Holder Files Lawsuit Against Arizona

ECR ^ | 6 Jul 10 | EC

[Waco]

Judges, doubled up with laughter, are taking odds on which one will hear the ‘’case’’.

[muawiyah]

There are two ways to incorporate the Second into the Fourteenth. Four Justices said "No, we don't need any more rights". Four justices wrote a single opinion that said "well, yeah, equal rights, more or less". Justice Thomas concurred in the decision, but his argument was based on the "privileges" ~ which fit much better into his historical understanding of that amendment.

It's the big one ~ the thirteenth freed the slaves but the fourteenth said they had all the rights of men and women ~ and were citizens to boot.

That sort of thing has usually not been done when classes of slaves were freed so it's considered a major landmark in human understanding of liberty ~ even if you don't like the amendment.

[mo]

the New Arizona citizens will be of the caliber to shut down the Southern border control problems...in about 48-72hrs....I’d expect. Now about that pesky northern border...with a pissed off Parasitic Class...a whole ‘nother story.

[untrained skeptic]

States can't and don't enforce federal laws. They may enforce a state law that has a parallel federal violation (and FWIW, a person tried in both venues is NOT, as a matter of law, being subjected to double jeopardy).

States may report offenders of federal law to the feds, but state courts are not competent to render judgments flowing from violation of federal laws.

I would change that last part from competent to authorized. Enforcing federal laws is outside the scope of authority for state and local governments.

Since the federal government has authority over immigration (though I'm sure there are some that will argue this, let's assume it is true for the moment), the US Congress could explicitly preempt the states from making laws targeting illegal immigrants. That should be within their authority.

However, the US Congress has not yet seen fit to do so, Holder is effectively arguing that the Executive branch can arbitrarily preempt state or local law without an act of congress.

If Holder wins this, it sets a horrible precedence that will likely have far reaching effects.

[untrained skeptic]

if it’s the feds job... and they refuse to do it... doesn’t it fall to the state government to keep it’s citizens safe and protect the value of their property from the various criminal activity that comes with the influx of illegals?

Be careful with that line of reasoning. We had to fight here in Ohio to get preemption of local gun laws placing additional restrictions on guns beyond state law. Without such preemption, we were subject to breaking guns laws we would have no reason to know anything about while traveling around the state.

However, I'm sure some gun control activists would like to phrase that argument as having the local government keeping it's people safe because the state was failing to do so.

The ability of the federal government to preempt state laws is important. I do believe that the US Congress has the authority to preempt state and local immigration laws. However, it isn't implied. It must be specifically stated in the legislation, and that doesn't appear to be the case here.

Holder's lawsuit should fail, not because the federal government lacks the authority to prohibit such state laws, but because Congress has not exercised that authority, and Holders efforts go beyond existing law.

I'm sure that the next effort at "comprehensive immigration reform" will attempt to fix that oversight

[TigersEye]

Let’s get some spiffy uniforms and stand outside the courthouse with batons and intimidate the Justice Dept. lawyers.

[TigersEye]

It’s too bad that Arizona isn’t being run by the New Black Panthers.

We will just have to form up a group of New White Panthers. And some Cougars. AZ has some hot Cougars. And a few other old cats.

This is your billy club this is your baton.

[Lmo56]

Can someone please explain to me why it’s an issue for the state to enforce immigration laws but not federal drug or gun laws?

This is somewhat complicated. First, read the applicable sections of the Constitution, below.

Article I, Section VIII [Clauses IV and XVIII]: Powers of Congress

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

"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 VI [Clauses II and III]: Debts, Supremacy, Oaths

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

10th Amendment:

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.

***

The Justice Department's position is that the federal government has EXCLUSIVE jurisdiction over immigration policy.

Arizona's position is that it is relying on the 10th Amendment. The right TO NOT enforce a law IS NOT delegated EXCLUSIVELY to the United States [and, consequently, prohibition of a state to oppose this policy]and that state enforcement of a federal law IS NOT prohibited by the Constitution.

[muawiyah]

Try as you might you can't quite work the immigration thing into an exclusively federal prerogative. The now moribund part of the Constitution referring to bringing in people to a state (referred to as "importing") is arguably still in effect although the slaves it presumably referred to no longer exist.

It was clear at the time that states regulated the "importing" of people! When a professional coyote brings in a truckload of Mexicans, he is "importing" people into a state.

I think there could be a successful argument that even if the federales have some jurisdiction in the matter, the states also have their own authority and can regulate the practice, or punish the perpetrators.

Remember, just because the Civil War is over that doesn't mean it's over!

[Cboldt]

-- I would change that last part from competent to authorized. Enforcing federal laws is outside the scope of authority for state and local governments. --

You are right. My use of the word "competent" in this context is a likely source of confusion. The state courts lack jurisdiction over federal laws.

-- ... the US Congress could explicitly preempt the states from making laws targeting illegal immigrants --

Or a decision could come from a court, to similar effect, which is what Holder is seeking.

If there is a court decision that the state can't enact and enforce a law that is no more and no less onerous to people in the country, citizen and non-citizen alike, that decision will be based on illogic. The issue is essentially one of prosecutorial discretion, not constitutionality of the underlying law.

[untrained skeptic]

It was clear at the time that states regulated the "importing" of people! When a professional coyote brings in a truckload of Mexicans, he is "importing" people into a state.

Interstate and international commerce falls under the authority of the federal government. However, it is only exclusive authority if the federal government passes a law prohibiting the states from exercising authority over it.

Arizona can legislate labor laws for coyote's unless the US Congress passes a law prohibiting them from doing so. However, if Congress passes a law making the smuggling of people the exclusive jurisdiction of the federal government, then any state or local laws become unenforceable.

In areas where the Constitution grants the Federal government authority, their authority preempts lower authorities. The federal government can specifically delegate some of that authority to the states, or they can prohibit the states from exercising any laws on the topic.

However, the Executive branch cannot do so without legislation directing them to do so.

[muawiyah]

Maybe we should ask Congress to pass a law regulating the "importing" of people so the coyotes can be brought under control.

At the moment all the federales are working on is a body of law built up out of considerations of convenience. There is no specific delegation of authority to the federal government to control the national borders.

Actually, in the federal scheme we have NO national border ~ which is probably why the Founders didn't see fit to delegate that authority to Congress to legislate.

The Courts have gone along with the idea that the federales control the borders, but that's just their opinion. Presumably Arizona has a border and can control it.

[untrained skeptic]

The Courts have gone along with the idea that the federales control the borders, but that's just their opinion. Presumably Arizona has a border and can control it.

That gets you into the realm of interstate commerce over which the constitution grants the federal government authority. In an area where the federal government is granted authority, federal law superceeds state law. Therefore the federal government can pass a law forbidding state laws like the one Arizona passed.

To my knowledge, the federal government has passed no such law, and without such a federal law, the Arizona law should be perfectly enforcable.

I also think there is little chance in today's political climate of Congress passing such a law. So the Arizona law should be upheld.

As for Coyotes, we already have plenty of laws. The administration has little will to enforce them, and even if they did want to enforce them, Congress refuses to provide enough funding to do so.

Immigration is one of the many topics where Congress will pass a law to present an appearance of doing something, and then not provide funding to actually do it.

[muawiyah]

Protecting a border does not require you to cross that border. Such activity could take place as a perfectly intrastate event. Maybe a few rounds might cross the border, but the state's jurisdiction rights all the way up to the traditional Common Law measurement of 6 inches.

Commerce can, of course, be routed to appropriate roads ~ but it's pretty clear the Constitution still reserves the privilege of "importing people" to the states!

We need some special Coyote Labor Laws.