Posted on 08/02/2010 10:07:12 PM PDT by Regulator
The Supreme Court DOES have original jurisdiction. If they want to hear this case they can. And there is nothing that Congress can do to stop them.
Under the Constitution, Congress is given certain authority to regulate the appellate jurisdiction of the Supreme Court and the original jurisdiction of other courts.
Were Congress to try to strip the Supreme Court of its original jurisdiction to hear these cases, then it would be over-stepping its constitutional bounds.
It it the Supreme Court that is not interested in hearing these cases on original jurisdiction. And the process of going through the lower courts is very helpful in that it sharpens the issues, often removing extraneous issues by the time the case reaches the Supreme Court.
The short version is that the Supreme Court has agreed to dilute its original jurisdiction, through a series of cases that lack coherency.
In Marbury v. Madison, SCOTUS held that it was powerless to expand its original jurisdiction beyond what the constitution recites - as between the constitution and Congress, the constitution must control. This "rule" is obviously discarded when it is convenient to do so.
But I just reread the clause, and it seems clear that the Constitution does not give the Congress a right to append a comment like 28 sec. 1251 (b) - it changes the meaning of the word "shall" in this context. The exclusivity seems implicit - but Congress is making the assertion that unless explicit, they have the right to open up the field to the lower courts.
The statute seems to thus twist the nature of the original statement, and in so doing diminishes the role of the Supreme Court, and appears to be redistributing power in a way not envisioned in the original document.
I understand your statement that it did not take away their right to try the case, but rather simply extended such right to lower courts.
With that said, then, what would prevent Arizona at this point from bypassing the 9th and simply going to the SCOTUS?
This is not a little case. If the Supreme Court "is not interested in hearing these cases", then what in God's name will get their attention? Debates over convertible debentures?
This is way beyond Mariana Pfaelzer and 187. THAT was a lawsuit initiated by private groups against the State of California. THIS is a lawsuit initiated by the FEDERAL government against a STATE over a duly debated law passed by the Legislature, signed by the Governor! It is a major initiative with International implications, and the sovereign rights of a State at issue!
Does it need "sharpening"? Do they have to wait till gunfire erupts?
I'm from Tucson. I can safely tell you that NONE of the things that have happened there in the last week EVER happened before --- thousands of Mexican irredentists and their sympathizers rioting for the "Right" to occupy American territory? A terrorist incident on Interstate 17 involving a blockade of the highway?
In 1965 this would have been a shooting war at this point. Seriously. Please believe me, I don't know where you live or have lived, but I can tell you that in Arizona, such a thing is very close now. It isn't a diluted, deracinated place like California or New York.
Original jurisdiction does not mean that the Supreme Court has to hear it first. It just means that it can hear it first. What I have not understood is why the state did not seek to move it to the Supreme Court. There may be a Supreme Court rule of court that prevents it. This clause is not obscure; it is known by any first year law student. So, there must be a reason why Arizona’s lawyers did not seek to have the case sent to the Supremes. I just don’t know what it is.
Exclusivity has never been considered “implicit.”
The grant of some types of concurrent original jurisdiction goes back all the way to the Judiciary Act of 1789.
Take your complaint to President Washington and the First United States Congress.
By the way, there is no question but that this case will ultimately be decided by the highest court in the land.
The pleadings and briefs in the district court and court of appeals are not chopped liver.
All of the parties hitting the law books at each step of the way makes sure the issues get out on the table and fully explored more than if there was just the one set of briefs and oral argument in only one court level, and then a final decision given.
I note from your link:
But where claims are of sufficient “seriousness and dignity,” in which resolution by the judiciary is of substantial concern, the Court will hear them
As I pointed out....what does it take? This case is about the most serious thing to come out of Arizona since Miranda...and to me, goes way beyond that little procedural dustup.
This is about the existence of the nation. Do we have borders, or is Invasion a civil right?
Did the 1846 War and the Gadsden Purchase mean anything, or was I born on Mexican Territory, and will I have to show my passport to see my Mother's grave?
It's that serious, folks.
what’s your take on this?
Constitution seems clear to me.
Why doesn’t Arizona object?
I think you know the answer to that.
The government will studiously avoid the term "invasion," while radically increasing the rate and loosening the standards for immigration.
Instead of "melting pot," I'll use the metaphor of mixing bowl, and the baking of a cake. The ingredients being put in now are not cake ingredients.
Arizona controls where it files the case, and it is free to file in the Supreme Court, requesting leave to file its complaint there.
It could do that now, and the trial below persists. See Arizona v. New Mexico, 425 U.S. 794 (1976), which has a similar pattern except the case was being heard in a New Mexico state court.
I can think of reasons why it doesn't. Arizona may believe it will get a better trial in a district court / circuit appeal (more professional, better reasoning) that it would get from the Supreme Court; it knows the Supreme Court would reject the motion, so better to not waste the effort and risk pissing off the Supreme Court.
It is typical that the United States (and actually the states themselves) simply assume that whatever the US Government does, it has the power to do. But if we follow the constitution, then the ruling by Susan Bolton is void.
So you are saying that Title 28, Section 1251 giving Judge Bolton jurisdiction is unconstitutional?
I would say yes.
