBURG, BREYER,
SOTOMAYOR, KENNEDY, AND ROBERTS! YES... ROBERTS! I PREDICTED SUCH BEHAVIOR FROM
ROBERTS WHEN HE WAS NOMINATED. YES... ROBERTS MAY BE "TO THE RIGHT"
OF KENNEDY, BUT LIKE KENNEDY, ROBERTS HAS LITTLE RESPECT FOR THE FOUNDERS OR
OUR CONSTITUTION AS WRITTEN AND UNDERSTOOD AT THE TIME OF ITS WRITING AND
APPROVAL VIA THE DEMOCRATIC PROCESS.
Are the sovereign States at the mercy of the Federal
Executive’s refusal to enforce the Nation’s immigration laws? A good way of
answering that question is to ask: Would the States conceivably have entered
into the Union if the Constitution itself contained the Court’s holding?
[I]magine a provision — perhaps inserted right after Art.
I, §8, cl. 4, the Naturalization Clause — which included among the enumerated
powers of Congress “To establish Limitations upon Immigration that will be
exclusive and that will be enforced only to the extent the President deems
appropriate.” The delegates to the Grand Convention would have rushed to the
exits.
(*NOD*)
Arizona bears the brunt of the country’s illegal
immigration problem. Its citizens feel themselves under siege by large numbers
of illegal immigrants who invade their property, strain their social services,
and even place their lives in jeopardy. Federal officials have been unable to
remedy the problem, and indeed have recently shown that they are unwilling to
do so. Thousands of Arizona’s estimated 400,000 illegal immigrants — including
not just children but men and women under 30 — are now assured immunity from enforcement,
and will be able to compete openly with Arizona citizens for employment.
Arizona has moved to protect its sovereignty — not in contradiction
of federal law, but in complete compliance with it.
The laws under challenge here do not extend or revise
federal immigration restrictions, but merely enforce those restrictions more
effectively.
If securing its territory in this fashion is not within
the power of Arizona, we should cease referring to it as a sovereign State.
I dissent.
Monday, June 25, 2012
Arizona et al. v. United States (Justice Barker Responds!)
Arizona et al. v. United States
No. 11–182. Argued April 25, 2012 — Decided June 25, 2012
From the Majority Opinion as delivered by Justice Kennedy:
Congress has specified categories of aliens who may not
be admitted to the United States.
Unlawful entry and unlawful re-entry into the country are
federal offenses.
Once here, aliens are required to register with the Federal
Government and to carry proof of status on their person.
Failure to do so is a federal misdemeanor.
Federal law also authorizes States to deny non-citizens a
range of public benefits and it imposes sanctions on employers who hire
unauthorized workers.
Congress has specified which aliens may be removed from
the United States and the procedures for doing so.
Aliens may be removed if they were inadmissible at the time
of entry, have been convicted of certain crimes, or meet other criteria set by
federal law.
Removal is a civil, not criminal, matter.
Yet the GROUNDS for removal are "unlawful"
entry or re-entry - both acts being federal offenses.
Yet failure to register with the Federal Government is
a federal misdemeanor.
Yet failure to carry proof of status on their persons
is a federal misdemeanor.
A principal feature of the removal system is the broad
discretion exercised by immigration officials.
Up to and including "discretion" to refuse to
uphold federal law...??? I think not!
Federal officials, as an initial matter, must decide
whether it makes sense to pursue removal at all.
In other words, enforcement of existing law is...
discretionary? (But in any case, this is tangential to the matter at hand;
Arizona never claimed the power to deport illegal aliens. Basically, all
Arizona law demanded was that federal immigration officials do their job.)
If removal proceedings commence, aliens may seek asylum
and other discretionary relief allowing them to remain in the country or at
least to leave without formal removal.
Again... no one was ever disputing this.
Discretion in the enforcement of immigration law embraces
immediate human concerns.
Depends how the law is written by Congress!
Unauthorized workers trying to support their families,
for example, likely pose less danger than alien smugglers or aliens who commit
a serious crime.
Fine. But while no one is arguing against the existence
of prosecutorial discretion, there's a huge difference between prioritizing
enforcement of the law vs. refusing to enforce the law. Only Congress can
"exempt" entire categories of illegal behavior from enforcement and if
this is their will this will must be expressed concretely in law - via statute.
The equities of an individual case may turn on many
factors, including whether the alien has children born in the United States,
long ties to the community, or a record of distinguished military service.
