May 18, 2010

"The Justice Department's official position as of now is that local law enforcement has the inherent authority to enforce federal immigration law."

"How can you blame someone for exercising authority that the department says they have?"

73 comments:

AlphaLiberal said...

Funny how much "inherent power" for various government officials the conservatives can discover when it suits their purposes.

This comes from the same guy who wrote also wrote memo's trying to whitewash torture policies, Roger Bybee. He has no credibility beyond Republican hacks.

Rialby said...

Yet another instance where Obama and/or his administration shoot their mouths off before they know what they're talking about.

AlphaLiberal said...

I was looking for an open thread to post this news story about a teacher using a hypothetical case of assassinating the President to teach the youth.

No such opportunity, so here it is.

If the partisan roles here were reversed this would be covered wall-to-wall on the cable news outlets.

The teacher should be fired for teaching the killing of the President.

Rialby said...

So, your position AL is that local law enforcement has no authority to enforce federal law?

Rialby said...

AL - horrible story. The teacher should be reprimanded.

I guess you're right about the role reversal. I can remember all of the hand wringing over the many assassination posts, articles, movies and novels about George W Bush. I'm sure you can point them out for me.

Rialby said...

AL - btw, I can teach you how to hyperlink if you cannot figure it out.

AlphaLiberal said...

I know how to hyperlink, thank you.

Rialby said...

Oh good. At least you know one thing.

Fred4Pres said...

Darn, it is annoying when the administration cannot take advantage of a racist law becuase it is the same as that administration's policy.

Obama needs to denounce himself as a racist.

AZDCbadger said...

Isn't Bybee's first name Jay?

Hoosier Daddy said...

Funny how much "inherent power" for various government officials the conservatives can discover when it suits their purposes.

Well, unlike providing free hot lunches for school childrens or determining how much salt my french fries should have, enforcing the sovereignty and security of the nation's borders is an inherent power of the government Alpha.

former law student said...

Big difference between state-level cops enforcing federal immigration law and state legislatures creating state immigration law for state-level cops to enforce.

Joe said...

state legislatures creating state immigration law for state-level cops to enforce. even if it mimics the Federal law? States have the right to regulate in any area that there is no Federal PRIMACY. State law and regulation cannot be LAXER than Federal Law. Have the Fed’s declared a “primacy” in this area? And cannot a state inquire as to the status of an arrestee or detainee? Meaning if it were California, and I arrest “Bob” can’t Cali ascertain “Bob’s” immigration status? What’s the difference here? A state is ascertaining status and then informing the Federal government when illegal status has been found. It’s what is SUPPOSED to happen. In fact, this is what “Sanctuary Cities” don’t do, isn’t it? They don’t determine legal status.

AlphaLiberal said...

"is an inherent power of the government"

Federal government is different than local government. Do you also think every state should have its own foreign policy?

I know, the answer depends on the situation and who is President.

Seven Machos said...

Alpha -- So the conservatives are using government power to solve a problem. You should be thrilled. Why aren't you?

Hoosier Daddy said...

Federal government is different than local government. Do you also think every state should have its own foreign policy?

Yes it is but when the Federal government abdicates its responsibility to enforce the border then it is up to the state government to ensure the security and soverignty of its land.

Actually Alpha, individual states engage in foreign policy all the time. Governors frequently visit foreign countries to entice them to bring business to their respective states.

Perhaps you can provide a logical and concise explanation as to why we should not enforce our immigration laws? If you are found to be living in the country illegally, please provide a reason why you should not be deported?

Scott M said...

@AL

The way I read that story, the statement "as of now" is entirely correct, whatever anyone's opinion of the issue is.

Funny how much "inherent power" for various government officials the conservatives can discover when it suits their purposes.

Circular argument. It's probably less funny than Kennedy arguing a governor shouldn't be able to appoint a senate replacement on the basis of a populist argument (with a GOP governor), only to turn around and argue against that same point of view when it's his seat that's vacating and the governor happens to be a Dem. Same ballpark in the humor department.

All of this rhetoric is beside the point. The border states are facing a real crisis RIGHT NOW and the federal government has ignored the issue for almost two decades. So, north of the border you have complacent fed, while south of the border you have a bad actor in the guise of a national government in Mexico. What are those borders state administrations, faced with such problems, supposed to do?

Hoosier Daddy said...

Alpha -- So the conservatives are using government power to solve a problem. You should be thrilled. Why aren't you?

Because the problem is securing the sovreignty of the United States.

