"Why can't Arizona be as inhospitable as they wish to people who have entered or remained in the United States?" U.S. District Judge Susan Bolton asked in a pointed exchange with Deputy Solicitor General Edwin S. Kneedler....Kneedler's response was that Arizona acted "in, frankly, an unprecedented and dramatic way."
"It is not for one of our states to be inhospitable in the way this statute does."I'm not looking at the whole transcript, but I'm puzzling over this idea of preemption that depends on the degree of drama.
Kneedler also cited "very concrete harms, very substantial foreign policy concerns," which gave Arizona's lawyer, John J. Bouma, the opportunity to zing: "Foreign outrage doesn't make the law preempted."
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72 comments:
"but I'm puzzling over this idea of preemption that depends on the degree of drama."
They're reaching. It's all they got.
The Lawless one's men in action all dressed up for a Legal Drama. It reminds me that Obama dressed up in a Harvard Law Review Editor's clothes and a Chicago Law Professor's clothes. For Obama using the law Lawlessly is always a morality play drama for the "Little People". That was and is BP's attitude. They believe reality is irrelevant, so they go about restricting acess to all reporters that could report another story line than the hoax BP wants told.
I think the Gov't is going to lose this one. Their arguments sound like nothing more than personal ire over an inter-agency turf battle.
The government's argument boils down to they think that it is not just federal statute that prempts state law but federal exectutive enforcment and interpretation. That seems to me to be a big stretch. All Arizona is doing is enforcing federal law as written. It is not like they made a law that says that attempted to change federal law; for example saying that only green cards from certain counties will be recognized in the state.
If the federal government is so concerned about the effects of Arizona enfoceing federal law, then change the law. Their problem is not the law. They want to be free to not enforce the law without having the states step in and do it for them. Basically, they think the state of Arizona is preempted from doing anything about the exectutive ignoring the law.
As usual, the Left's last best hope was that they'd get some ideologically twisted Judge to use the bench to undermine the Constitution. Looks like they're out of luck with this woman.
Go 'Zona!
I'm surprised actually. This may all be theater to start with, though, and the judge ultimately side with the federal government.
IANAL, so take it for what it's worth. I figured the Feds may get a narrow victory by getting the fine & jail time struck down, but the rest of the law remains in effect, allowing LEO's of Arizona able to arrest and turn over illegals to the Feds. If the feds simply cut them loose, then that's not the state's fault.
You gotta do the work before you go to trial don't you? Obama has never had to do the work. He has just shown up - it's the story of his life.
Laws should be more pretty
Laws should be more witty
Laws should be more...
What's the word?
Gay?
Exactly!
If the federal government is so concerned about the effects of Arizona enfoceing federal law, then change the law.
Actually I have a more radical idea.
Ready?
ENFORCE THE IMMIGRATION LAWS CURRENTLY ON THE BOOKS.
@AJ:
You gotta do the work before you go to trial don't you? Obama has never had to do the work. He has just shown up - it's the story of his life.
Obviously, the career lawyers at DOJ (and Eric Holder) would be the ones to handle this. Do you, or anyone, know the precedents that the feds are using here? What's that one from Pennsylvannia where the state wanted to issue ID cards to aliens?
...and...we're OFF...
There are probably a lot of angles to this that I am not thinking of or even aware of - but - if the feds don't want immigration law enforced...
why don't they change federal law to what they *do* want enforced?
What am I missing?
If that's all they got the suit is weaker than I thought.
Brian:
I am not a lawyer and am not familiar with a PA initiative re ID for illegal immigrants.
I do know that it would be DOJ staff not Obama doing the work. And he seems to have appointed many clones of himself meaning people who skated thru life without putting in the time.
"if the feds don't want immigration law enforced...
why don't they change federal law to what they *do* want enforced?"
Because they'd get push back. A lot of push back. They'd rather just quietly do what they want to do (or, rather, not do what they do not want to do.)
Ah yes, it's Hines v. Davidowitz.
Justice Hugo Black overturned the Penn. law requiring aliens to obtain state ID cards, and pay a fee. Per wikipedia, his opinion noted the supremacy of federal jurisdiction in matters of foreign sovereignties, treaties, etc. This was a pre-emption issue in regards to the federal Alien Registration Act.