Blah, blah, blah... again... this is for Congress to
decide - not the Chief Executive (he who is sworn to UPHOLD the law) and not a
judge or even the Supreme Court as a body unless the mechanism is to overturn
the law on Constitutional grounds. (The opposite is occurring here; the High
Court is pinning its decision on the dubious claim that Congress "intended"
their Constitutional laws to be unenforced.)
Some discretionary decisions involve policy choices that bear
on this Nation’s international relations. Returning an alien to his own country
may be deemed inappropriate even where he has committed a removable offense or
fails to meet the criteria for admission. The foreign state maybe mired in
civil war, complicit in political persecution, or enduring conditions that
create a real risk that the alien or his family will be harmed upon return. The
dynamic nature of relations with other countries requires the Executive Branch
to ensure that enforcement policies are consistent with this Nation’s foreign
policy with respect to these and other realities.
An unacceptably slippery slope. In any case, we're not
talking about targeted enforcement (or rather targeted non-enforcement) based
upon foreign nationality in relation to a specific foreign relations issue
which is of such immediate and important nature that the President must deal
with it unilaterally; we're talking about illegal aliens in toto under normal
circumstances within a framework of existing law.
[S]tate laws are preempted when they conflict with
federal law.
True... however... Arizona's law did NOT conflict with
federal law.
In preemption analysis, courts should assume that “the
historic police powers of the States” are not superseded “unless that was the
clear and manifest purpose of Congress.”
Folks... it was the Obama administration which claimed
Arizona's law was in conflict with Federal Law - it wasn't Congress! Here's
where the High Court majority's slight-of-hand shows itself! The High Court
majority deliberately conflates the actual constitutional powers of Congress
with the actions of an out of control Executive Branch which is itself failing
- deliberately failing - to abide by the Laws and clear intent of Congress!
Section 3 of Arizona's SB 1070 creates a new state misdemeanor.
It forbids the “willful failure to complete or carry an alien registration
document . . . in violation of 8 United States Code section 1304(e) or
1306(a).” In effect, §3 adds a state-law penalty for conduct proscribed by
federal law.
Yeah? So...???
The United States contends that this state enforcement
mechanism intrudes on the field of alien registration...
How...??? (That's ridiculous!)
In 1940, as international conflict spread, Congress added
to federal immigration law a “complete system for alien registration.” The new
federal law struck a careful balance. It punished an alien’s willful failure to
register but did not require aliens to carry identification cards.
Hmm... (Read on...)
Federal law now includes a requirement that aliens carry
proof of registration...
OK, so we're back to federal law requiring aliens to
CARRY proof of registration... which is what Arizona's SB 1070 required! (So
where's the conflict with federal law...???)
Aliens who remain in the country for more than 30 days
must apply for registration and be fingerprinted.
According to existing FEDERAL law.
Where Congress occupies an entire field, as it has in the
field of alien registration, even complementary state regulation is
impermissible. Field preemption reflects a congressional decision to foreclose
any state regulation in the area, even if it is parallel to federal standards.
OK, folks... understand... at this point the High Court
majority is basing their ruling NOT on the Constitution itself, but upon past
decisions of... er... itself as an institution. While the High Court majority
is CLAIMING that it is CONGRESS which has foreclosed Arizona's ability (or the
ability of ANY state) to enact laws which MIRROR federal law, this is not the
case. Indeed, CLEARLY what the Supreme Court is doing is UNDERCUTTING federal
law and enacted by Congress! (Again... the High Court majority is siding with
the EXECUTIVE BRANCH in opposition to BOTH Arizona AND the Congress of the
United States whose will is demonstrated via existing statute - which, again,
Arizona is MIRRORING... not undercutting!
Federal law makes a single sovereign responsible for
maintaining a comprehensive and unified system to keep track of aliens within
the Nation’s borders. If §3 of the Arizona statute were valid, every State
could give itself independent authority to prosecute federal registration violations...
No! The states would be prosecuting violation of STATE
law which was written to mirror federal law! Arizona's SB 1070 would apply only
in Arizona. And again, since Arizona's SB 1070 MIRRORS rather than contradicts
federal law... (*SHRUG*)... there is simply no Constitutional basis for the
High Court to overturn it on these grounds. Period.
...“diminishing the Federal Government’s control over
enforcement” and “detracting from the ‘integrated scheme of regulation’ created
by Congress.”
Nonsense. Gobbly-gook.
Were §3 to come into force, the State would have the
power to bring criminal charges against individuals for violating a federal law
even in circumstances where federal officials in charge of the comprehensive
scheme determine that prosecution would frustrate federal policies.