Joe said...


Do you also think every state should have its own foreign policy?


Uh helllloooooo, AL this ISN'T Foreign Policy! AZ is NOT making a policy, it is enforcing EXISTING Federal policy....

You might want reconsider your idea or approach.

Scott M said...

Do you also think every state should have its own foreign policy?

That wouldn't cover immigration. Emigration, maybe. This is entirely domestic policy. Don't be fooled just because those breaking federal law are coming from outside the country.

c3 said...

The document, written in 2002 by the Justice Department's Office of Legal Counsel, concluded that state police officers have "inherent power" to arrest undocumented immigrants for violating federal law.

OK I'll say it:

Bush's fault !

The irony here is that this is not a liberal/conservative but an intra-party (Republican) conflict. Bush was no friend to the "no amnesty" conservative crowd with his proposed immigration reform. And now irony or ironies, his Justice Department memo may protect a state bill he himself may not have supported (or at least vigorously supported).

former law student said...

The Feds have preempted the field of immigration law under the Supremacy Clause and the Naturalization Clause. And no, state law cannot be stricter than federal law. See Plyler v. Doe, Hines v. Davidowitz, Truax v. Raich, etc. etc.

Hagar said...

The police does not "enforce" laws - Federal, State, or local. They arrest "on suspicion of" and turn the "suspect" over to the pertinent court, or other authorized agency, which will then investigate and determine if "enforcement" of the law in question is appropriate.

damikesc said...

Fls, can you point to how the AZ law is harsher than federal law?

Note: Feds ignoring their laws doesn't mean they don't exist.

former law student said...

I'm pretty sure law enforcement officers enforce the laws.

Seven Machos said...

FLS -- I just looked at the Constitution and I didn't see the word ratchet or theory.

Nevertheless, how is the Arizona law stricter than federal law? Does the Arizona law require a visa and federal law does not? Pray tell.

Scott M said...

The Feds have preempted the field of immigration law under the Supremacy Clause and the Naturalization Clause. And no, state law cannot be stricter than federal law. See Plyler v. Doe, Hines v. Davidowitz, Truax v. Raich, etc. etc.

All well and good, assuming you can prove the AZ law is more strict than existing federal law.

I believe the fed trumps state laws in regards to nuclear energy regulation as well. If a nuke plant weren't being operated safely in your state and the fed were completely ignoring the problem, what would be the recourse of the localities?

former law student said...

A commenter asserted that State law and regulation cannot be LAXER than Federal Law.

Supreme Court caselaw regarding the treatment of immigrants by states contradicts that assertion.

former law student said...

The resolution is simple. Let local law enforcement enforce Federal law.

Brian said...

@AL:
I know, the answer depends on the situation and who is President.

Nothing new, AL. I hate to say it, but Dems did it too. They're doing it now:
Obama's citizens brigade

Bush's citizens brigade

Seven Machos said...

The resolution is simple. Let local law enforcement enforce Federal law.

That's what the Arizona law is, FLS.

Joe said...


The resolution is simple. Let local law enforcement enforce Federal law.



Which, in effect, they are....

edutcher said...

Bottom line: AZ is winning against the Lefty establishment. I think it's about 18 (if I'm wrong on the number, correct me) states considering similar laws and San Diego is seeing its tourist trade going down the tubes after instituting a boycott against the state.

DeMint/Brewer '12, anyone?

AlphaLiberal said...

...

Do you also think every state should have its own foreign policy?

Why not? most of the cities in California do.

AJ Lynch said...

The main charge against the AZ law is it will lead to profiling.

How do the Feds enforce immigration laws yet they do not get accused of profiling? [theoretical question, of course, since the feds don't vigorously enforce laws unless they involve paying your taxes heh]

Hagar said...

FLS

The mayor of Albuquerque just directed the local police to ask all arrestees for proof of citizenship (thus no "racial profiling" involved) and to turn all that cannot furnish such over to ICE along with a recommendation that ICE enforce the Federal law.

former law student said...

7M -- Then why does the Arizona law not simply authorize Arizona Law Enforcement agencies to enforce Federal immigration law?

Scott M said...

Then why does the Arizona law not simply authorize Arizona Law Enforcement agencies to enforce Federal immigration law?

Why doesn't the federal government simply enforce their own laws, as they exist, now on the books and fully legal?

