Posted by Euroranger on July 29, 2010
I’ve been debating with myself about whether I should post my thoughts on the whole Arizona immigration law controversy. Since the governor there signed the bill into law a couple of months back, pretty much everything that has been worth saying (and a whole assload of things not worth saying) has been said with the exception of the things I’m about to mention in regards to the ruling yesterday by U.S. District Judge Susan Bolton that barred enforcement of 4 of the law’s sections. Oh, I’m sure someone somewhere will have already said what I’m about to say but whoever it is that did so didn’t catch MY attention…and hey, isn’t that the standard we all judge newsworthiness by? If it isn’t, shouldn’t it be? Anyway, I’m uniquely qualified to render an opinion on this issue as I’m:
- Not from Arizona nor have ever visited Arizona
- Can find Arizona on a map, however
- Am not Hispanic
- Am a gringo
- Have a fully functional medulla oblongata
- Can form opinions easily and usually do so with the assistance of facts
It’s solely that last point, by the way, that elevates my qualifications above roughly half of those who believe they hold valid, reasoned opinions about this law. Those people comprise a group that we’ll call, for the ease of further identification in this post, “idiots”, “retards”, or “just plain fucking wrong”. Anytime you see me refer to anyone with any of those three sobriquets you can rest assured I’m referring to someone I disagree with. I’m just helpful that way. The other way I’m helpful is to warn you: the remainder of this post is long, chock full of facts and presents an entirely possible end game scenario that pretty much nobody has described yet. You will be led through a thoughtful progression of facts and will arrive at a conclusion you may not like if you’re on the Right and hate judicial activism and will definitely hate if you’re on the Left and think that the Arizona law is a bad thing. So, with such warnings in mind, let’s begin.
Let’s start with the easy part: I support Arizona SB 1070. My reasons for doing so are easily enumerated and follow a progression of logic that, I feel, makes any argument to the contrary unsupportable and based on emotion and not fact. The salient facts are as follows:
- Arizona is a state where one of its borders forms an external border of the United States of America
- That border’s integrity and sovereign maintenance is, by law and constitutional stipulation, the duty and responsibility of several federal agencies
- The process of legal immigration to the United States, its control and oversight is also, by law and constitutional stipulation, the duty and responsibility of the federal government
- That a circumstance of unmanaged, unregulated, illegal immigration to the United States exists and occurs and has existed and occurred for an extended period of time along the portion of the external United States border that coincidentally exists in the state of Arizona
- The volume and makeup of the illegal immigrants has placed an undue burden on the taxpayers and legal citizens of the state of Arizona including but not limited to the excessive use of social services, law enforcement, and increase in crime by such illegal immigrants
Those are all facts whose veracity cannot be debated. This will immediately exclude from the debate around 1/4 of those who oppose the law because they’ll want to challenge some of those facts. We can all safely label these people as “retards” and should institute a policy of mandatory sterilization of said “retards” so as to enhance the overall IQ of future generations of Americans. Having disposed of those folk, let’s address the other 3/4 of the opponents of this law.
These folks are a little trickier…but really only inasmuch as they expect arguments based on emotion and fear to actually trump arguments based on fact and experience. It’s like arguing fairy tales versus documented history. Tooth Fairy vs. George Washington. Easter Bunny vs. Thomas Edison. Fantasy vs. Reality, essentially. These are the people I’ll be tagging as “idiots” and whose arguments are “just plain fucking wrong”. Their primary opposition to the law is that it will lead to racial profiling. Racial profiling, just so we’re all working with the same idea is probably best defined as “[a]ny police-initiated action that relies on the race, ethnicity, or national origin rather than the behavior of an individual or information that leads the police to a particular individual who has been identified as being, or having been, engaged in criminal activity” (US DOJ). This, in fact, is what the Obama administration is using as one of the informal arguments against the law: that it will lead to racial profiling. The problem with that approach is that it is an emotional response butting up against the actual language of the statute which reads as such:
FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON.
In other words, their concern is that Arizona law enforcement will use the race of the individual to determine whether they’re going to initiate police action whereas the actual TEXT OF THE FUCKING LAW makes clear that the lawful contact has to be made first THEN the LEO (law enforcement officer) needs to possess reasonable suspicion as to the person’s legal status in the United States. The federal argument is that B will preceed A whereas the law they’re arguing against makes it clear that A MUST PRECEED B. Please note the use of the words “lawful contact” in the proposed Arizona law. Do you know why that’s in there? It’s there because racial profiling is not explicitly illegal. Yeah, quite a few folks on the Left believe that racial profiling isn’t allowed because it’s against the law…except that it’s not. The only place that racial profiling runs afoul of anything approaching a law is in the Fourth Amendment of the U.S. Constitution (which guarantees the right to be safe from unreasonable search and seizure without probable cause) and the Fourteenth Amendment (which requires that all citizens be treated equally under the law).
