The Arizona Immigration Case: Three Key Questions

Under current doctrine, the SB 1070 case came out the right way.  I hate Section 2(B) – the infamous “papers, please” provision – but it isn’t unconstitutional for state officials to enforce federal law (even federal civil law, which includes immigration) and then turn offenders over to federal officials.  Generally speaking, it isn’t an issue, especially in immigration contexts.  Why should state and local law enforcement worry about chasing after federal civil offenders such as, say, tax evaders?  And police departments are morons if they want to risk local cooperation by inquiring about immigration status.  But this is Arizona.

The touchstone is that this case was a “facial” challenge, which under current doctrine means that in order to succeed, plaintiffs have to show essentially no circumstances under which the application of the law would be constitutional.  I think that that standard for facial challenges is terrible, but this group of yahoos isn’t going to revisit it any time soon.

Thus, the new phase is developing an “as-applied” challenge to the law.  That means answering three key questions:

1)  What will the feds do when Arizona cops start presenting them with hundreds of Latinos to incarcerate?  This is an important place to pin down the administration: if and when Arizona police start giving you just immigration suspects, tell them to release them.

2)  What kind of monitoring, both DOJ and private, needs to be done in order to present the as-applied challenge to SB 1070?

3)  What precisely will plaintiffs need to show to enjoin application of Section 2B?  Arizona has something like one-third Latino population.  I would guess that virtually all of the white and Indian population are citizens. (I don’t about Asians.). So if all the people turned over to the feds are Latino, is that good enough?  What if it’s two-thirds?  Will Arizona police need to write specific guidelines?  If they don’t, is that good enough?

This battle is just beginning.

Comments

  1. Brett Bellmore says

    “So if all the people turned over to the feds are Latino, is that good enough? What if it’s two-thirds?”

    I shouldn’t think it would be a problem if almost all of the people turned over are Latino, if they can demonstrate that almost all of the illegal immigrants are Latino. I mean, what do you want? Deliberate false arrests of non-Latinos in order to make the statistics represent the citizen population instead of the offender population? Some of the lower courts might be crazy enough to insist on something like that, but I get the distinct impression the majority on the Supreme court have gotten tired of that particular brand of madness.

  2. BroD says

    My advice to Gov. Brewer would be to salvage the law (and face) by quietly making clear to relevant subordinates that nobody should attempt to implement it.

  3. Brett Bellmore says

    Yes, given that the law was driven in the first place by public anger over deliberate undereforcement of immgration laws, that’s probably the best way to throw gasoline on the fire: Deliberately don’t enforce state laws, either, even after they’ve been found constitutional.

    As a general rule, laws should be either enforced, or taken off the books. Unenforced laws on the books are just too handy a tool for a prosecutor who wants to engage in harrasment.

    • GlibRaker says

      Yes, given that the law was driven in the first place by public anger over deliberate undereforcement of immgration laws…

      Another glib convenient half truth tossed off with the gay insouciance of a learned Archie Bunker.

      The law was driven in the first place by public anger over a lack of jobs and money which was caused by a near Depression which was caused by Wall Street packaging toxic assets rated triple A and selling them to the world on one hand, and hedging against them for profit on the other.

      As is usually when there is not enough to go around, the human beings involved took out their anger on the nearest and easiest racial targets.

      Axiom #1 for the reschooling of the neosimian glibertarians amongst us: The truth is never as glib as we would like it to be.

    • Byomtov says

      I thought it was driven by all those headless bodies (or was it just the heads?) that kept popping up in the AZ desert. To paraphrase a famous headline, “Headless body found in brainless state.”

      • Brett Bellmore says

        Yup, just make fun of one of the worst violent crime problems in the nation, the Mexican civil war intruding into the US. Hey, it’s funny, it’s nobody important getting killed, or being told by the government to stay off their own land because the government isn’t in a mood to defend the border. Just those silly Arizonians.