The Founders put this clause in the Constitution to make sure that the Federal Government did not have the authority to pick and choose favorable lower courts to sue States (and vice-versa) and vested the power to hear these controversies in the Supreme Court and ONLY the Supreme Court. Congress and even the Supreme Court do not have the constitutional authority to give original jurisdiction to lower courts in these matters.
But then neither the Congress nor the Supreme Court has shown much deference to the actual language and intent of the Constitution in the last 100 years.
And under what section of the Constitution was Congress given the power to grant any jurisdiction in these matters to lower courts?
But this is precisely the fear.
It is not beneath the 9th Circuit to pull some stunt that would muddy the waters and give Arizona a clouded decision, leaving it in some legal netherworld.
That way they would achieve their goal of neutering the law and furthering the invasion. Perhaps you think that conclusionary, but I have lived through the willful nullification of Proposition 187 - approved by the votes of 6 MILLION people, nullified by a handful of deranged Leftists in the Federal District court and the 9th Circuit - and nothing could have been clearer while they were doing it: they believe that there should be no impediment to the migration of any Mexican north of the putative "border".
The more hands something passes through, the less it looks like what it was when it started.
Your position is that this is a good thing because it will be stripped to its legal essentials - an understandable argument, that a strict filter should be applied so that trivial considerations are gone by the time it arrives in Justice Robert's chambers.
But look at what Bolton has already done: the case was originally filed because Holder claimed possible damage to non-whites who would be harassed without cause. She said nothing about this supposed reason for the entire case, and instead meandered off into emotional hand wringing about inconveniencing certain classes of legal immigrants.
This is a necessary filter? For something of this significance?
At the very least, it appears to me that 1251 (b) is being abused here in an attempt to do just what I said: muddy the waters, lard up the suit with extranea and tangential concerns, weigh it down until it sinks in multiple side arguments which never get clarified up or down.
It really should have gone straight to the high court.
A parenthetical note: it's not clear to me that the lawyers for Arizona are the best guys for the job. Conservatives tend to be straight forward thinkers, they don't see the sleaze games coming at them - call it a lack of criminal tendencies. But that isn't true of a bunch of backstreet thugs like the ones that hang around the Democratic Party (Greg Craig and Erskine Bowles come to mind...). This is another reason I'm not so sure about getting to SCOTUS with the questions intact. The derailment effort is now in full swing, and they won Round 1. Recall that everyone thought there would be no grounds for Bolton to stay the law. But she took the hints from the government, and stuck it to Arizona.
I have every reason to believe that effort will continue, especially with the 9th bleating that they "just don't have time until November". BS. Intentional foot dragging.
Article III.
As I pointed out above, President Washington and the very first U.S. congress decided in the Judiciary Act of 1789 that the Supreme Court's original jurisdiction would NOT be exclusive for certain types of cases, for example as to cases brought by ambassadors.
You may recall that a lot of those folks had something to do with writing the Constitution.
But it's good to know that you know better what the Constitution means than the people who actually wrote it!
The issues, the precedents and the arguments will be more fully flushed out by the time it reaches the Supreme Court as a result of the brief-writing and opinion-writing and argument before two lower courts.
For example, one of the points of argument that have emerged even since the District Court decision is that since the Supreme Court has ruled that foreign nationals who are detained by police have a right to speak to their consulate, that it necessarily implies that police must have the power to ascertain what the nationality of a detained person is in order to sustain this right.
My own personal opinion is that we are going to win 5-4 at the Supreme Court level. But I would rather see the case go through the lower levels first because I frankly don’t trust the clerks at the Supreme Court to get all the research and issues right if the entire burden of prepping the case was on them.
I think, or at least hope, that the important principle the Supreme Court will establish in this case is that for purposes of preemption the federal government’s position consists of statutes passed by Congress and regulations pursuant to duly delegated authority, and that a mere policy by the Executive Branch not to enforce Congress’s laws does not itself constitute the federal government speaking on an issue for purposes of preemption.
In the meantime, Arizona police are free to ask detained persons about their immigration status. They cannot be required to do so under the preliminary injunction, but they are allowed to do so and I would expect most of them will continue to do so while this case makes its way up.
Judiciary Act of 1789:
SEC. 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party,
except
between a state and its citizens;
and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction.
And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.
.
There you have it, my friend. Pursuant to this act by the founders, the Supreme Court has exclusive jurisdiction where the United States is suing a state (or vice versa).
I don't see any exception where the plaintiff is the US Government and the defendant is a State. Nor is there an exception where the plaintiff is the State and the defendant is the US Government.
The Constitution is clear. Congress has no authority to change the Constitution so even if they did grant the Supreme Court jurisdiction, the granting would be invalid.
Is is too much to ask that you read what I posted?
The example I gave from 1789 was CASES BROUGHT BY AMBASSADORS.
I used that to show that the PRINCIPLE that original jurisdiction of the Supreme Court was NOT considered EXCLUSIVE was known from the very beginning, by the very people who WROTE the Constitution.
The CURRENT LAW is not the Judiciary Act of 1789. It is 28 USC 1251.
The same constitutional basis that Congress used in 1789 to provide that cases brought by ambassadors would NOT be exclusive to the Supreme Court, was used in the current law to provide that cases between the US and a state would NOT be exclusive to the Supreme Court.
Do you have any reason to believe that this should be viewed as a case between: Arizona and aliens?
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