Posted on 07/28/2010 4:23:25 PM PDT by Para-Ord.45
This is a typical example of a judge stating the correct legal standard, but then ignoring it and applying the test in a fashion completely divorced from the facts of the case in order to reach a predetermined decision.
First, the court states correctly that the sort of constitutional challenge brought here — a facial challenge — is the most difficult challenge to mount successfully. It requires that the plaintiff (here the federal government) must demonstrate that the law can never be applied in a constitutional fashion. The test cannot be met with hypothetical arguments — yet that is exactly what the court relies on in its ruling: the assertion that the AZ law will impose an impermissible burden on law enforcement, which is to determine the legal status of a person detained pursuant to the AZ law on the reasonable suspicion that the person is in the country illegally. The court does not provide any empirical basis to support its conclusion. It’s pure supposition.
As the court notes, the burden a party must meet when engaging in a facial challenge of a given statute is established in United States v. Salerno. The court pays lip service to Salerno at the beginning of its analysis on the “likelihood of success on the merits,” but then proceeds to ignore the Salerno principles.
The court cites Salerno when it notes: “A facial challenge must fail where a statute has a ‘plainly legitimate sweep.’” In deciding a facial challenge, courts “must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or imaginary cases.” Then the court doesn’t even attempt to actually analyze the provisions it overturns within the Salerno context, except in one instance — in fn. 18 — where it upholds a provision of SB 1070.
Distinguish the facial challenge from an as-applied challenge. At one point the court engages in a hypothetical example, when it talks about a potential unfair burden on a legal alien failing to have a dog on a leash, wondering whether he could be detained and subject to an impermissible burden for not carrying his papers under that circumstance. (The court talks about John Doe, a legal alien from Chile who was walking his dog without a leash and was stopped by Sheriff Smith and detained at the local jail for eight hours while his status was checked. It didn’t actually happen.)
The judge also worries that increasing the time a person is detained while his immigration status is being determined might be unconstitutional. Again, pure speculation. (Moreover, the First Circuit Court of Appeals has already found that such a delay is permissible where there is reasonable suspicion to check a person’s status.)
In the bulk of its legal analysis, the court applies a selective reading of the case to an incomplete reading of the statute. In particular, respecting the provision related to confirming a person’s legal status, the court largely ignores the requirement that law-enforcement officers are able to confirm a person’s legal status only where there is a reasonable suspicion that a person is in the country illegally. The judge essentially omits the reasonable-suspicion component of the law and concludes that the act implements a new set of immigration rules particular to Arizona, in violation of a case called Hines v. Davidowitz.
Hines is an old case dealing with a vastly different Pennsylvania law. Here’s what the Hines court correctly concluded: “The question whether a state law is invalid as conflicting with Federal laws touching the same subject is not to be determined according to any rigid formula or rule, but depends upon whether, under the circumstances of the particular case, the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
The Pennsylvania act required every alien 18 years or over, with certain exceptions, to register once each year; provide such information as is required by the statute, plus any “other information and details” that the Department of Labor and Industry may direct; pay $1 as an annual registration fee; receive an alien identification card and carry it at all times; show the card whenever it may be demanded by any police officer or agent of the Department of Labor and Industry, and exhibit the card as a condition precedent to registering a motor vehicle in his name or obtaining a license to operate one. The Department of Labor and Industry is charged with the duties of classifying the registrations for “the purpose of ready reference,” and furnishing a copy of the classification to the Pennsylvania Motor Police. Nonexempt aliens who fail to register are subject to a fine of not more than $100 or imprisonment for not more than 60 days, or both. For failure to carry an identification card or for failure to show it upon proper demand, the punishment is a fine of not more than $10, or imprisonment for not more than 10 days, or both.
“Our conclusion,” said the court, “is that [the challenger of the PA law] is correct in his contention that the power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation, but that whatever power a state may have is subordinate to supreme national law.” Hines does not support the court’s conclusion respecting the AZ statute. That case clearly deals with an entirely new legal regime. AZ’s statute merely complements the federal statutory scheme.
Amazingly, today’s decision does not provide any substantive analysis of the very high standards required for mounting a successful facial challenge. The judge thinks certain events or difficulties will occur, and then uses her thoughts as a substitute for empirical evidence. The fact is that the AZ law does not create any new or additional federal responsibilities. It does not establish any new or inconsistent obligations for aliens legally or illegally residing in or otherwise found in Arizona. And. unlike the Hines case so prominent in the court’s ruling, Arizona’s law does not establish any new or extra forms, registration procedures, or other obligations for aliens, legal or illegal.
Respecting preemption, which is the substantive core of the federal government’s case, once again the court presents no evidence in support of its conclusion that AZ is likely to impermissibly interfere with federal law on multiple fronts, including the requirement that aliens carry papers or that state and local law enforcement may undertake constitutionally proper inquiries into the legal status of those they stop. AZ isn’t requiring the federal government to do anything. The federal government can choose not to take AZ’s calls and not cooperate. The court has essentially parroted the federal government’s claims about burdens.
Moreover, the federal government does not “occupy the field” in any event. Indeed, as a matter of federal law and long-standing practice, it encourages states to assist in the enforcement of federal immigration law — both in practice and law. In fact, it relies heavily on them.
Federal preemption can be either express or implied: express where the Constitution says so (declaration of war), implied by conflict with federal law. In the immigration context, implied preemption exists only 1) if a statute falls into the narrow category of a “regulation of immigration”; 2) if Congress expressed “the clear and manifest purpose"”of completely occupying the field and displacing all state activity; or 3) if the state regulation conflicts with federal laws such that it “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress” (De Canas v. Bica). Federal immigration law does not preempt AZ law, and the authors of the AZ law were well acquainted with the pitfalls they needed to avoid — and avoided them.