        I don’t think this is funny at all: The President has just responded to not entirely winning a lawsuit against a state, by telling that state he’s ceasing enforcement of a federal law state-wide. Forget this “you mess with the” BS, is this the sort of thing somebody who’s sworn an oath to see the law faithfully executed is supposed to be doing? Announcing state-wide moratoriums on enforcement of specific laws?

        What’s next, he narrowly wins in November, but doesn’t carry Florida, so he announces that the US military will no longer defend against invasions of that state?

        The only justification for even HAVING a federal government is so that it can solve certain problems where the states need to work together. If it’s not going to do that, it’s just an empire. And, again, Democrats are enjoying seeing Obama act like a dictator.

  4. Brett Bellmore says

    So, what do you think of the President’s executive “neener, neener!” order? That reports of illegal aliens from Arizona, and only Arizona, will now be hung up on? Basicly saying to the Court, “You might have upheld Arizona’s right to report illegals, but we don’t have to listen to the reports!”

    • chuchundra says

      I think it boils down to, “you mess with the bull, you get the horns.”

      DHS and DOJ have told Arizona officials time and again not to violate the rigbts of their brown skinned residents Anderman they’ve chosen to ignore it. So, this is what happens.

  5. Dave Francis says

    ILLEGAL ALIENS ARE NOT JUST FROM MEXICO, BUT ARRIVE HERE ON INTERNATIONAL FLIGHTS POSING AS TOURISTS.

    WASHINGTON — The Supreme Court released their opinion Yesterday that the federal government has the sole power to enforce the laws against illegal immigration, striking down three key provisions of Arizona’s first-in-the nation crackdown on illegal aliens squatting there and stealing our children’s education, American family health care and a cornucopia of welfare payments and programs. ONLY THE TEA PARTY CAN SAVE US NOW. THE TEA PARTY IS EVERY WALK OF LIFE, EVERY RACE, & EVERY RELIGION THAT HAVE HAD IT WITH THE TWO POLITICAL PARTIES. ID YOU DON’T WANT A SOCIALIST FUTURE, EVERY AMERICAN WHO HAS NEVER VOTED—SHOULD VOTE. NON-CITIZENS WILL VOTE TO SAVE OBAMA.

    Frustrated, angry with the Republicans and Democrats, then join the TEA PARTY organization. The growing numbers of millions of Americans are joining this party, spreading its wings away from the Republican enclave. Both political parties are corrupt and all incumbents need to be replaced, which is happening now. We can no longer afford to support the rest of the world, or the 20 million plus illegal aliens living in the United States that has brought their poverty with them. HUNDREDS OF BILLIONS OF DOLLARS ARE BEING SIPHONED FROM STATES AND THE TAXPAYERS POCKETS.

    We must back the Mitt Romney, even though he has his issues but prolong the replacement of every single Democrat, Liberal or Republican that is tearing America apart. IT is the Time of the PEOPLE’S PARTY. It is the time for the TEA PARTY, which is complimented by man/women; African, White, Hispanic, Asian and other racial Americans. The TEA PARTY is a wealth of different religions, faiths, gay and every other walk of life. Remember a large Majority who votes for President Obama for a second term, non citizens or American citizens are the ones who spend their day watching TV, selling drugs, living off the rest of us like parasites.

    The exception is the sick and true non-functioning human beings, so spend a minute and understand the growing divide in America. If you are frustrated with feeding the rest of the world, unable to get a decent job, the controversial immigration debate that is a theft of your taxes, the rules and regulations forced on Americans that halt large energy companies from extracting oil, natural gas and coal; that we could not only lower the costs of our transport, but sell residual amounts to friendly foreign countries.

    By replacing President Obama administration, plus replacing the Republicans and Democrats in the Senate and the Ho House of Representative and seating in ‘THE PEOPLE’S Constitutional TEA PARTY, we can win America back Millions more will be encouraged to come here, bringing their poverty, criminals and children stealing their futures. WE ARE LOSING OUR COUNTRY, OUR LIBERTIES AND OUR U.S. CONSTITUTIONAL RIGHTS.

