Arizona takes controversial immigration law to Supreme Court

[steve2470]

Source: CNN

(CNN) -- Arizona Gov. Jan Brewer said Monday she is "confident" the U.S. Supreme Court will lift the injunction on the state's controversial immigration law, known as SB 1070.

Brewer has asked the justices to lift the court order that is blocking enforcement of parts of the law, which the Obama administration opposes.

"For decades, the federal government has neglected its constitutional duty to secure the border. It is because of that negligence that Arizona was forced to take action to protect its citizens via SB 1070," said Brewer.

"I'm confident that Arizona will emerge victorious from this legal fight," she added.

Read more: http://www.cnn.com/2011/US/05/09/arizona.immigration/?hpt=Sbin

[sinkingfeeling]

1. I'm sure she's right with the current Court makeup.

[BR_Parkway]

6. They'll probably be able to find a way to declare taxes unconstitutional

at least for those voting GOP

[damntexdem]

2. Oh, well, and her judgment has proved to be so good.

;-)

But with this SCOTUS, who knows?

[rurallib]

4. like everything else anymore the decision rests on Kennedy

heck of a democracy, ain't it?

[No Elephants]

18. Dunno. IMO, even Tony would have a hard time ruling in her favor on this one.

Constitution is pretty clear that things like immigration laws and foreign policy are not for states to mess with.

[Judi Lynn]

3. AZ gov. to take immigration fight to high court

May 9, 2011
AZ gov. to take immigration fight to high court

Ariz. Gov. Jan Brewer says she will ask Supreme Court to overturn ruling halting key parts of controversial immigration law

(AP) PHOENIX - Arizona Gov. Jan Brewer announced Monday she will ask the U.S. Supreme Court to overturn a ruling that put the most controversial parts of the state's immigration enforcement law on hold.

The planned appeal to the high court comes after Brewer lost an appeal April 11, when a three-judge panel of the 9th Circuit Court of Appeals refused to reverse a lower court's order that prevented key parts of the law from being enforced.

The panel said federal officials were likely to prove the law is unconstitutional and succeed in their argument that Congress has given the federal government sole authority to enforce immigration laws.

Brewer's lawyers argued the federal government hasn't effectively enforced immigration law at the border and in Arizona's interior and that the state's intent in passing the law was to assist federal authorities as Congress has encouraged.

More:
http://www.cbsnews.com/stories/2011/05/09/politics/main20061161.shtml

[aggiesal]

5. Under Obama, ...

Obama beefs up border security in 2011 budget
http://www.sfgate.com/cgi-bin/blogs/nov05election/detail?entry_id=56449

Also, why not go after the corporations that knowingly hire illegal alien
to drive down wages.

[Thumper79]

7. I don't think the Supreme Court will hear it.

It's already failed in one appeal's court (9th) and I think governor Sewer is going to find herself with egg on her face. This governor has made this state a hell-hole that attracts all the redneck, bigoted and prejudiced there are in the Southwest. Gov. Sewer has been a laughing stock and she's an embarrassment for AZ, just like the entire Legislature.

[Igel]

8. Agreed.

But let's not forget the humiliation value in taking it and then disposing of the law.

Government's most on the ball when it comes to defending the prerogatives of government.

[DissedByBush]

10. The 9th, that's the key

It's the most overturned appellate court in the country.

Probably more likely to be heard.

[aggiesal]

11. 9th is the most Liberal Federal Court ...

(I think it's based in San Francisco, or somewhere in the west)
and with a very Conservative Supreme Court, it's no
wonder that it's the most overturned appellate court in the country.

[DissedByBush]

26. It's very sad we think of our courts that way

They're supposed to be above such politics.

[primavera]

29. It is sad

But it's unquestionably the way it is. Political ideology is a far better predictor of court behavior than the merits of a case. Every fact pattern is different and there are a million ways for judges to distinguish between the facts being ruled upon and the applicable law. The end result is that the law plays a disconcertingly small role in a judge's rulings, because, ultimately, the judge is going to do whatever they want to do, regardless of what the law says.

[primavera]

12. It doesn't really raise any unsettled matters of law

The only argument SB1070's authors have to offer in support of it is that they've been careful to track and thus not surpass federal law. But that's a meaningless point: simply because the federal government is empowered to do something doesn't mean that states are automatically authorized to do the same thing. Arizona can try to follow federal guidelines as closely as they wish, but it's still never going to make it legal for them to print their own currency. Legally, SB1070 doesn't have a leg to stand on.

[happyslug]

14. The Courts has ruled in the past, that the failure of the Feds to pass laws, permit the states do so

This is mostly involving State Insolvency acts. The Court has upheld such acts whenever the Federal Government failed to pass a Bankruptcy act. Bankruptcy is a reserved power of the Federal Government, that states can NOT pass Bankruptcy acts. The problem was during periods when they was NO Federal Bankruptcy act (We have had an Bankruptcy act since 1897, but from 1787 when the Constitution was adopted to 1897, during most years there was NO Bankruptcy act on the books).