Judge Susan Bolton has already discounted the pre-emption argument thus far. In fact, the AZ law is in harmony with the objective of federal immigration law. The fact that the executive branch doesn't want to enforce a federal law doesn't seem to be an issue with Hines, because Hines deals with pre-emption of an act of congress, not an executive branch decision to make enforcement a low priority.
why don't they change federal law to what they *do* want enforced?
Because it would undermine that old tradition called sovereignty.
Its really obsolete you know.
[Susan] Bolton, a Democratic appointee, also questioned a core part of the Justice Department's argument that she should declare the law unconstitutional: that it is "preempted" by federal law because immigration enforcement is an exclusive federal prerogative.
Looks like Arizona will win.
Because they'd get push back. A lot of push back. They'd rather just quietly do what they want to do (or, rather, not do what they do not want to do.)
and
Because it would undermine that old tradition called sovereignty.
Its really obsolete you know.
Do you think that's the whole reasonn for not changing immigration law? If true, they aren't ever going to be able to quietly not do what they don't want done, are they :-)
If the whole reasoning for this is because they don't want anyone to know where they stand on immigration and they don't intend to enforce existing law - or as Obama told John Kyl:
"if we secure the border - you guys won't help us get comprehensive immigration reform"
if their reasoning is that they don't intend to enforce existing law - until they get a law to their liking...
this lawsuit is only going to exacerbate the issue, it seems to me...and create much, much more interest.
What is the point of electing Obama and Democrats if they won't deliver left-wing utopia like amnesty for illegals/
"Do you think that's the whole reasonn for not changing immigration law? If true, they aren't ever going to be able to quietly not do what they don't want done, are they :-)"
Battle plans do not survive contact with the enemy.
"this lawsuit is only going to exacerbate the issue, it seems to me...and create much, much more interest."
The lawsuit may have been Plan B. And it has the advantage of looking good to the left and, probably in their mind, Hispanic voters. (Whether or not the later is true, I don't know.)
Lots of foreign countries are outraged by our use of capital punishment, but that hasn't slowed us down.
The essense of this case is that libtards want illegals coming in and out of our country freely and unimpeded. They don't care about the impact on the poor and blue collar citizens whose jobs are being taken and government benefits being used up because the Dems might get a few more votes.
THe article had a clear Obama slant. In several places it discussed questioning folks and deporting them without mentioning that the Police can only do that to suspects under arrest or in the context of a traffic stop.
The last paragraph was the nut. The lady on the street pre-wrote the Judge's decision with this pithy one liner:
"I am amazed that the Justice Department would have the nerve to sue us for trying to get laws that are already on the books enforced," she said.
Sixty Grit nailed it. This is about the left's desire to flood the country with more illegals. It gives them leverage, they hope it gives them votes, and they hope it will give more people to play the ponzi scheme that has become of social security.
Drama precludes problem solving. And that is part of the intent as well.
Trey
Trey - I'm for more people to help us with the ponzi scheme (assuming we can't get rid of it). I just want them to be legal.
It's a weird argument to say that a secret hidden desire to not follow their own federal law preempts state law. Federal law obviously preempts state law. But the secret desire to give illegals a free pass, that's not a law at all. How can that preempt anything?
If the Obama administration actually passes amnesty, then that's a law that would preempt Arizona. This is an attempt to give amnesty secretly. Wink wink, nudge nudge. So the question is whether Obama's secret determination to not follow federal law trumps an actual state law voted on by a democratic process.
Battle plans do not survive contact with the enemy.
:-)
The lawsuit may have been Plan B. And it has the advantage of looking good to the left and, probably in their mind, Hispanic voters. (Whether or not the later is true, I don't know.)
I don't know either :-)
I know in my case, I am not impressed with politicians who fight battles and lose. What I mean is - I used to be satisfied with rhetoric - "I have these beautiful ideals and dreams etc etc" - but that no longer satisfies for me :-)
I don't think, if I was Hispanic, that having a rhetorical battle that ending in a real world loss - would inspire me to support the losers. If they can't make a good enough case to change minds - they aren't good advocates - it seems to me.
