SCOTUS decision thread for Monday, June 25th, 2012 (10am EDT)

Imagine a President declaring that the feds would not enforce drug laws,

Bad choice. The drug laws are contrary the Constitution; hell even by the lawyer's sacred cow of precedent the 18th Amendment was needed for federal regulation of Alcohol. No such amendment was ever passed with respect to drugs.

and that the states could not arrest anybody caught transporting drugs across a state border because regulation of interstate commerce is a federal function.

Heehee -- That would be amusing.

Heard on the radio today, before the decision came out, Kennedy has voted 75% of the time with the conservative arm of the court.....Doesn’t swing VERY often.

Justice Scalia is not only dissenting from the bench, but he has produced a written copy of the bench statement for the press. It is 7 pages long.

If anyone finds a link to this, I'd be interested in reading it.

Not so. I suggest you read both the decision and SB 1070. FYI: Being in the country illegally is a deportable offense.

The Federal government has sole authority over deportation. The section was not struck down for the reason you cited,

Section 6 authorizes officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.” §13–3883(A)(5). The United States argues that arrestsauthorized by this statute would be an obstacle to the removal system Congress created.

As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez16 ARIZONA v. UNITED STATES Opinion of the Court Mendoza, 468 U. S. 1032, 1038 (1984). If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Appear. See 8 U. S. C. §1229(a); 8 CFR §239.1(a) (2012).The form does not authorize an arrest. Instead, it givesthe alien information about the proceedings, including the time and date of the removal hearing. See 8 U. S. C. §1229(a)(1). If an alien fails to appear, an in absentia order may direct removal. §1229a(5)(A).

>The federal statutory structure instructs when it is appropriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removedfrom the United States.” 8 U. S. C. §1226(a); see Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter 2011 ICEMemorandum) (describing factors informing this and related decisions). And if an alien is ordered removed after a hearing, the Attorney General will issue a warrant. See 8 CFR §241.2(a)(1). In both instances, the warrants are executed by federal officers who have received training in the enforcement of immigration law. See §§241.2(b), 287.5(e)(3). If no federal warrant has been issued, those officers have more limited authority. See 8 U. S. C. §1357(a). They may arrest an alien for being “in the United States in violation of any [immigration] law or regula- tion,” for example, but only where the alien “is likely toescape before a warrant can be obtained.” §1357(a)(2).

Section 6 attempts to provide state officers even greater ability than Congress has given to trained federal immigration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassmentof some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.

This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A principal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See §1357(g)(1); see also§1103(a)(10) (authority may be extended in the event of an“imminent mass influx of aliens off the coast of the United States”); §1252c (authority to arrest in specific circumstance after consultation with the Federal Government);§1324(c) (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements aresubject to the Attorney General’s direction and supervision. §1357(g)(3). There are significant complexitiesinvolved in enforcing federal immigration law, including the determination whether a person is removable. See Padilla v. Kentucky, 559 U. S. ___, ___–___ (2010) (ALITO, J., concurring in judgment) (slip op., at 4–7). As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigration officer. See §1357(g)(2); cf. 8 CFR §§287.5(c) (arrest power contingent on training), 287.1(g)

FYI: Today, the Obama administration pulled 287 g authority away from AZ. They did it because they did not like the SCOTUS ruling. In essence, they have taken away AZ's ability to enforce immigration laws even with trained personnel. This is a travesty and is dispicable.

“would allow the State to achieve its own immigration policy.”

Is this not exactly what I said was the problem with section 6? Yes, I read the court decision. No state has ever had control over immigration. Immigration is an enumerated power of the federal government, per the constitution, not the states. The 10th only applies to enumerated powers, and immigration is an enumerated power.

“Today, the Obama administration pulled 287 g authority away from AZ. They did it because they did not like the SCOTUS ruling. In essence, they have taken away AZ’s ability to enforce immigration laws even with trained personnel. This is a travesty and is dispicable.”

SCOTUS has already upheld the ability of the state of AZ to not only document, but enforce federal immigration law within the boundary of the state.

The Obama administration can do whatever they want, but they cannot abrogate the decision of the supreme court of the united states.

AZ should defy the administration and ramp up efforts to document all the illegal immigrants that they do encounter under reasonable suspicion. None of what the Obama administration does to hamper AZ in this has any legal force whatsoever.

No, I simply said that I was convinced that it was unconstitutional and would be declared unconstitional when it was first announced. I said nothing about polling FR. What FR believed as a whole I cannot say, but I can say that I believed it was unconstitutional.