This isn't something silly like allowing a man to hit his husband as long as he does it on the steps of city hall (SC) or not being able to shoot a whale from a moving vehicle (WA). This is a very real problem and the lax, or non-existent, enforcement of existing federal law by the federal government has severe impact on the local economies, regardless of what that idiot mayor in LA says.

Scott M said...

"hit his husband" should have read "hit his wife". I almost took a left into same-sex marriage land.

traditionalguy said...

The double speak of the Big Barak Brother never ceases. He is all in favor of what ever policy he can then makes sure is sabotaged somehow along the way. How is his surge of fresh targets into the Afghan valleys doing at getting a Taliban surrender at the same time his announced withdrawal date of all forces closes in? So the Democrats say that they are all in favor of a secure border nand a real fence so long as no rational enforcement of the laws is allowed to stop the invasion.

former law student said...

The Arizona legislature created a class of crimes involving violations of immigration law, thus intruding on the domain of the Federal government. The Supreme Court struck down Pennsylvania's statute requiring immigrants to carry papers back in 1940, in Hines v. Davidowitz. This is like watching a bad movie for the third time.

Scott M said...

The Supreme Court struck down Pennsylvania's statute requiring immigrants to carry papers back in 1940, in Hines v. Davidowitz

So...what you're saying is that nobody in the country should be expected to have to produce ID at any time? Not citizens or legal immigrants here on work visas? No papers at all?

Or are immigrants the only class of people in this country free from carrying ID? I'm just trying to get my head around what you're trying to say.

Forgetting all the snark, what's your solution for this issue?

miller said...

So you're OK with requiring immigrants to show proof of legal residency as long as it's a Federal law that's being enforced?

I'm glad you agree with the haters, FLS.

WV: worcine - wolf-like

former law student said...

miller is correct

Hagar said...

Neither the State of Arizona nor the City of Albuquerque can "enforce" Federal laws. What they can do is to direct their police forces to cooperate with the applicable Federal authorities in the enforcement of Federal laws(as they should have been doing, all along) despite all suggestions to the contrary, and that is all either Arizona or Albuquerque is doing.

Hoosier Daddy said...

I just wish one of the resident lefties would tell me why our borders should not be secured and why those living in the country illegally should not be deported and why those wishing to emigrate to this country should not be expected to follow our immigration laws.

Rialby said...

The law currently on the books says that all Green Card holders MUST CARRY their documentation at all times. How does that fit with "Hines v. Davidowitz"?

miller said...

So it's not a matter of the law itself; it's a matter of which law is being enforced. The U.S. law which might be exactly the same as Arizona law. So it's OK to stop a person for being the wrong color as long as it's a U.S. law.

Amazing.

Rialby said...

Hoosier - They cannot do that because to do so would be to admit that they do not believe in border enforcement because they are hoping Hispanic voters save the existence of and their control of the welfare state.

See: Germany/Turkey, Britain/Pakistan, France/Algeria

Anne said...

Federal government is different than local government. Do you also think every state should have its own foreign policy?
I would think a law student would know the answer to this it is so simple.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Each state has the right to make and enforce its own laws.
And as far as states making laws that are more strict than federal law, it has always been such. No state can make a law that is laxer than federal law, but they are sovereign states, not just figuratively, but materially as well.
FLS - I might ask you if you have actually read the Constitution or are you just spewing what you've been told?

Rialby said...

The law states "Every alien in the United States shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations."

It also states, "Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him. Any alien who fails to comply with [these] provisions shall be guilty of a misdemeanor".

Hoosier Daddy said...

Hoosier - They cannot do that because to do so would be to admit that they do not believe in border enforcement because they are hoping Hispanic voters save the existence of and their control of the welfare state.

Oh I know that, I'm just attempting to see if any one of them actually has the stones to be honest about it. I've repeatedly asked the same exact question everytime this topic comes up and not a single liberal has ever addressed it which pretty much proves the point.

mark said...

This is not an immigration issue in Arizona - it's a public safety issue. The rate of serious crimes, including murder and kidnapping, skyrocketed in some cities along the border. And it's become clear that it's mostly due to a surge in illegal immigrants coupled with the drug wars south of the border spilling across it.

Surely the state has to take some action, and identifying the status of the people apprehended in criminal activities makes sense to most reasonable people in AZ and the rest of the country.

Since Federal supremacy is not doing anything to stop this wave of murder and kidnappings and protect the people who live in those cities - many of whom are legal or illegal immigrants who are often the first victims of these crimes - the state has to take some measures to identify and turn over to the Feds the criminal element among the illegals.