I am sympathetic with the plight of Mexicans - the violence, the corruption, the the poverty etc. I think an honest case can be for a solution that a substantial majority of Americans would support. But I am suprised that it is not being made.
Hence my questions :-)
If the feds don't want to enforce the existing law - why not change it to something they *do* want to enforece?
Saint Croix - that's crazy talk. Ritmo never said he's in favor of amnesty. But it is a god-given fact Republicans are racists.
PS :-)
Why should Arizona and other border states have to suffer so much violence and crime simply because the feds don't want to enforce the law?
I think Arizona has a great case to make there...and, really, a responsibiltiy to their citizens.
How can it be considered humane to knowingly allow and condone the suffering of Arizonans?
I am sympathetic with the plight of Mexicans - the violence, the corruption, the the poverty etc. I think an honest case can be for a solution that a substantial majority of Americans would support. But I am suprised that it is not being made.
I say we annex Mexica and say "the hell with it." Forget about Iraq and Ahghanastan, lets conquer Mexico.
Very strange legal argument: "It is not for one of our states to be inhospitable in the way this statute does." But federal immigration law is the source of any such "inhospitality," since it's hardly an exercise in putting out the welcome mat to say to someone that it's a felony for them to remain in the US (which, putting aside the territories, necessarily means that it's a felony to remain in the state where that person is found). Arizona is not challenging the federal power to decide who is and who isn't here illegally; it accepts the federal power to fix the parameters of our "hospitality," if that's the relevant category.
At bottom, his argument is that there is a policy dispute between Team Obama and Arizona about enforcement. Obama wants full discretion to enforce, or not, federal immigration law. At least with respect to criminal prosecutions and deportation proceedings, of course, Obama's DOJ already has full discretion. The "substantial foreign policy concerns" invoked by Kneedler seems to contend that Obama also wants the discretion to assure foreign leaders that no one will enforce US immigration law in a way that those foreigners might not like.
I think that argument would have force if US immigration law made all aspects of its enforcement expressly subject to the Executive's discretion. That's another way of saying that Kneedler's argument assumes an express Congressional direction preempting any state from taking action involving a person's immigration status. But there is no such provision of law, and the argument just collapses.
In all events, Arizons is not "enforcing" US immigration law so much as (a) notifying the federal authorities of a possible violation of federal law, which those federal authorities may (or may not) act on; and (b) enforcing whatever provisions of state law (there may be none, I don't know) may be premised on a showing of a violation of federal law.
Along the way, Kneedler is almost setting up a 'political question' defense for Arizona. The 'political question' doctrine is usually invoked by the Gov't to fend off suits attacking particular federal policies, on the ground that the issue is properly within the power of either the Executive or the Legislative branch to decide. Here, the policy issues raised by Kneedler's argument can't be answered by a court. What's needed instead is for Congress to change existing law. Under the current statutes, the policy is pretty clear -- indeed, it's a tautology: it's illegal to be in the US illegally, and illegality has its consequences. Frequently one of them is a lack of "hospitality" from law enforcement officials.
"I'm not looking at the whole transcript, but I'm puzzling over this idea of preemption that depends on the degree of drama."
'... and when both the facts *and* the law are against you, pound on the table!'
I have a different theory of motive: this is a long shot by the feds to let them preempt any state law they choose. It is the natural progression of the expansion of federal power over the last 80 years.
So 2 years ago, we had Medellin v. Texas, the complaint being that Texas didn't comply with the 1963 Vienna Convention that requires:
foreign nationals who are arrested or detained be given notice "without delay" of their right to have their embassy or consulate notified of that arrest.
Now, I recognize the SCOTUS decision that the International Convention is not enforceable domestic law. But still, exactly how could the 1963 Vienna Convention actually be complied with unless the police checked an arrested person's immigration status?
"illegality has its consequences. Frequently one of them is a lack of "hospitality" from law enforcement officials."
:-)
What's next? Insisting police capture bank robbers without the "drama"?