That's Kennedy's interpretation. Scalia writes a much better dissent desribing the issue at stake.

When AZ arrests someone under that circumstance, they turn the person over to the Feds for final disposition and determination just like they do with people caught under the 287 (g) program.

SCOTUS has already upheld the ability of the state of AZ to not only document, but enforce federal immigration law within the boundary of the state.

Not so. Where are you getting this nonsense from? SCOTUS did uphold AZ's E-Verify law, but that doesn't mean carte blanche authority to enforce all federal immigration laws. The 289 (g) program requires state and local police to be trained by ICE to enforce to a limited degree immigration law. Now, ICE has taken away AZ's 287 (g) authority. Under the Secure Communities program, which is not supposed to be voluntary, the police are supposed to forward the fingerprints of suspected and artested illegal aliens to DHS.

We also have the SAVE progam that enables state and local authorities to access ICE data bases to determine eligibility for welfare benefits. Law enforcement has that same ability under 287 (g).

The Obama administration can do whatever they want, but they cannot abrogate the decision of the supreme court of the united states.

They are effectively doing that by declaring war on AZ and depriving law enforcement of the needed tools to deal with an out of control illegal immigration problem that is bankrupting the state. Here is what Scalia had to say about Obama's "Dream Act:

The brief for the Government in this case asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the needto allocate scarce enforcement resources wisely.” Brief for United States 21. Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. DespiteCongress’s prescription that “the immigration laws of theUnited States should be enforced vigorously and uniformly,” IRCA §115, 100 Stat. 3384, Arizona asserts without contradiction and with supporting citations: “[I]n the last decade federal enforcement efforts havefocused primarily on areas in California and Texas, leaving Arizona’s border to suffer from comparativeneglect. The result has been the funneling of an increasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Nation’s illegal border crossings occurred in Arizona.” Brief for Petitioners 2–3 (footnote omitted).

Must Arizona’s ability to protect its borders yield to thereality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding?

But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of HomelandSecurity announced a program exempting from immi- gration enforcement some 1.4 million illegal immigrants under the age of 30.4 If an individual unlawfully presentin the United States

“• came to the United States under the age of sixteen;

“• has continuously resided in the United States for at least five years . . . ,

“• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran . . . ,

“• has not been convicted of a [serious crime]; and

“• is not above the age of thirty,”5 then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thingto do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act.7 Perhapsit is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

The Court opinion’s looming specter of inutterable horror—“[i]f §3 of the Arizona statute were valid, every Statecould give itself independent authority to prosecute fed- eral registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration lawsas written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at themercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?

Today’sjudgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.” 1Records of the Federal Convention 19 (M. Farrand ed.1911) (statement of Edmund Randolph). Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously guarded—as reflected in the innumerable proposals thatnever left Independence Hall. Now, imagine a provision—perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem,and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Arizona has moved to protect its sovereignty—not incontradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.

Scalia gets it; you don't.

Parts of the law are unconstitutional, not the entire law.

“Not so. Where are you getting this nonsense from?”

From the actual court decision? You are mistaken if you believe that the AZ law as passed is equivalent to the federal immigration law. It’s not, and that’s the bone of contention that you seem unwilling to address.

The AZ law is not a ‘carbon copy’ of the federal immigration law. The parts that were not found in the federal law were dismissed. The part that was, was upheld.

“The 289 (g) program requires state and local police to be trained by ICE to enforce to a limited degree immigration law. Now, ICE has taken away AZ’s 287 (g) authority.”

And what does that have to do with SCOTUS? Nothing. That has to do with Napolitano and the Obama administration.

“Under the Secure Communities program, which is not supposed to be voluntary, the police are supposed to forward the fingerprints of suspected and artested illegal aliens to DHS.”

Which is contrary to this SCOTUS ruling. Obama’s said he’s going to ‘selectively enforce the law’ which violates the equal protection clause. Arizona has standing now to sue the Feds for selective enforcement. Obama can’t simply ignore the cases it doesn’t want to deal with - it has to deal with any and all reports of illegal immigrants that are caught.

“They are effectively doing that by declaring war on AZ and depriving law enforcement of the needed tools to deal with an out of control illegal immigration problem that is bankrupting the state.”

Then that still doesn’t abrogate the right of the state to enforce federal immigration laws in AZ, as this decision handed down. AZ has a few legal remedies they ought to file them now and establish evidence of Obama’s stonewalling and refusal to enforce federal immigration laws.