    In Arizona that was the epicenter of the Illegal Immigration invaders, where the courts have declared that every taxpayer through unfunded mandates must pay for public services for every illegal alien who slips by the border guards. If you are a taxpayer then you should investigate the websites of NumbersUSA, Judicial Watch, Federation of Immigration Reform (FAIR) Center for Immigration studies (CIS), THE DARK SIDE OF ILLEGAL IMMIGRATION (Crimes committed by illegal aliens.
    DON’T STICK YOUR HEAD IN THE SAND. JOIN YOUR LOCAL TEA PARTY. FOR AS WE SEE ARIZONA, ALABAMA, GEORGIA, SOUTH CAROLINA OR ANY OTHER STATE BEING HUNTED DOWN, THREATENED AND INTIMIDATED BY A JUSTICE DEPARTMENT AND MARXISTS, SOCIALISTS IN THE OBAMA ADMINISTRATION.

    Don’t forget that illegal aliens and their legal families want to keep Obama in power, so they can keep collecting taxpayer dollars, the $4.2 billion annually that goes to the children of illegal aliens, not even living in the United States. The $2 Billion dollars a month sucked dry in the Sanctuary city of Los Angeles, going to illegal nationals.

    IF YOU HAVE NEVER VOTED BEFORE, REGISTER AND BE READY. REMEMBER, IF YOU THINK ILLEGAL ALIENS OR OTHER NON CITIZENS DO NOT VOTE. THEN THE LAUGH WILL BE ON US ALL, IN NOVEMBER. THE LIBERALS ARE SAYING THE REPUBLICANS ARE TRYING TO ‘SUPPRESS MINORITY VOTING’ BUT THEY ARE NOT SAYING IS THAT ILLEGAL ALIENS ARE VOTING IN EVERY ELECTION, WITH NO TRUE OFFICIAL RESTRICTIONS.

    We need Sheriff Joe Arpio, for a TEA PARTY leader candidate as a Senator or House Representative. We need strong, aggressive people in Congress, especially following Constitutional law.

    CNN Television and the rest of the Liberal channels always show the huge reinforced fences that run along the most populated areas of the Southern border. In truth the rest of hundreds of miles of the border region is nothing but a few strands of rusty barbed wire, which an elephant could slide through. THE LIBERAL PRESS ARE MISLEADING THE PUBLIC ON THE REAL FENCE ON HOW MANY MILES ARE COVERED.

    OUR COUNTRY IS BEING OVERPOPULATED IN THE NAME OF VOTES AND GREED. WE SHOULDN’T FORGET THAT OBAMA’S GOONS OUTSOURCED WEAPONS TO NARCOTERRORISTS TO MEXICO KILLING U.S BORDER AGENT & MEXICAN CITIZENS.

    It is of the paramount importance that we must be imposed at once, so no more foreign invaders are encouraged to break the immigration ‘Rule of Law’. ‘THE LEGAL WORKFORCE ACT’ (E-VERIFY) must be passed and advanced, so illegal aliens can no longer steal jobs from the millions of Americans unemployed. The ‘BIRTHRIGHT CITIZENSHIP ACT (H.R.140) must be compulsory so babies smuggled into America, so that parents cannot take benefit from welfare, once the child become an immediate citizen. Half a million pregnant women enter the United States looking for handouts annually, for their children.

    Let your Senator or Congressman/Women know how you will vote, by giving your name to the politician’s aides and that you want them to sponsor E-Verify and the Birthright Citizenship bills. Citizen voters should phone Congress at the central Switchboard at 202-224-3121. FORCE YOUR CONGRESSMAN/WOMAN TO fulfill their obligation to the oath of office and stop pandering to the businesses that use cheap labor. Use the power of your VOTE to demand they sponsor these to policies or we are destined to become like Europe, overwhelmed by the poverty of other countries.

    NO COPYRIGHT. DELIVER TO YOUR FRIENDS & FAMILY