The focus of the discussion should be on public safety and Federal government's failure to do its job. Where are the lawsuits being filed to represent the families and the victims of this government inaction?

Rialby said...

Hey Alpha - next time, before you assassinate someone's character (see what I did there), you might want to get their name correct...

"This comes from the same guy who wrote also wrote memo's trying to whitewash torture policies, Roger Bybee. He has no credibility beyond Republican hacks."

I think you meant "Jay Bybee". Now back to your ad hominem attacks.

Dust Bunny Queen said...

Big difference between state-level cops enforcing federal immigration law and state legislatures creating state immigration law for state-level cops to enforce.

They AREN'T enforcing Federal Law.

The law states that once the determination has been made that the perpetrator of the other infraction for which they have been stopped is determined to be illegally in the country or suspected of being illegally in the country......they are turned over to the FEDERAL immigration authorities who will (supposedly)be enforcing the Federal law.

Duscany said...

Liberals don't oppose Arizona's new immigration law because they fear it will be racist. They oppose it because they fear it will be effective.

California is broke, bankrupt, and completely adrift due to illegal immigration. And the only policy liberals can devise to deal with it is to open the floodgates even more.

former law student said...

No, Section 13-1509 creates a new group of state crimes. Failure to carry your papers is a misdemeanor; repeated failure is a felony, as is failure to carry your papers while you have methamphetamine precursors in your possession or a dangerous instrument in your possession.

So if you have sudafed in your pocket when stopped, you have committed a state felony, because sudafed is a raw material used to make methamphetamine.

Also, if you are going to play softball when stopped, you have committed a state felony, because Arizona courts have held that bats are "dangerous instruments."

If you are sippig from a bottle of Bud when stopped, you have likewise committed a state felony.

Finally, if you are driving a car when stopped, you have also committed a state felony because Arizona courts have held that cars are "dangerous instruments."

Alex said...

Basically the liberals argument can be boiled down to:

the house is on fire, but the person trying to put out the fire is not following the LETTER of the law - so let the house burn down.

Alex said...

The focus of the discussion should be on public safety and Federal government's failure to do its job. Where are the lawsuits being filed to represent the families and the victims of this government inaction?

You can't prove there are any narco-terrorism problem along the border region. That's just more GOP scare-tactics to oppress brown people! I know this because my liberal hipster buddy told me so.

Cedarford said...

Rialby said...
So, your position AL is that local law enforcement has no authority to enforce federal law?

AL is just being stupid. In all other areas, the Federal government COMMANDS states and municipalities to enforce Federal law of face contempt charges.

More AL stupidity:

"This comes from the same guy who wrote also wrote memo's trying to whitewash torture policies, Roger Bybee. He has no credibility beyond Republican hacks."

Except that Obama's own Justice Dept stands by that interpretation. As they do behind a lot of Bush's "WOT" policies. Now even Holder is "thinking out loud" that Mirandizing Islamoid enemy combatants might not be so bright after all.
Of course now the Obamites have just returned to outsourcing enemy Islamoid interrogations as Bill Clinton did, through Rendition. The Saudis, Jordanians, Indians, Egyptians are all highly effective at getting good intel from Islamoids, expediently.

Flexo said...
This comment has been removed by the author.
Flexo said...

Congratulations FLS, you would make a great Obama Administration official in your gross ignorance of the law.

13-1509
A. In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code section 1304(e) or 1306(a). . . .
F. This section does not apply to a person who maintains authorization from the federal government to remain in the United States. . . .
H. A violation of this section is a class 1 misdemeanor, except that the maximum fine is one hundred dollars and for a first violation of this section is: the court shall not sentence the person to more than twenty days in jail and for a second or subsequent violation the court shall not sentence the person to more than thirty days in jail.


All 13-1509 does is make it a misdemeanor to violate 8 U.S.C. §§ 1304(e) or 1306(a). It is NOT a felony, even on repeated violations. And it expressly states that the section does not apply to those who are here legally.

Flexo said...

And there is NOTHING about carrying sudafed.

Brian said...

@Flexo:

I think we now know why FLS is a former law student.

By the way, AL hasn't responded to anything said in almost 4 hours. I guess he gave up.

former law student said...

H. A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR, EXCEPT THAT A VIOLATION OF THIS SECTION IS:

1. A CLASS 3 FELONY IF THE PERSON VIOLATES THIS SECTION WHILE IN POSSESSION OF ANY OF THE FOLLOWING:

(a) A DANGEROUS DRUG AS DEFINED IN SECTION 13-3401.