“if §3 of the Arizona statute were valid, every Statecould give itself independent authority to prosecute federal registration violations,”

Scalia himself admits what I have continued to say concerning section 3.

“seems to me not so horrible and even less looming.”

Entirely his opinion and not based on fact.

“Scalia gets it; you don’t.”

Oh, I get Scalia’s dissent. He believes that it’s unimportant that the AZ law was not a carbon copy of the federal immigration laws. I see zero constructionist opinions.

Where is the opinion of Scalia that the states ought to have control of their own immigration based on the actual constitution? It’s a very weak dissent, and not up to his usual standards.

Looks like all we can do in AZ is check their papers, and then tell the feds so & so is living here without documentation.

So, do they have Constitutional rights, or are they subject to Mexican law?

Why not generate an "Illegal Alien Registry" an online listing of these criminals, so citizens can find out if any of the alien riff-raff is living in the vicinity.

Oh, I get Scalia’s dissent. He believes that it’s unimportant that the AZ law was not a carbon copy of the federal immigration laws.

A Border Control Agent called into Rush today, very angry with the SCOTUS decision, since he believes that AZ law is in fact a carbon copy of the federal immigration laws. He referenced Title 8 of the United States Code section 1304 small e, everybody go look it up, says that if you're here illegally and you're not a citizen, you have to carry proof of that with you. The law's already on the books.

My honest question, since I don't know, is what do you see as the parts of the AZ law that are not a "carbon copy" of the federal law since it seems the Border Control Agent thinks the pertinent part is directly from federal law.

Yes I believe you are very new here yet you lectured me about those of “us” who predicted the decision? Whatever.

Speak for yourself, not for others.

“My honest question, since I don’t know, is what do you see as the parts of the AZ law that are not a “carbon copy” of the federal law since it seems the Border Control Agent thinks the pertinent part is directly from federal law.”

Section three:

Criminal charges as opposed to civil charges, no access to appeals, and the big one - having the state try the charges and not the federal government.

Section four: the entirety.

Section five: the entirety.

Section six: Arizona trying charges against legal aliens for crimes committed in other states. Arizona’s determinations as to what offenses conducted by legal aliens constitute deportable offenses.

There’s quite a bit in the AZ law that goes well beyond that of the federal law. Calling it a carbon copy is quite a misnomer. It’s not, and nor was it intended to be a copy. It was intended to give Arizona the tools that they believed they needed to control their border.

From the actual court decision? You are mistaken if you believe that the AZ law as passed is equivalent to the federal immigration law. It’s not, and that’s the bone of contention that you seem unwilling to address.

The AZ law is not a ‘carbon copy’ of the federal immigration law. The parts that were not found in the federal law were dismissed. The part that was, was upheld.

You couldn't be more wrong. I know Kris Kobach who drafted the law and have discussed it with him. The issue involved here in preemption and the impact of the Supremacy clause in the Constitution. Nothing in the AZ law is against federal law. The states are either entitites with rights as specified in the 9th and 10th Amendments or they are just administrative units of the federal government.

The Federal goverment is limited to enumerated powers. The states have rights as well, including enforcing federal immigration law. The AZ law does not violate or conflict with any federal laws. In virtually every aspect, AZ mirrors federal law.

And what does that have to do with SCOTUS? Nothing. That has to do with Napolitano and the Obama administration.

It has a lot to do with SCOTUS and the rationale used to justify the majority decision if you have read it. States have a role in enforcing federal immigration law. Immigration is not the sole province of the federal government. The states bear most of the costs of illegal immigration whether it is education, law enforcement, or welfare. The federal government is not doing its job. The 287(g) program was supposed to leverage state, local, and federal law enforcment resources. There are only 7,000 ICE agents. We have 12 to 20 million illegal aliens in this country. There are an estimated 2 million criminal aliens.

Which is contrary to this SCOTUS ruling. Obama’s said he’s going to ‘selectively enforce the law’ which violates the equal protection clause. Arizona has standing now to sue the Feds for selective enforcement. Obama can’t simply ignore the cases it doesn’t want to deal with - it has to deal with any and all reports of illegal immigrants that are caught.

Obama has been violating federal law with impunity. He started a back door amnesty involving 300,000 immigration cases. This was before the Dream Act. In 2010 and 2011 the Border Patrol union issued unanimously a no-confidence edict against Morton and his deputy. Why?

