Arizona Immigration Decision (Andy McCarthy dissects Bolton decision-not good.)

National Review ^ | July 28, 2010 | Andy McCarthy

[greyfoxx39]

Wednesday, July 28, 2010

Arizona Immigration Decision   [Andy McCarthy]

On a quick read, the federal court's issuance of a temporary injunction against enforcement of the major provisions of the Arizona immigration law appears specious.

In essence, Judge Susan Bolton bought the Justice Department's preemption argument — i.e., the claim that the federal government has broad and exclusive authority to regulate immigration, and therefore that any state measure that is inconsistent with federal law is invalid. The Arizona law is completely consistent with federal law. The judge, however, twisted to concept of federal law into federal enforcement practices (or, as it happens, lack thereof). In effect, the court is saying that if the feds refuse to enforce the law the states can't do it either because doing so would transgress the federal policy of non-enforcement ... which is nuts.

The judge also employs a cute bit of sleight-of-hand. She repeatedly invokes a 1941 case, Hines v. Davidowitz, in which the Supreme Court struck down a state alien-registration statute. In Hines, the high court reasoned that the federal government had traditionally followed a policy of not treating aliens as "a thing apart," and that Congress had therefore "manifested a purpose ... to protect the liberties of law-abiding aliens through one uniform national system" that would not unduly subject them to "inquisitorial practices and police surveillance." But the Arizona law is not directed at law-abiding aliens in order to identify them as foreigners and subject them, on that basis, to police attention. It is directed at arrested aliens who are in custody because they have violated the law. And it is not requiring them to register with the state; it is requiring proof that they have properly registered with the federal government — something a sensible federal government would want to encourage.

Judge Bolton proceeds from this misapplication of Hines to the absurd conclusion that Arizona can't ask the federal government for verification of the immigration status of arrestees — even though federal law prohibits the said arrestees from being in the country unless they have legal status — because that would tremendously burden the feds, which in turn would make the arrestees wait while their status is being checked, which would result in the alien arrestees being treated like "a thing apart."

The ruling ignores that, in the much later case of Plyler v. Doe (1982), the Supreme Court has emphasized that

Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State's economy generally, or the State's ability to provide some important service. Despite the exclusive federal control of this Nation's borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns. [Emphasis added.]

Furthermore, as Matt Mayer of the Heritage Foundation notes, the Fifth Circuit federal appeals court similarly held in Lynch v. Cannatella (1987) that "No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation's immigration laws."

However this ruling came out, it was only going to be the first round. Appeal is certain. But the gleeful Left may want to put away the party hats. This decision is going to anger most of the country. The upshot of it is to tell Americans that if they want the immigration laws enforced, they are going to need a president willing to do it, a Congress willing to make clear that the federal government has no interest in preempting state enforcement, and the selection of judges who will not invent novel legal theories to frustrate enforcement. They are not going to get that from the Obama/Reid/Pelosi Democrats. 

[greyfoxx39]

Political Ping

[Wings-n-Wind]

Susie Q is a Klintoon (x42) appointee...

Go figure...

[onyx]

I can see November from Arizona.

[roses of sharon]

Nope...Conservatives will be angry...most Americans love the courts, they will believe that AZ was wrong and Obama was right.

Never count on the American people, or the ballot box to save us.

[joe fonebone]

I guess there is a reason why I am not a governor of a state. If I was, I would do the following:

1) arrest the judge that made the decision, based upon the refusal to uphold the constitution.

2) implement the enforcement of the constitutional law based solely upon the 10th amendment.

3) activate the state national guard and deploy them to repel any federal agency that tries to arrest and/or imprison anyone that enforces the laws of the independent state in accordance with the 10th amendment.

4) tell fubo to go to hell.

that is why I cannot be elected to run a state

[WOBBLY BOB]

...and more nuanced than John Kerry on a secret interstate yacht mission.

[Tarpon]

Do what Obama does when a judge blocks your actions ... Just do it anyway.

[Friendofgeorge]

You know what they say eh? The only good democrat is a %#$# democrat.

%#$# = former...other words may also fit

[UCFRoadWarrior]

However this ruling came out, it was only going to be the first round. Appeal is certain. But the gleeful Left may want to put away the party hats. This decision is going to anger most of the country. The upshot of it is to tell Americans that if they want the immigration laws enforced, they are going to need a president willing to do it, a Congress willing to make clear that the federal government has no interest in preempting state enforcement, and the selection of judges who will not invent novel legal theories to frustrate enforcement. They are not going to get that from the Obama/Reid/Pelosi Democrats.