The Federal Court ruled in the late 1800s that while State Insolvency act would be unconstitutional if a Federal Bankruptcy Act was ever passed, in the absence of such a Federal Bankruptcy act the states could pass, and permit the state courts to enforce very similar Acts dealing with insolvent debtors. The States had the right to pass whatever acts the states deemed needed by the state unless such acts were expressly prohibited by the Constitution even if the acts would interfere with acts Congress COULD pass, but have not.

Those same line of cases can be used to justify Arizona position, if the US Supreme Court wants to take on this case. Now, the actual cases are no longer valid for Congress has kept a Bankruptcy Act on the books since the late 1890s, but the concept that the list of Powers of Congress is NOT exclusive to Congress can be toted by citing those cases.

The list of Powers of the Federal Government, Article I, Section 8 of the US Constitution:
Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


Article 1, Section 10 list what the States can NOT do, even if Congress does NOT step in and preform those powers:

Section. 10.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

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: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Notice many of the restrictions can be waived by Congress, but the restrictions in the First Paragraph can NOT be waived.

In the list of powers of Congress, Paragraph 4, list bankruptcy as an exclusive Federal function, but by its terms do NOT prevent the States from passing similar laws, but if the States do set up similar laws, any rule passed by Congress overrules those state laws. Thus Bankruptcy is a Federal Function, but a functions the states can step in whenever the Federal Government does NOT exercise its power in that field. i.e it is NOT an exclusive power, but if passed, Federal Rules are supreme.

[primavera]

15. And the power to regulate immigration is likewise exclusively federal

Although it is not expressly so stated in the Constitution, the source of anyone's authority to regulate immigration is international law, which only gives the right to sovereign nations. This has been upheld by every court in US history and it could not be otherwise: if the US were to agree to admit 10,000 immigrants, but then an individual state unilaterally agreed to admit 50,000 immigrants, who then proceeded to move about the country freely, national authority to maintain its territorial integrity would be rendered meaningless. No state can function in such a way and every court has always known it.

[Lance_Boyle]

19. AZ is not seeking to regulate immigration, it is criminalizing illegal immigration

at the State level (illegal border crossing is already a crime, not a civil violation, in Federal law).

[primavera]

20. Another dead end

Entering the US without inspection and admission is a criminal act, but merely being in the US without papers is a civil law violation as it lacks the volitional component required for a crime. Many of the people in the US without authorization are people who entered legally, but overstayed their visas. In such instances, there's no mens rea to qualify as a crime. If there is no crime, there's no authority to arrest and detain. The feds have authority to deport people who are unlawfully present, but that comes back to the exclusive federal power to determine who should and should not be allowed to be in the US. And even they don't have the authority to impose prison sentences for unlawful presence, only the authority to return the person to where they came from, as the Constitution prohibits denying any person - not citizen, mind you, but person - of life, liberty, or property without due process of law. True, entering the US without inspection is a crime, but it's a federal crime deriving from a federal right to maintain national border integrity, not a state crime, so the state lacks standing to prosecute it. The Constitution guarantees free movement of persons from state to state, so states do not have an independent right to enforce state borders. Moreover, if you wanted to arrest an immigrant for the crime of unlawful entry, the undocumented noncitizen would become a criminal defendant, and, as such, entitled to all of the due process protections afforded to criminals, namely, a speedy trial by jury and the burden of proof would fall to the state to affirmatively prove unlawful entry and, if they could not, they could be sued for unlawful arrest. Either way, it's a legally untenable proposition.

[Lance_Boyle]

23. In AZ, 99% of illegals are illegal border crossers.

The State is not seeking to enforce any border - it is seeking to provide a penalty for those that the Feds fail to stop in the act of committing the crime of illegal border crossing. It seeks to make being in Arizona as an illegal alien punishable by State law. It will be very interesting to see if the Feds come up with an argument against the State. Immigration-regulating authority is a dead-end argument for opponents of the State's law, because it demonstrates their lack of understanding of what the State's law attempts to do.

[primavera]

24. The Feds already have come up with an argument against the State

And it's already been upheld by both courts that have heard it. Arizona's only hope is that stated by SB1070's authors, Russell Pearce (famous for having circulated white supremacist emails) and Kris Kobach (a John Ashcroft protege and lawyer who has built his career filing unsuccessful anti-immigrant lawsuits): that the current Supreme Court is sufficiently right-wing enough to reverse the hundred or so years of legal precedent barring Arizona from doing what it is attempting to do. Unfortunately, in that one respect, they may actually be correct.