Something besides the merits of the legal argument is puzzling here. Kneedler has been in the Solicitor General's office since 1979 -- that may well be a record. His reputation is completely non-partisan (without which he could not have survived in such an exclusive office under presidents from Carter to Obama). He's a veteran of 100+ arguments in the SCOTUS, and is a VERY able guy. He's also the Deputy Solicitor General (Kagan's number 2) and is effectively now the Acting Solicitor General, a position he has held in the past.
The Solicitor General's office takes great prides in its reputation. When the Solicitor concludes that the gov't has erred, it will concede error in the SCOTUS. Like any lawyer, the Solicitor is an advocate, but they try hard never to push a legal argument beyond the bounds of a reasonable extension of current law.
Yet the arguments being made in this case against the AZ statute seem extraordinarily weak. The whole thing is very un-Solicitor like.
The legal debate inside DOJ before the federal suit was filed must have been intense. I'm looking forward to the leaks detailing the inside story when the case eventually blows up in the Gov't's face, as it seems likely to do.
Note, also, the irony in the Obama Admin's position. They are arguing essentially for disretionary power even to stop state/local law enforcement from gathering information about possible violations of federal offenses that, for their own reasons, they don't want even to know about. (The argument about the administrative burden if AZ provices such notice, which shows up in interviews of ICE officials but perhaps not in the Gov't's legal position, is especially bizarre.)
To borrow Glenn Reynolds' line, they said that if I voted for McCain, we'd end up with an extension of a lawless Imperial Prsidency. Well ....
Mexico is a war zone that will spill into our border states.
I say we annex Mexica and say "the hell with it." Forget about Iraq and Ahghanastan, lets conquer Mexico.
When I was an armor officer in Europe in the 70's, we used to look across the German border and see thoe masses of tanks and joke:
hehe, why can't we go fight Mexico instead. The weather is warmer, the beer is OK, the young women are cute, the language isn't that tough (some of us speak it already :), you can drive there, and besides, how many T-72's do the Mexicans have anyway :)
"I say we annex Mexica and say "the hell with it.""
I say we give them California and say "the hell with it."
as several other commenters have said in a more complicated fashion:
This turkey of an argument about preemption is gonna fail rapidly. If it were a regulatory matter, like clean water implementation rules, it would be one thing to say Federal rules trump States when there is a conflict.
But in this case, the other branch (e.g. Congress) is on record with the Federal law AND with laws and funding requiring the Feds to assist States in doing exactly what Arizona is proposing. e.g. using state resources to extend and enhance the enforcement of the immigration statutes.
absent a clear conflict in the 2 sets of laws, the POTUS on one side can't trump Congress and a sovereign state on the other.
I say we give them California and say "the hell with it."
Ah, we gave Cali as collateral to China. As well as the entire Pacific Rim. Sorry.
"Ah, we gave Cali as collateral to China."
That's the beauty of it. We don't even own it.
Federal pre-emption means that the federal government gets first crack at deciding what the law will be on certain subjects. Among those subjects are things like who shall be permitted to cross the border and who shall be a citizen. When the feds pass a law on these subjects, the law is binding even on states that disagree.
It does not follow that, when the feds decide unofficially to refuse to enforce a federal law, the law ceases to exist and states are not permitted to take any further notice of it.
If the feds actually want to get rid of federal immigration law, they're going to have to pull their socks up and repeal it.
"Kneedler also cited "very concrete harms, very substantial foreign policy concerns," which gave Arizona's lawyer, John J. Bouma, the opportunity to zing: "Foreign outrage doesn't make the law preempted."
---------------
Yes, that was quite pithy. One thing that really stuck in my craw was Black Messiah arm-in-arm with Presidente Calderone of Mexico denouncing Arizona's attempt to check status of Calderone's illegal invaders.
BUt let's be honest, immigration was slowly taken over by a Cabal of Open Border Advocates in the early 60s, a Cabal that combines Republican Corporatists, progressive Jews who argue America is morally obligated to accept all wretched refuse from every teeming shore or at least steer them to the Jewish-dominated immigration law industry. A Cabal populated by Agribiz, by the Catholic Church, La Raza activists, by stupid black leaders that see replacement workers for urban and rural blacks as allies in a future Black-Brown coalition against the white oppressor race. By H.W. Bush's New World Order Elites and by Clintons Globalists.