(b) PRECURSOR CHEMICALS THAT ARE USED IN THE MANUFACTURING OF METHAMPHETAMINE IN VIOLATION OF SECTION 13-3404.01.

(c) A DEADLY WEAPON OR A DANGEROUS INSTRUMENT, AS DEFINED IN SECTION 13-105.

(d) PROPERTY THAT IS USED FOR THE PURPOSE OF COMMITTING AN ACT OF TERRORISM AS PRESCRIBED IN SECTION 13-2308.01.

2. A CLASS 4 FELONY IF THE PERSON EITHER:

(a) IS CONVICTED OF A SECOND OR SUBSEQUENT VIOLATION OF THIS SECTION.

(b) WITHIN SIXTY MONTHS BEFORE THE VIOLATION, HAS BEEN REMOVED FROM THE UNITED STATES PURSUANT TO 8 UNITED STATES CODE SECTION 1229a OR HAS ACCEPTED A VOLUNTARY REMOVAL FROM THE UNITED STATES PURSUANT TO 8 UNITED STATES CODE SECTION 1229c.

Brian said...

If I was wrong, FLS, then I'll be the first to admit it. But Flexo links to the AZ law in question, and it appears that you were correct that the law originally had that language you cited, but it's been amended to remove it.

I noticed also the amended portion of 13-2928 that "race, color, or national origin" may not be considered in enforcing the law. I seem to recall in the news hearing that the law had been amended by the AZ legislature to add that language.

former law student said...

Brian, that was the Senate Bill 1070 that was signed into law and became Chapter 113 for 2010. But I see that HB 2162 caught up to it and amended it a few days later.

http://www.azsos.gov/public_services/Chapter_Laws/

Flexo said...

Try to keep up maroon.

Bob From Ohio said...

Hines v. Davidowitz does not necessarily control.

The Pennsylvania statute required a separate and distinct state registration and a state issued card.

As the SC noted, at the time, "No requirement that aliens carry a registration card to be exhibited to police or others is embodied in the law".

Current federal law
does in fact require carrying a federal card. The Arizona statute keys into the federal requirement and requires no state registration or state alien id.

In legal jargon, Hines v. Davidowitz can be "distinguished". That is not to say that it won't be relied on but lower federal courts could decline to follow it if they choose.

The Supreme Court, but not lower courts, could also just over-rule it. Not likely but possible. It may depend on what Tony Kennedy thinks.

c3 said...

Then why does the Arizona law not simply authorize Arizona Law Enforcement agencies to enforce Federal immigration law?

I'll have to read it again but I know the legislature was very careful to create a law that they felt would meet constitutional muster. And hence (as previously stated) they can "deliver" someone to federal authorities who they have picked up for a state violation who has violated the fed statutes.

Now as I've said I don't support the law but as an Arizonan I'm getting pretty tired of the "racist" accusation. The duly elected legislature passed a law that it believes is constitutional, that a majority of Arizonans support and which (son of a gun) a majority of Americans support so GIVE IT A REST.

And furthermore, am I safe in assuming that if suddenly the feds suddenly decided to fully enforce the law and flood the state of Arizona with ICE officers would there be the same hue and cry.

(Oh and PS because it was brought up in another comment, little evidence to support the claim of an increase in violence in Arizona, related to crime or otherwise.)

(Further PS. My wife just cancelled her educational conference to San Diego after the SD City Council decided to boycott AZ. SD survives on AZ tourists in the summer. STUPID MOVE)

Hagar said...

I wonder about all these municipalities decreeing boycotts against states (and soon other municipalities too?), etc. Aren't they interfering with interstate commerce? Refusing to respect properly enacted laws of other states than their own? And the states they are located in are complicit in this?

former law student said...

Bob from OH: Davidowitz is part of a flotilla of cases showing Congress has preempted the field of immigration law. That part of the bill, with its misdemeanor penalty, will not pass Constitutional muster. But I see the legislature put in a savings clause.

Aren't [boycotting cities and states] interfering with interstate commerce?

Under what has been known as the "market participant" exception to the Dormant Commerce Clause, municipalities can spend their own money however they want. If they don't want to spend any in Arizona, they're not obligated to do so.

Lyle said...

What nonsense law does that ACLU lawyer recognize? These people are insane. The law is all just make believe.

Hagar said...

Spending your money wherever you want to is a lot different from organizing a boycott!