Just a quick side note here: while there are a multitude of fucking idiots on the Left who think racial profiling is explicitly illegal, there are an equal number of fucking idiots on the Right who believe the Constitution applies only to American citizens and that illegal aliens in the U.S. don’t get the advantage of protections enshrined in the United States Constitution. Guess what dumbasses, it applies to them too and to everyone on soil claimed by the United States as a state, territory, protectorate, inland waterway, offshore waters out to the international limit and any other places administered by the United States government (like embassies, consulates, military bases and so on). Just so we’re clear, I hate fucking idiots on both sides regardless of who they vote for.
So, racial profiling is a red herring argument for the feds. It’s implicitly and explicitly disallowed by SB 1070. If an Arizona cop DOES use racial profiling to pull over a truck carrying a Hispanic fellow and proceeds to look for a legitimate reason for why he was stopped, that Hispanic fellow has the exact same recourse to address this as all the rest of us do: he can sue the racist idiot cop and his department in court on the basis of violating his civil rights. The Arizona law is written explicitly to not provide the arresting officer even the possibility of a defense of hiding behind vague wording in the law. They go out of their way to address the racial profiling argument and neuter it. This fact does not sway the fucking idiots on the Left though…and that’s because they believe in the fantasy (the police will be allowed to racially profile suspects with this law) over the reality (that the law explicitly describes the order of events and describes the mandatory first step as being “lawful contact”).
The second issue the federal government is using to oppose the law is that Arizona’s law preempts the federal responsibility to regulate immigration:
The United States argues principally that the power to regulate immigration is vested exclusively in the federal government, and that the provisions of S.B. 1070 are therefore preempted by federal law. (United States of America v. State of Arizona)
This is actually a legitimate claim and, despite my being fully supportive of SB 1070, I cannot argue against this line of reasoning. The legal authority to regulate immigration in the United States is, has always been and has been fully supported by the courts to reside with the United States government and not the individual states. Specifically, the four parts of the Arizona law that likely infringe the most on this precedent are:
- the requirement that an Arizona LEO try and ascertain the immigration status of those he has a reasonable suspicion of being in the country illegally during a “lawful contact”
- making it a crime for failing to apply for or carry alien registration papers
- making it a crime for an illegal alien to work or solicit work
- authorizing the warrantless arrest of a person where there is probable cause to believe the person is in the country illegally
I generally identify myself as being slightly right of center (very slightly) but even I can see and fully agree with the ruling yesterday in the United States v. Arizona that those 4 sections of SB 1070 are questionable in their legality where the division of responsibilities lie between states and the federal government. I’m sorry but to me Arizona flat out loses on items 2 and 4. Those are clearly the province of federal agencies. However, I’m very confident that this ruling is NOT what all the celebrators an the Left really wanted to happen IF they had two active brain cells to rub together…and I’ll tell you why. I’ll explain how it is that this ruling, which all the SB 1070 opponents are cheering for today, will eventually be their ultimate bane. Pay attention: history and logic follow.
For starters I believe the recent judgment on items 1 and 3 will be overturned and for very good reason: precedents already exist to allow state authorities to enforce federal laws. Disagree with me on that? Okay, how about the federal Controlled Substances Act? Local cops bust people for drugs all the live long day and the laws they’re enforcing originate from the Controlled Substances Act. States have enacted laws to support that federal law and so the state LEO’s enforce the state laws that are supporting the federal law. Arizona’s SB 1070 law mimics the federal law in that you have to be legal in this country in order to work. You need a Social Security number and a work visa or proof of citizenship in order to work in this country. Arizona supports those laws with these provisions of SB 1070 in much the same way state narcotics laws adhere to the federal Controlled Substances Act. Legal efforts have been made before by drug defendants with regards to the legality of state drug laws and those have been rightfully rejected by the courts. In much the same way, I suspect Arizona will make the argument that their law mimics and supports the federal immigration laws and that state LEOs will be within the law and legal precedents in enforcing SB 1070 wherein they determine whether an immigration offense has been committed or they find someone engaged in employment or trying to be hired who is not legally allowed to do so.
However, the real effect of this law and the judge’s ruling yesterday is not in what got ruled on…it’s that the filing and appeal process has started. What that means is that this law and the fight surrounding it has now started on its way to the Supreme Court and will not be concluded until that court hears the arguments and makes its decision. This presents several new factors that the average detractor of this law who is likely celebrating today most likely is ignorant of. The first and most obvious (even to the Left) is that the current ideological makeup of the court is 4 conservatives, 3 liberals and 1 swing vote (with the likely incoming Kagan being a 4th liberal judge). The swing judge is Anthony Kennedy who tends to support states rights but he has one interesting new habit: he tends to consider other nations’ and international law as an aid to interpreting the Constitution. This creates an interesting conundrum for the Left. The government of Mexico has decided to involve itself via amicus briefs and diplomatic communications in this internal United States legal tussle. The irony is that the immigration laws of Mexico are much more severe in their regulation and application than the much laxer and less enforced laws of the United States, which oddly enough, Mexico is protesting. This will become an issue because of the second interesting factor.