It started rolling in 1965, with the Immigration Reform Act, drafted by Jewish and WASP liberals in NYC, San Fran, and Massachusetts..and Agribiz.
Nixon and Reagan made attempts to get it made rational and fair, protect against worker exploitation as well as legal applicants being line-jumped by illegal invaders coming in. BUt other than those two, full steam ahead.
You can't blame Obama. He's just one in a chain of enablers.
His predecessor, the failed President Dubya Bush - was famously running around right after 9/11 talking about Evildoers and Heroes in Uniform and the need to invade other nations to "let the heroes keep America safe from foreign groups attacking us here" - while simultaneously just smiling as he saw daily TV footage of hundreds of aliens running across the Borders.
Foreigners in a cave 8,000 miles away were an terrible menace easily justifying 100s of billions "lest they come here and attack our Freedom" the American Churchill said...but the 4 million that he let pour over the Borders and plant anchor babies- or legally let in as "noble Somali, Palestinian, Afghan" refugees - were "just good hard-working people doing the jobs no American wants". So much for our American Churchill.
Dems sabotaged Smith-Mazzoli immigration reform with eager Republican collaboration for their business donor's sake - and co-opted Presidents winked.
Wow, Cedarford...just wow.
Please tell us. Does the beer you're currently drinking have a dead squirrel or chipmunk wrapped around it?
You guys realize - the way you cozy up to racist Garage & racebaiter HDHouse, but not Cedarford, looks like a double standard to me.
What gives? I'm really curious why your'e willing to share a drink with Libtards but not C4.
"“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”
You guys realize - the way you cozy up to racist Garage & racebaiter HDHouse, but not Cedarford, looks like a double standard to me.
What gives? I'm really curious why your'e willing to share a drink with Libtards but not C4.
I don't consider myself to be very bright at the best of times, Fen, so don't be surprised when I say you lost me there.
WV - "undas" = urban slang for underwear, usually worn under "drahwes"
@C4:
"..His predecessor, the failed President Dubya Bush - was famously running around right after 9/11 talking about Evildoers and Heroes in Uniform .."
Not to worry, our current commander in chief would never use words like 'evildoers' or 'heroes in uniform'.
Last night's NewsHour story" on this was good.
What was humorous was they picked a UMKC law prof who'd help create the bill and a professor from the Phoenix School of Law (not ASU. My impressions prior to this piece were that Phoenix Law is not one of our countrie's premier law schools. Those impressions have been affirmed)
I think they picked the guy from Phoenix Law because he was hispanic. He continually emphasized "pre-emption". When the guy from UMKC rebutted in detail the issues of pre-emption with the law the only thing the Phoenix Law did was basically reiterate "pre-emption".
Even Ray Suarez seem to sense the weakness of the guest when at the end he had to paraphrase his response by essentially saying
so you're concerned about pre-emption
My impression at this point is that some parts of the law won't stand and others will
(Again I will disclaim, I'm not a big fan of SB 1070)
I don't consider myself to be very bright at the best of times, Fen, so don't be surprised when I say you lost me there
I'm confused why so many people here dont extend the same courtesy to Cedarford that they do to HDHouse and Garage. They seem to be willing to overlook HDHouse's race-baiting and Garage's racism, but percieved anti-semitism from Cedarford gets him ostracized.
Buish "was famously running around right after 9/11 talking about Evildoers and Heroes in Uniform"
Which is exactly what America needed to hear that day.
I'm confused why so many people here dont extend the same courtesy to Cedarford that they do to HDHouse and Garage. They seem to be willing to overlook HDHouse's race-baiting and Garage's racism, but percieved anti-semitism from Cedarford gets him ostracized.
I still don't follow you. GM and HD get loads of pushback on their posts, mostly because they're wrong, but also because they tend to be twerps about being wrong.
Why should Arizona and other border states have to suffer so much violence and crime simply because the feds don't want to enforce the law?
Crime throughout the state, including the border counties has GONE down in the past several years.
Here's a broad critique of all of those involved in the debate from our local paper (and its not a "leftist rag")
Could Obama be impeached for failing to uphold the law when he took an oath that he would?