[CreekDog]

27. prove it

:eyes:

[Lance_Boyle]

17. Don't know of any States that do it, but lots of towns print their own currency.

http://weakonomics.com/2009/04/30/local-towns-making-their-own-currency-so-the-weakonomist-does-one-too/

http://abcnews.go.com/WNT/Business/story?id=2903049&page=1

And of course here's the DU discussion on several States planning the same thing:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=114x86227

Regarding AZ's illegal immigration law, I think the whole reason this would go to court in the first place is to establish whether the State has the right to enforce this law. It's clearly not a settled matter of law as you assert.

[classysassy]

9. Uncle Clarence and the four other

little rascals will support Jan the hag and Arizona morons.

[primavera]

21. Yeah, therein lies the rub

Unlike everyone else in the country, SCOTUS isn't bound by the Constitution - it says whatever they want it to say.

[Frank Ness]

13. Does it make me a redneck bigot.....

if I support enforcement of the federal immigration laws ? I understand the AZ law mirrors the federal law. Though I do not know the details per say, I can tell you Arizona is reeling from the impacts of crime associated with individuals here under expired visas and outright deceit. Friends of mine have lost family members from a drunk driver who was here without a visa, driver's license, or any form of ID. Apparently, he had been deported before. A couple of weeks ago, a man was decapitated in PHX... Where is the news on that ??? There are some bad huevos here.
<http://www.azcentral.com/news/articles/2010/10/11/20101011Chandler-police-decapitated-man-arrest.html>

I dont know what it is going to take, but it sure seems like many ignore the bad associated with having an open border/ no immigration enforcement. Its getting out of hand folks. The drugs, human smuggling, gun running. It is so easy to judge AZ from afar. Mexico just sucks for a lot of people.... bad enough to risk life to be here.

[atreides1]

22. No really

[primavera]

25. No, but it's worthwhile to identify your targets before you start blasting

... lest you hit the wrong target. With the exception of allegations made by anti-immigration activist groups like FAIR and CIS, whose conclusions no reputable scholar has ever been able to duplicate, studies have shown that undocumented noncitizens are no more likely to commit crimes than anyone else. Which is not to say that they don't commit crimes, no one disputes that they do, only that they are no more likely to do so than the rest of the population. There certainly is a substantial amount of violent crime along the border related to drug and weapon smuggling, but that's a different issue: those guys aren't immigrants coming to live and work in the US, so policies that target immigrants in the US won't necessarily affect Mexican drug cartels. Those guys are certainly worth going after, no argument, but that's a different problem than undocumented migration and it needs a different policy response.

As for enforcing federal immigration law, that too is easier said than done. Despite popular perception to the contrary, we already have one of the most vigorous border enforcement programs in the world and we deport more people faster, and with fewer due process protections, than just about anyone else. As you can see, though, enforcement alone isn't doing a whole lot to stem the tide of people coming to the US. Of course, there are always more draconian enforcement measures that can be undertaken - we haven't quite reached the East Germany level yet - but at what cost to civil liberties and basic legal rights and protections? Already, a significant percentage of the people we deport are, in fact, US citizens and permanent residents, because our enforcement agencies were too eager to pack people out of the country to bother thoroughly checking the person's status. We already face a huge increase in the number of claims of employment discrimination directed against US citizens and permanent residents, simply because they happen to have dark skin, so surely they must be illegal aliens. Yes, we can do more to enforce federal immigration law, but there's always going to be a trade-off: the more enforcement measures we undertake, the more we will encroach upon people's basic civil liberties and the more innocents will be inadvertently harmed in the scuffle. Is it worth the price? Where do you draw the line?

Part of that calculus needs to be how much harm is being done. If the harm is great, then the price of stricter enforcement is comparatively the less; if the harm is small, then the price of stricter enforcement is a poor bargain. Frankly, this is really difficult to ascertain reliably. There is a ton of material out there distributed by anti-immigrant activist groups that claims that undocumented immigrants are responsible for all sorts of economic, fiscal, and social woes. But again, those conclusions have generally not been born out by impartial studies, which have typically found that the net impact of undocumented migration is either neutral or even beneficial. I don't know, personally, I can see both positive and negatives, and I fully respect that this is not some nice, easy, black and white issue: there is certainly room for reasonable people to disagree. I would only urge that people be aware that, as with any politically charged policy area, there's a whole lot of disinformation out there they should be wary of. Strategic communications professionals can (and do, you may be certain, every minute of the day) bend, twist, and distort statistics to convincingly prove that the moon is made of green cheese. But that doesn't necessarily make it so. In as emotionally volatile an area as immigration, one is well advised to exercise extraordinary caution about what to accept at face value, because you can be sure that a lot of what you hear will not be the straight or complete story.

[CreekDog]

28. it's unconstitutional to require American Citizens to prove their citizenship to avoid arrest

if you think that mirrors federal law, you're wrong. americans within the USA don't have to carry or produce proof of citizenship to avoid arrest in the USA.

you are helping spread a lie that federal law supports such things.

[No Elephants]

16. Read the constitution, Governor. Congress makes "uniform" immigration laws.

If you usurp that federal power, can we look forward to having you declare war on a foreign nation someday, too?