---

The last paragraph is spot on...except that its not only Obama/Reid/Pelosi that are the problem......there are too many in the GOP who support Illegal Alien Amnesty...and need to be voted out

Starting with John McCain in Arizona....

If a candidate is not 100% committed to DEPORTING ILLEGAL ALIENS....they support AMNESTY. If you vote for a candidate that supports AMNESTY...YOU support AMNESTY.

Its time to rid our political system of pro-illegal alien politicians, and it needs to start with the GOP.

[Political Junkie Too]

Judge Bolton proceeds from this misapplication of Hines to the absurd conclusion that Arizona can't ask the federal government for verification of the immigration status of arrestees — even though federal law prohibits the said arrestees from being in the country unless they have legal status — because that would tremendously burden the feds...

She's nuts. Federal law specifically establishes an agency within DOJ to handle requests from the state for verification of status. Now she says that it is a burden on the feds for the state to make use of the service that the feds set up for the states in the first place?

She's nuts...

TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part IV > § 1226 (Apprehension and detention of aliens) says:

(d) Identification of criminal aliens

(1) The Attorney General shall devise and implement a system—

(A) to make available, daily (on a 24-hour basis), to Federal, State, and local authorities the investigative resources of the Service to determine whether individuals arrested by such authorities for aggravated felonies are aliens;

(B) to designate and train officers and employees of the Service to serve as a liaison to Federal, State, and local law enforcement and correctional agencies and courts with respect to the arrest, conviction, and release of any alien charged with an aggravated felony; and

(C) which uses computer resources to maintain a current record of aliens who have been convicted of an aggravated felony, and indicates those who have been removed.

(2) The record under paragraph (1)(C) shall be made available—

(A) to inspectors at ports of entry and to border patrol agents at sector headquarters for purposes of immediate identification of any alien who was previously ordered removed and is seeking to reenter the United States, and

(B) to officials of the Department of State for use in its automated visa lookout system.

(3) Upon the request of the governor or chief executive officer of any State, the Service shall provide assistance to State courts in the identification of aliens unlawfully present in the United States pending criminal prosecution.

The federal code requires that the Attorney General create a database of legal immigrants that local law enforcement can call upon for verification of suspected illegal immigrants. The local law enforcement would not access this database directly, but would go through a liaison within the Justice Department. The federal code says that the Justice Department is to make this system available on a 24-hour basis.

-PJ

[opentalk]

Wonder how long the appeals process takes. In the interim, SEIU, acorn, laraza will jam the voting booths in November.

[Wings-n-Wind]

"We the people..."

....are not LOUD ENOUGH... YET!

*****

It's time to investigate this federal judge,
Along with her staff, associates and clerks, for any and all contact between her office and the USDOJ--
--OR--
Any other administration officials, messengers...
--OR--
Political groups, committees or entities since the AZ Law SB1070 was passed---
--AND--
Certainly during the tenure of this case -- so far.

*****

If she can accept and include an Amicus Curiae brief from a foreign government (Mexico)---
She can dang well listen to the heart beat of the CITIZENS and LEGAL IMMIGRANTS in the District she serves.

/End of rant...

[Uri’el-2012]

The question that needs to asked is:

Did Judge Bolton read the law before she ruled against it.

Most Marxist/Anarchists did not read the law be speaking against it.

[jackv]

We know darn well that this judge got a phone call from bo. Evil is running our country now.

[Truth29]

Obama's dream, a Hugo Chavez type justice system. We are rapidly working toward a situation where the justice system is a tool of oppression for the regime.

When the people no longer have any confidence in the justice system and no longer support the government by sizable majorities we're are headed toward totalitarian oppression, anarchy or revolution.

[Spok]

Bolton’s decision will be reviewed de novo, which means the higher courts are bound by nothing she says. If that’s of any comfort.

[moehoward]

"The judge, however, twisted to concept of federal law into federal enforcement practices (or, as it happens, lack thereof).'

Unfortunately, not this first time this reasoning has been applied by a Court.

[La Lydia]

When the history is written, the Obama administration will be identified as the point where the United States ceased to be a county under the Rule of Law. From the Black Panther case, to this one, and on and on, our country is no longer run by the consent of the governed, but by our Overlords who arrange everything to allow themselves to stay in power. Any law that the Overlords don’t like stays on the books, but isn’t enforced. And no one else is allowed to enforce our laws, either. We had a good run, but it is over. Very 1984.

[Trod Upon]

It’s probably nearing time to call for militia assistance in restoring order to the border.