I think the word “abomination” does not overstate this court’s decision.
— Mark Levin is president of Landmark Legal Foundation, which has filed an amicus brief in this case.
Geez, do I really need to explain why?
susan bolton (I refuse to call her a judge) needs to have the next death in Arizona at the hands of an illegal hung tightly around her neck. She needs to be hounded to the outskirts of hell with it.
IOW, this leftist twit of a judge is a dishonest, incompetent, ideological FRAUD.
There is no evidence, no reasoning in application of statutes or constitutional principles.... nothing but this worthless judge’s personal political OPINIONS about what she wants.
Maybe you need to realize more fully where we are in terms of our nation...America has been killed...no doubt about that. We can only try to restore it. I doubt it will be done by being polite...what do you think?
Considering 25 Americans a day are killed by illegals; that shouldn't take long.
"a. Mandatory Immigration Status Determination Upon Arrest
The Court first addresses the second sentence of Section 2(B): “Any person who is arrested shall have the person’s immigration status determined before the person is released.”
Arizona advances that the proper interpretation of this sentence is “that only where a reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the United States must the person’s immigration status be determined before the person is released.” ...Arizona goes on to state, “[T]he Arizona Legislature could not have intended to compel Arizona’s law enforcement officers to determine and verify the immigration status of every single person arrested – even for United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country.” (Id.)
The Court cannot interpret this provision as Arizona suggests. Before the passage of H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, “For any lawful contact” rather than “For any lawful stop, detention or arrest.” (Compare original S.B. 1070 - 2(B) with H.B. 2162 - 3(B).) The second sentence was identical in the original version and as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature’s intent to state that it originally intended the first two sentences of Section 2(B) to be read as dependent on one another. As initially written, the first sentence of Section 2(B) did not contain the word “arrest,” such that the second sentence could be read as modifying or explicating the first sentence. In S.B. 1070 as originally enacted, the first two sentences of Section 2(B) are clearly independent of one another. Therefore, it does not follow logically that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any way. If that had been the Legislature’s intent, it could easily have modified the second sentence accordingly.
As a result of this conclusion, the Court reads the second sentence of Section 2(B) independently from the first sentence. The Court also concludes that the list of forms of identification that could provide a presumption that a person is not an unlawfully present alien applies only to the first sentence of Section 2(B) because the second sentence makes no mention of unlawful presence: the second sentence states plainly that “[a]ny person who is arrested” must have his or her immigration status determined before release. A presumption against unlawful presence would not dispose of the requirement that immigration status be checked because a legal permanent resident might have a valid Arizona driver’s license, but an inquiry would still need to be made to satisfy the requirement that the person’s “immigration status” be determined prior to release."
So the 1st sentence and the 3rd sentence on all are connected to each other, but sentence #2 is totally independent of the sentences before and after, regardless of the written AZ intent.
Thanks Para-Ord.45.
Has anyone figured out : How do we compel the Federal Government to enforce the Law against illegals? What is the remedy when laws are not enforced?
My lawyer says I’d lose the suit, because you’d just claim that the “jest” you found objectionable was just off track. You “win,” and I hope your win does for you what Obama’s will do for him: get him fired!
But if they do, the feds will sue them for profiling, when what AZ will actually be doing is interfereing with the feds non-enforcement of federal AND state law.
bump
The solution is pretty simple, actually, and it will only amplify the “law of unintended consequences” that liberals think they can avoid by piling up “legal” laws.
While state / local LEOs are now [temporarily] prohibited from “determining the immigration status” of suspects, they can detain them and refer to or have the federal authorities determine what the legal / “immigration” status of detainee is. I am sure that a lot more people will be inconvenienced by this, including detainees who are legal residents or citizens, but also the federal system of identification will be overburdened by what police officers could have done and usually routinely do themselves.
In other words, use this judge’s decision to put the burden right back where it belonged in the first place - on the federal immigration law enforcement agencies. That would be legal and in keeping with the “letter and the spirit” of the judge’s preliminary injunction ruling.
Not to mention, help rile the masses just before the next election, because these actions will keep it in the news for the next 3 months...
That’s right. Susan the activist judge has blood on her hands. Shame on her.
I think both of you need to get a grip. Joking around about assassination doesn't help anyone, and for the record, I'm not the one who notified the moderator and had the post pulled. It's not my style...
I have a grip...I didn’t claim you notified the moderator...wouldn’t think anything of it if you had.
Illegal Aliens by definition can not carry documentation papers.
Only a legally admitted Alien can carry or fail to carry such papers.
This Judge is insane.
“How do we compel the Federal Government to enforce the Law against illegals? What is the remedy when laws are not enforced?”
Fire every elected official who refuses to do the job.
“What is the remedy?”
indeed.
Persistence.
The consequences of Susie’s ruling are so extensive as to change the very nature of our nation. Here are some:
1. Eliminates the need and authority of state governments;
2. The Ninth and Tenth Amendments have no validity;
3. Creates a separate class of people not bound by laws;
4. Kills any notion that we are a nation of laws; and
5. American citizenship is worthless.
America is officially and judicially a dictatorship. Anybody, nay EVERYBODY, reach their tipping point yet?
I REFUSE TO ACCEPT DICTATORSHIP. Susie can put this decision where the sun don’t shine.
I don’t think Rush endorsed the Old Hickory Option, but he did mention it somewhat forcefully:
Andrew Jackson: “Justice Marshall has made his decision. Let him enforce it.”
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