Help Save Maryland – Keep the Faith on Arizona!

Subject: Help Save Maryland – Keep the Faith on Arizona!

EDITORIAL: Judicial activism against Arizona

Judge bucks precedent to keep immigration floodgates open

By THE WASHINGTON TIMES – The Washington Times

7:25 p.m., Wednesday, July 28, 2010

U.S. District Judge Susan R. Bolton miscalculated when she blocked critical aspects of Arizona’s immigration enforcement law. Her decision will further intensify efforts by states to find solutions to problems posed by the Obama administration‘s unwillingness to take command of this pressing issue.

The decision is certain to inflame the illegal immigration debate, and it doesn’t bode well for the president or his party. According to a recent Quinnipiac poll, 55 percent of Americans back the Arizona law and 58 percent disapprove of Obama immigration policies. A Pew Research Center poll shows 63 percent think immigration reform is very important, and only 36 percent back the Justice Department‘s suit against Arizona. The presumed political benefits of the administration‘s stance are not materializing. According to Gallup, President Obama’s approval ratings among Hispanics have dropped from 68 percent in April to 55 percent in the latest weekly poll.

Judge Bolton ruled, "It is not in the public interest for Arizona to enforce preempted laws," but this is a deceptive statement. If Arizona had passed a law that defined U.S. citizenship, as Attorney General Eric H. Holder Jr. has disingenuously suggested, federal supremacy would apply. However, the case at hand doesn’t deal with pre-emptive law but with parallel enforcement. Arizona’s law does not define who has broken immigration laws; it deals with what to do when police apprehend these criminals.

The relevant precedent is in Gonzales v. City of Peoria (1983), in which the U.S. Court of Appeals for the 9th Circuit – which includes Arizona – held that "although the regulation of immigration is unquestionably an exclusive federal power, it is clear that this power does not preempt every state activity affecting aliens." The court stated flatly that "federal law does not preclude local enforcement of the criminal provisions" of federal immigration law, and that "concurrent enforcement is authorized" when they "do not impair federal regulatory interests."

In the same case, the court noted that federal injunctions against state law enforcement actions should be undertaken only in the most extreme circumstances and should generally exercise restraint "based on principles of equity, comity and federalism" and "consistent with these principles, federal courts may not intervene in state enforcement activities absent extraordinary circumstances that threaten immediate and irreparable injury." The notion that the federal government would be immediately and irreparably harmed by Arizona identifying previously detained illegals is unsustainable.

Rep. Luis V. Gutierrez, Illinois Democrat, hailed Judge Bolton‘s decision, saying, "Arresting people based on their appearance and holding them until you can investigate their immigration status is patently un-American and unconstitutional." This is a willful misrepresentation of the Arizona law but typical of the race-baiting politics of the left.

In 2005, the Supreme Court ruled in Muehler v. Mena that police could question suspects detained for other crimes about their immigration status even if they had no reason to believe they were illegals. In this, the court specifically overturned a ruling by the 9th Circuit Court that such questioning constituted a violation of the Fourth Amendment. The high court rejected as a "faulty" premise that police even needed reasonable suspicion to ask questions about immigration status, and countered citing previous precedent that "even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual." Under the logic in Mena, Arizona doesn’t even need a special law for state and local police to make inquiries regarding immigration status.

Judge Bolton‘s judicial activism is out of step with the law, out of step with politics and out of step with the good of the country.



By Attorney Jonathan Emord
Author of "The Rise of Tyranny"
July 29, 2010

Judge Bolton’s Decision Invalidating Parts of New Arizona Immigration Law Should Be Overturned

The central premise of Judge Bolton’s decision enjoining four parts of Arizona’s immigration law rests on the faulty premise that the state law violates the doctrine of federal pre-emption. The law, however, is in aid of federal immigration law and neither obstructs nor increases penalties for immigration law violations. Moreover, it does not attempt to alter the standards used by the federal government in determining who is legally resident in this country. Indeed, the Arizona law is in aid of domestic law affected by illegals in Arizona who are contributing to drug and human trafficking and other serious crimes within the state.

The Judge held the following four parts of the statute unlawful encroachments on federal immigration law, based on the doctrine of pre-emption:

(1) the requirement that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained, or arrested on other grounds if there is a reasonable suspicion that the person is unlawfully present in the U.S. and that a person arrested be required to show proof of lawful immigration status prior to being released (Part of Section 2 of SB 1070);

(2) the creation of a new state crime in support of federal law that requires application for and carriage of alien registration papers (Section 3 of SB 1070);

(3) the creation of a new state crime in support of federal law that prohibits an unauthorized alien from soliciting, applying for, or performing work (Part of Section 5 of SB 1070); and

(4) the authorization of warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States under federal immigration law (Section 6 of SB 1070).