OK. Let's say we buy this on a case by case basis. Just
for the sake of argument. But we're not talking "case by case," we're
talking "blanket." We're talking prosecutorial "discretion"
which goes so far as to become executive branch undermining of actual
Congressional statute - i.e. undermining of "The Law." What the High
Court majority seems to be saying is that federal executive branch
"policies" of the moment can somehow override the actual LAW absent
some sort of immediacy or "special circumstances" that preclude the
reformulation of actual law!
There is a further intrusion upon the federal scheme.
Even where federal authorities believe prosecution is appropriate, there is an
inconsistency between §3 and federal law with respect to penalties. Under
federal law, the failure to carry registration papers is a misdemeanor that may
be punished by a fine, imprisonment, or a term of probation. State law, by
contrast, rules out probation as a possible sentence (and also eliminates the
possibility of a pardon). This state framework of sanctions creates a conflict
with the plan Congress put in place.
So then don't strike down the law - simply limit
penalties of the state law to those which exist under federal law.
Unlike §3, which replicates federal statutory
requirements, §5(C) enacts a state criminal prohibition where no federal
counterpart exists. The provision makes it a state misdemeanor for “an
unauthorized alien to knowingly apply for work, solicit work in a public place
or perform work as an employee or independent contractor” in Arizona.
And...? So...? What's the problem? This state law is
CLEARLY complimentary to federal law - not in conflict with it.
The United States contends that the provision upsets the
balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and
must be preempted as an obstacle to the federal plan of regulation and control.
Folks... again... unlawful entry and unlawful re-entry
into the country are federal offenses. If it's unlawful to be here (the U.S.)
in the first place than certainly it's illegal to be in Arizona in the first
place and thus... Arizona's SB 1070 §5(C) is CLEARLY complementary to federal
law - NOT in conflict with it.
The legislative background of IRCA underscores the fact that
Congress made a deliberate choice not to impose criminal penalties on aliens
who seek, or engage in, unauthorized employment. ... Proposals to make unauthorized
work a criminal offense were debated and discussed during the long process of
drafting IRCA. Congress rejected them. In the end, IRCA’s framework reflects a
considered judgment that making criminals out of aliens engaged in unauthorized
work — aliens who already face the possibility of employer exploitation because
of their removable status — would be inconsistent with federal policy and objectives.
OK. But is there any paper trail showing the Congress
specifically meant for individual states to lack such power? In other words,
just because Congress declines to create a "federal offence" does
this mean that the states lack the power to create state laws whose purpose is
to further the clear intent of federal law which provides that unlawful entry
and unlawful re-entry into the country are federal offenses?
IRCA’s express preemption provision...is silent about
whether additional penalties may be imposed against the employees themselves.
Get this, folks... (Read on...)
Although §5(C) attempts to achieve one of the same goals
as federal law — the deterrence of unlawful employment — it involves a conflict
in the method of enforcement.
(*JUST SHAKING MY HEAD*)
The correct instruction to draw from the text, structure,
and history of IRCA is that Congress decided it would be inappropriate to
impose criminal penalties on aliens who seek or engage in unauthorized
employment.
I disagree! If Congress had meant to forbid individual
states from imposing criminal penalties on aliens who seek or engage in
authorized employment, then Congress would have written this into federal law!
In fact, they did so with regard to employers!
IRCA’s express preemption provision, which in most instances
bars States from imposing penalties on employers of unauthorized aliens, is
silent about whether additional penalties may be imposed against the employees
themselves.
(*SHRUG*)
As a general rule, it is not a crime for a removable
alien to remain present in the United States.
OF COURSE IT IS! IT'S AN ONGOING CRIME!
Section 6 of S. B. 1070 provides that a state officer, “without
a warrant, may arrest a person if the officer has probable cause to believe . .
. [the person] has committed any public offense that makes [him] removable from
the United States.” The United States argues that arrests authorized by this
statute would be an obstacle to the removal system Congress created.
SOUNDS INSANE, RIGHT?!
If the police stop someone based on nothing more than
possible removability, the usual predicate for an arrest is absent.
I don't see why. I don't see why because the above
"As a general rule, it is not a crime for a removable alien to remain
present in the United States" is simply insane!
Folks... if you become an "illegal alien" via
entering our borders illegally without proper approval and documentation then
how does STAYING - doubling down on the initial illegal act - render one NOT a
criminal? It's gobbly-gook! It's crazy!