"This action reflects the growing dissatisfaction and concern among ICE employees and Union leaders that Director John Morton and Assistant Director Phyllis Coven have abandoned the Agency's core mission of enforcing United States Immigration Laws and providing for public safety, and have instead directed their attention to campaigning for programs and policies related to amnesty and the creation of a special detention system for foreign nationals that exceeds the care and services provided to most United States citizens similarly incarcerated.

It is the desire of our union within ICE and our employees to publicly separate ourselves from the actions of Director Morton and Assistant Director Coven and publicly state that ICE officers and employees do not SUppOI1 Morton or Coven, or their misguided and reckless initiatives, which could ultimately put many in America at risk.

So who is going to hold Obama accountable? Certainly not Congress.

Scalia wrote a first class dissent. I suggest you read it in its entirety. What was weak was the majority opinion. It is frightening. Our Constitution is being shredded and we have idiots defending it. If the same thing happens with Obamacare, you can kiss the Constitution good-bye. There is nothing the federal government can't do. There is no Rule of Law.

“You couldn’t be more wrong. I know Kris Kobach who drafted the law and have discussed it with him. The issue involved here in preemption and the impact of the Supremacy clause in the Constitution. Nothing in the AZ law is against federal law. The states are either entitites with rights as specified in the 9th and 10th Amendments or they are just administrative units of the federal government.”

Couple things here.

If Kris Kobach was so careful, why’s he getting hit up on ticky tack stuff like criminal charges vs civil? Was he not aware of the present federal immigration laws when he drafted the legislation? Or did he just not care?

Two, 10th applies to powers not enumerated of the federal government. Immigration has always been the federal purview and the constitution provides them with the power to regulate immigration into America.

The states have never had the authority to control immigration into their state. Not before the Civil war, nor after. It has always been a federal concern.

“The AZ law does not violate or conflict with any federal laws.”

Yes it does. Which is why most of this particular law was struck down. All the parts in conflict with federal law are gone now.

“It has a lot to do with SCOTUS and the rationale used to justify the majority decision if you have read it.”

SCOTUS isn’t responsible for Napolitano. You’re conflating two different things here.

“States have a role in enforcing federal immigration law.”

And their role is to enforce the federal immigration law as it stands, not to make it more stringent and enforce their own law.

“The states bear most of the costs of illegal immigration whether it is education, law enforcement, or welfare.”

Yes, and I don’t see a constitutional requirement for either state control of education or welfare. If a state is finding welfare and education burdonsome, then they ought to revert to constitutional rather than unconstitutional governance.

“The federal government is not doing its job.”

Agreed, wholeheartedly. Now, the onus is on the federal government, since this ruling has established that it is their reponsibility, not the states. If Obama fails to enforce federal law, then that is a proper rationale for impeachment.

“The 287(g) program was supposed to leverage state, local, and federal law enforcment resources. There are only 7,000 ICE agents. We have 12 to 20 million illegal aliens in this country. There are an estimated 2 million criminal aliens.”

I understand. Obama figures he can win this by cutting AZ off of the resources for which they are entitled to enforce the laws. I guess my question is what is AZ going to do about it? Are they going to sit and twiddle their thumbs until Obama leaves? Or are they going to continue to fight?

“Obama has been violating federal law with impunity. He started a back door amnesty involving 300,000 immigration cases. This was before the Dream Act. In 2010 and 2011 the Border Patrol union issued unanimously a no-confidence edict against Morton and his deputy. Why?”

Because he doesn’t believe in the constitution and believes that he can destroy the American republic. He’s succeeding pretty well so far. He’s managed to earn a successful re-election, and in all likelihood, some modified form of Obamacare.

The thing everyone should have been concerned about was back last February where we were choosing the man who was supposed to fight Obama. Romney is the pick, and we all know he’s soft on immigration enforcement, supported Obamacare, etc.

I don’t really see the point in either candidate to protect the freedoms of Americans.

“So who is going to hold Obama accountable? Certainly not Congress.”

That’s the job of congress, is it not? Checks and balances.

“Scalia wrote a first class dissent.”

I’ve seen him write some really first class ones. This was not one of them. Lawrence vs Texas was prescient, you read that today and you get a sense that there were 11 men on the bench and Scalia who saw what was really going on.

edit 8 of 9.

Get off it pal, I used a common expression that didn’t include you. On the other hand you told me not to speak for “Us”. Who the hell is “us”?

You said, “we believed in X”, well sir, speak for yourself because I have never believed X to be true.

Obviously you are a jackass or a wise ass whichever it is trouble me no more.