The Judge operates on two assumptions, that the Arizona law (1) will impose substantial burdens on lawful immigrants, exposing them to inquisitorial practices and police surveillance and (2) will impose a significant increase in costs on federal authorities contacted concerning suspected illegals detained, thus distracting the federal government from pursuing other immigration law enforcement priorities. She had no specific proof in the record to support either of these hypothetical propositions and yet throughout the decision presumes them to be true.

The suit brought by the Obama Administration against the law is a pre-enforcement or facial challenge. Because the challenge occurs before the law is implemented, the Supreme Court has required that “the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). In particular, the Court is not to base its decision on hypothetical or presumed cases.

We certainly can conceive of instances in which each of the four provisions would be validly enforced and, so, the pre-enforcement challenge standard has not been satisfied. It is counterintuitive to assume that a person detained on probable cause of the commission of a crime, like, for example, murder, who is found not to be in this country lawfully would through his arrest either unduly burden lawful immigrants or impose undue burdens on federal authorities, particularly because just such a person is removable from this country under federal law. Rather, legal immigrants, like all Americans, are best protected when such individuals are prosecuted.

It is counterintuitive to assume that a law focused on enforcing the federal requirement that alien residents file applications for, and carry proof of, alien registration is somehow burdensome to lawful immigrants or to federal law enforcers who are supposed to be implementing that very legal requirement. Indeed, we have to stretch our imaginations in a mighty way to presume that such a law would be wrongly applied to a legal immigrant or would generate such an enormous quantity of referrals to the feds that they would be overwhelmed by them (particularly because the feds now routinely ignore state referrals on all manner of illegal immigration issues; there is nothing requiring them to take the new referrals any more seriously).

It is counterintuitive to assume that a state law that supports federal law prohibiting employment of illegal aliens would harm lawful immigrants or burden federal law enforcers. The state law on its face aims at illegal aliens, thus only a wrongful application of it would reach a lawful immigrant. Moreover, the feds are burdened only if they choose to implement federal law (but that is their pre-existing duty and should not be considered cognizable as a new or added burden).

It is counterintuitive also to assume that a law that makes it a crime to commit an offense that makes a person removable from the United States under federal immigration law either burdens lawful immigrants or federal law enforcers. It is in aid of federal law enforcement, and the feds have the final say so under this state law concerning whether the person is removable. It is entirely within federal discretion to deem a person not removable, or to ignore the state request for a determination.

The decision tacitly presumes that states do not presently aid federal law enforcement through referrals of suspected illegal immigrants and in support of federal government actions against illegal aliens involved in drug trafficking, human trafficking, or smuggling of illegal goods. They do, every day. In this environment, the Arizona law is neither new nor exceptionally burdensome. It certainly does not obstruct federal immigration law.

Finally, nothing in the law authorizes or condones racial profiling or discrimination against legal immigrants. This new law is comparable to many others that aid federal law enforcement, only now due to political pressure from President Obama has the Department of Justice chosen to single out the Arizona law for strained arguments that it obstructs or modifies federal immigration law. It was a mistake to buy into those arguments without either a basis in fact or logic to support them and with ample examples of enforcement that would not be unlawful.

In the end, whether this law exists or not, the ultimate test of discriminatory enforcement of the law lies not in a facial challenge but in proof in an individual case that police have abused their discretion and violated an individual’s rights. Undoubtedly there will be, as there have been in the past, instances where local police will violate the rights of the innocent, abuse them, and do so based on motives that are reprehensible in any civilized society. The law must punish such police severely and provide ways to compensate victims for the harms, recognizing that compensation can never restore fully the respect for autonomy and the dignity they deserve. Nevertheless, we cannot presume in the middle of a crisis where innocent victims of crimes spawn by alien drug traffickers and murderers have become daily headlines that law enforcement will violate the rights of innocents in their pursuit of those who threaten lives and property.

Faced with a monumental emergency, Arizona has taken prudent steps to equip its law enforcement officers with authority to help stem the tide of illegal immigration into the state. It has done so where that illegal immigration involves additional illegal acts—the area of greatest threat to the lawful inhabitants of Arizona, legal immigrants and people born in the United States. By enjoining four key provisions of the Arizona law, Judge Bolton has hampered reasonable efforts to protect the lawful residents of Arizona from crime and abuse.

We should hope that on appeal the Ninth Circuit overturns this decision. If it does not, however, you can be sure that Governor Jan Brewer will push for new laws to enable state law enforcement to protect Arizona’s citizens against crimes spawn by illegal immigrants and Maricopa County Sheriff Joe Arpaio will continue his efforts to stem the tide of illegal immigration.

© 2010 Jonathan W. Emord – All Rights Reserved


"Comprehensive Immigration Reform is a classic example of the cure being far worse than the disease!

Any politician who supports Comprehensive Immigration Reform is working against the security of our nation and the well being of our citizens.

Any politician who refuses to work to secure our borders and create an immigration system that has integrity is either corrupt or too dumb to keep his (her) job.

Any politician, irrespective of party affiliation who favors Comprehensive Immigration Reform should be shown the door at the next election!" MC


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