Section 2(B) of S. B. 1070 requires state officers to
make a “reasonable attempt . . . to determine the immigration status” of any
person they stop, detain, or arrest on some other legitimate basis if
“reasonable suspicion exists that the person is an alien and is unlawfully
present in the United States.” The law also provides that “any person who is
arrested shall have the person’s immigration status determined before the
person is released.” The accepted way to perform these status checks is to
contact ICE, which maintains a database of immigration records.
Three limits are built into the state provision. First, a
detainee is presumed not to be an alien unlawfully present in the United States
if he or she provides a valid Arizona driver’s license or similar
identification. Second, officers “may not consider race, color or national
origin . . . except to the extent permitted by the United States [and] Arizona
Constitution[s].” Third, the provisions must be “implemented in a manner
consistent with federal law regulating immigration, protecting the civil rights
of all persons and respecting the privileges and immunities of United States
citizens.”
The United States and its amici contend that, even with
these limits, the State’s verification requirements pose an obstacle to the
framework Congress put in place.
Nonsense!
The first concern is the mandatory nature of the status
checks. The second is the possibility of prolonged detention while the checks
are being performed.
The mandatory nature ensures equal treatment; as to
"prolonged" detention... (Read on...)
Consultation between federal and state officials is an
important feature of the immigration system. Congress has made clear that no
formal agreement or special training needs to be in place for state officers to
“communicate with the [Federal Government] regarding the immigration status of
any individual, including reporting knowledge that a particular alien is not
lawfully present in the United States.” And Congress has obligated ICE to
respond to any request made by state officials for verification of a person’s
citizenship or immigration status. See §1373(c); see also §1226(d)(1)(A)
(requiring a system for determining whether individuals arrested for aggravated
felonies are aliens). ICE’s Law Enforcement Support Center operates “24 hours a
day, seven days a week, 365 days a year” and provides, among other things,
“immigration status, identity information and real-time assistance to local, state
and federal law enforcement agencies.”
In other words... existing federal law should make
"prolonged" detention a very rare occurrence indeed. If local
authorities seek to subvert existing law there are existing remedies for both
federal authorities AND arrestees to rely upon.
The United States argues that making status verification
mandatory interferes with the federal immigration scheme.
Ridiculous! (How so...?!?!)
Congress has done nothing to suggest it is inappropriate to
communicate with ICE in these situations... Indeed, it has encouraged the
sharing of information about possible immigration violations.
A federal statute regulating the public benefits provided
to qualified aliens in fact instructs that “no State or local government entity
may be prohibited, or in any way restricted, from sending to or receiving from ICE
information regarding the immigration status, lawful or unlawful, of an alien
in the United States.” The federal scheme thus leaves room for a policy
requiring state officials to contact ICE as a routine matter.
Yes! Obviously!
[I]f §2(B) only requires state officers to conduct a
status check during the course of an authorized, lawful detention or after a detainee
has been released, the provision likely would survive preemption — at least
absent some showing that it has other consequences that are adverse to federal
law and its objectives.
At this stage, without the benefit of a definitive
interpretation from the state courts, it would be inappropriate to assume §2(B)
will be construed in a way that creates a conflict with federal law. As a
result, the United States cannot prevail in its current challenge.
§2(B) stands! The heart of the bill stands!
§§3, 5(C), and 6 of S. B. 1070 are preempted.
I will continue this posting with the dissents of
Justices Scalia, Thomas, and Alito over the coming days...
Barker's Newsbites: Monday, June 25, 2012
Well, folks, it's a big day - and it's gonna be a big week - for the unveiling of the latest U.S. Supreme Court decisions.
I'll probably be posting a few "stand alone" posts on various decisions, but for the moment let me just address one point that goes to the heart of what Barker's Newsbites are all about:
NOTE: Every single news article concerning a Supreme Court ruling you read from the mainstream media - or niche media - which does NOT include a link to the actual case...
(*PAUSE*)
...that's evidence of my contention that the main goal of the media is (besides financial profit seeking of course) not so much to "inform" you as it is to manipulate you.
Why not provide the links? I'll tell you why not; because the last thing publishers, editors, journalists, and hack pundits want is an informed, educated readership which gets accustomed to seeking primary sources for their news "verification" and thus becomes impervious to ideological manipulation.
Anyway... on to today's newsbites!
Saturday, June 23, 2012
Friday, June 22, 2012
Barker's Newsbites: Friday, June 22, 2012
It was friggin' hot out today!
Thank God, thunder storms have broken the heat wave - at least for tonight.
Anyway... a little something different to celebrate a hot Friday!
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