This case, due to the parties involved (the federal government and a state), presents the Supreme Court with a rare “original jurisdiction” case. Normally, the Supreme Court acts as the ultimate appellate court. That is, they receive the case, case materials, judgments and testimony from previously heard and decided cases, take no new case material and confine their judgment to the consideration of whether the previous decisions pass constitutional muster. Not so in this case. This case will allow the Supreme Court to look at all surrounding issues and not just those contained in the appeal package from the previous court’s findings. This provides the court with the opportunity to decide the case on a basis of much wider consideration than is normally present in its normal appellate jurisdiction. This is a crucial point to recognize because it gives the individual justices great latitude in their considerations which is why it’s important to note the current ideological composition of the court as well as that of the likely swing justice(s)…and the precedent that the SCOTUS has already set in a similar case.
That similar case is called Swann v. Charlotte-Mecklenburg Board of Education. Don’t know that one or why it would apply here? Don’t worry, you’re not alone. In short summary it was a case dealing with the busing of students to promote integration in public schools. The fine details of the case aren’t important here but what is important is that the case involved the federal government arguing that the states must comply with constitutional requirements and that excuses and arguments to the contrary don’t make a defense. In that case, the court imposed busing on the defendant because the court found that there was a constitutional mandate to act and that the agency ultimately responsible was excusing or outright refusing to act. In that case, the federal government won because it was the state that was refusing to act but the important consideration is that the court IMPOSED a solution on the deficient party. How does that affect this case? Easy. In this case, the constitutional mandate to act is enshrined in a couple of places. One of them is Article IV, Clause 2 entitled “Protection from invasion and domestic violence” and it reads: “[…] and [The United States] shall protect each of them [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” One of the more damning things the court decision yesterday did was supply the following wording right in its opening summary: “Against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns, the Arizona Legislature enacted a set of statutes and statutory amendments in the form of Senate Bill 1070“. That’s what you call a judicial finding and because the Obama administration won the hearing they won’t be appealing that wording. Thus, the wording will remain as a point of fact. That goes a long way to helping Arizona establish a possible argument that the federal government is failing in their duties in Article IV, Clause 2 of the constitution. Even if Arizona doesn’t bring up this argument, because the case is original jurisdiction of the SCOTUS any justice there can bring it up as a valid point to consider.
Since, if the court finds that the duties that the federal government is charged with are not being discharged (a la Swann), they can use the case of United States v. Brignoni-Ponce as the justification of their remedy in combination with the fact that local LEOs often are already used to help enforce federal laws. What is Brignoni-Ponce you ask? Only “a decision by the United States Supreme Court, which held that the Fourth Amendment to the United States Constitution does allow a roving patrol of the United States Border Patrol to stop a vehicle near the United States–Mexico border and question its occupants about their citizenship and immigration status, when suspicion that the occupants appear to be of Mexican ancestry, combined with other articulable facts”. In other words: the exact same fucking thing that SB 1070 pretty much is about. All the court needs to do is to determine that the responsible parties (the federal agencies responsible for border security and immigration) aren’t doing the job they’re supposed to be doing (per Brignoni-Ponce) and that their failure allows an outside remedy to be applied to address the situation (per Swann). They could find that SB 1070 is an appropriate remedy and uphold that law. They could FORCE the federal government to do something else to ensure they DO enforce the immigration and border security laws of the United States. Or they could come up with some combination of the two that nobody (especially the Left) has yet dreamed of.
This is why this case could turn out to be such a disaster for the Left in this country. It allows the case to now get to the Supreme Court which is decidedly conservative and which has at its disposal all the legal precedent it needs to either uphold Arizona’s law or impose their own solution. Obama’s lawsuit has opened the door to allowing an unelected body to dictate policy entirely because the federal government has been deficient and apathetic about enforcing federal laws and the result of that has been a direct injury to the state of Arizona (and every other state that has an illegal immigrant problem). That means that the SCOTUS could also find that the federal government is liable and could order the government to pay damages to those states that could prove the federal government’s ineptitude or indifference led to their damages. In short, the Left, rather than actually being logical citizens and swallowing their personal feelings about the poor immigrants and complying with existent federal laws decided instead to go with feelings over duty and in the end may have opened the door to allow the decidedly conservative Supreme Court to make a landmark decision that could dictate immigration policy in this country for generations.
Not saying this is what will happen but it could…and I’m all for it. The Left in this country has used judicial activism for decades to get their way and there is a real potential here for them to reap what they’ve been sowing for a long time now.
My name is Euroranger and I approved this message.