Could Obama be impeached for failing to uphold the law when he took an oath that he would?
It could be proven beyond any doubt that it was, in fact, then-community organizer/assc professor Obama in the R Kelly video and he still wouldn't be impeached. Simply judging by the Sherrod case earlier this week, there is no way this country would ever impeach the first half-black president.
I dont think so Kirby.
doesn't "rise to the level" blah blah
and would set a bad precendent. I can think of a dozen examples Libtards and their corrupt congress-critters would have distorted to impeach Bush.
You lost me too, Fen.
Crime throughout the state, including the border counties has GONE down in the past several years.
Sorry, I've seen that stat and its been tweaked harder than a CRU database.
I still don't follow you. GM and HD get loads of pushback on their posts, mostly because they're wrong, but also because they tend to be twerps about being wrong.
Right. But after the pushback, some people extend the courteous "we'll drink together after we argue poltics" mentality. Not so with C4.
I think people do tend to talk to garage and HD more than Cedarford. The length of C4s posts are an obstacle.
But after the pushback, some people extend the courteous "we'll drink together after we argue poltics" mentality. Not so with C4.
If there's ever an Altcon (probably in Madison, I'm guessing), I would have no problem sitting down and drinking with anyone on this board...provided it's a very public place with lots of potential eyewitnesses.
Let's remember that people's in-person behavior can be 100% different than their online behavior. I'm willing to cut anyone that slack...once.
(you shouldn't hang me on a hook, Johnny. My mother hung me on a hook once. Once.)
Crime throughout the state, including the border counties has GONE down in the past several years.
The article you posted - which is pushing for "comprehensive" reform doesn't back up your statement. But it odes back up mine :-)
Here's a quote from your article:
There is also agreement that Arizona suffers disproportionately because of federal border policies, as was seen Friday when a Pinal County sheriff's deputy was ambushed and shot by suspected drug smugglers.
And that is one of my points. Why should Arizonans and other border state citizens suffer because the federal government chooses not to enforce their own laws?
And even if crime has gone down - that doesn't mean that Arizonans should simply accept a certain amount of murder, crime, lawlessness and misery because the federal government chooses not to enforce its own laws. That doesn't make sense to me.
Crime throughout the state, including the border counties has GONE down in the past several years.
Even if this is true of crime in general, it's still possible that crime from illegal immigrants is a large problem for Arizona and needs to be dealt with.
And even the "honest, hardworking" illegals have negative effects beyond street crime and violence. Overcrowded schols and hospitals, depressed wages for native workers, etc. - these things all have negative effects on American citizens. Why should Arizona have to put up with any of it?
Even if this is true of crime in general, it's still possible that crime from illegal immigrants is a large problem for Arizona and needs to be dealt with.
And even the "honest, hardworking" illegals have negative effects beyond street crime and violence. Overcrowded schols and hospitals, depressed wages for native workers, etc. - these things all have negative effects on American citizens. Why should Arizona have to put up with any of it?
This is the crux of the matter and one that social justice types don't want to talk about. It's not just this administration to blame for it. The last four have been woefully negligent.
It's not just this administration to blame for it. The last four have been woefully negligent.
You'd think the Dems would want to do something about it finally and thus get the credit. But not doing something about it without saying why in a candid way makes one question their motives and fosters a lack of trust.
I think that AZ should be able to sur the feds because their not enforcing the law is putting the lives and livelihood of our citizens at risk and essentially the federal government is not protecting the lives of our citizens adequately.
v3,
The important statistic is not whether crime in general has gone down. The question is whether crime committed by illegals in normal day to day living and in the process of sneaking in has gone down. I have read the stories of the ranch owner who was killed when the coyotes were using his ranch as a highway to bring their illegals in and that this is not a single case. That is enough to bring up the question of why is the federal govt NOT enforcing the law. Their primary goal is supposed to be to protect the lives and livelihood of the US citizens first and foremost before they have any other function at all and this administration is a huge fail on that one.
There is no such thing as birthright citizenship for the children of aliens in the 14th Amendment.
Ditto Fen @ 3:03.
I may have time to find the articles... may not ... but it was there. I read it also.
There was some fancy jiggering done.
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