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Wednesday, July 28, 2010

Helplessness and Anarchy

The result of the injunction granted today by the federal court in Arizona preventing the key provisions of S.B. 1070 from taking effect is not just the maintenance of the status quo.

At a legal level, it is true that nothing has changed. S.B. 1070 never took effect, so no law was lost.

At a more realistic level, everything has changed.

States have been left helpless to deal with the anarchy created by the failure of the federal government to enforce border security. Whereas yesterday it was unclear how far states (such as Rhode Island) could go, today states are powerless.

The inability of a state to implement a policy of checking the immigration status even of people already under arrest for some other crime is remarkable.

While I cannot blame the Judge for striking some provisions of S.B. 1070 (particularly those creating independent criminal sanctions), the ruling as to checking the status of people already under arrest is mind-numbing.

As a reader to my prior post points out, states already routinely run searches for a variety of statuses, including outstanding warrants, child support orders, and non-immigration identity checks. Each of these checks potentially could delay release of an innocent person or burden some federal agency.

The Judge's reasoning, particularly that the status check provision violated the 4th Amendment even as to persons already under arrest, applies just as easily to these other status checks.

With a federal government which refuses to take action at the border until there is a deal on "comprehensive" immigration reform, meaning rewarding lawbreakers with a path to citizenship, this decision will insure a sense of anarchy. The law breakers have been emboldened today, for sure.

As it stands this afternoon, it is perfectly rational for someone faced with the choice of obeying the immigration laws or not, to choose not to do so. The choice of lawlessness makes a lot more sense than spending years winding through the byzantine legal immigration system, because the end result will be the same but lawlessness gets you here more quickly.

When the law and the federal government reward lawlessness, something is very wrong.

Update 7-29-2010: As others have noted, the Judge enjoined the checking of status of arrestees by reading the second sentence of Section 2(B) ("Any person who is arrested shall have the person's immigration status determined before the person is arrested") as completely independent of the first sentence, which requires reasonable suspicion prior to a status check. That reading by the Judge plainly is wrong, since the first sentence specifically references the requirement of reasonable suspicion after "any lawful stop, detention or arrest...." (emphasis mine) The language of the statute fully supported the state's position, which the judge rejected, that the state only intended to check the status of arrestees as to whom there was reasonable suspicion, and who did not have any of the accepted forms of identification. Given the Judge's rulings on preemption and the 4th Amendment, I'm not sure the result would have been any different had she read the statute correctly.

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  1. "When the law and the federal government reward lawlessness, something is very wrong."

    This needs to be taken to the next level. I assume this judgment can be appealed. However, appealing doesn't stop the temporary injunction taking effect, does it? The 9th Circuit is notoriously liberal, so the SCOTUS is the only hope. That is, unless the upcoming trial over-rules this judge's decision in the meantime. What is the likelihood of that happening?

  2. Despairing. Each day brings some fresh hell from this administration. I've never lived through anything like it.

  3. "As it stands this afternoon, it is perfectly rational for someone faced with the choice of obeying the immigration laws or not, to choose not to do so."

    That, of course, is the purpose. The law is not intended to apply to those the Elites favor, only to those of us who would oppose their tyranny.

  4. Consider this..the nub of her fercocked opinion is not preemption, but that the Az law would create too much work for the feds.
    On the other hand federal mandates which break state budgets are perfectly okay.

    I do not see the voters continuing to allow the feds to avoid their obligations and I think anyone who hopes to win Congressional election better take note of the outrage this non enforcement by the feds and intervention to preclude state action has caused.

  5. Another win for the Ruling Class.

  6. This will not help the Democrats avoid Armageddon in November. It requires law to avoid anarchy just as the laws of physics allow us to reverse entropy. The Daily Beast is crowing about the injunction against requiring aliens to carry papers even though that is existing federal law.

  7. "Despairing. Each day brings some fresh hell from this administration. I've never lived through anything like it." rrpjr

    This is not the time to despair, to get tired or give up!!! None of us have had to do what our forefathers did, or to stand against such a crafty enemy. So?! We must stand, "to give our lives, or fortunes and our sacred honor" if necessary!

    Freedom is not free, and we need to peacefully and diligently stand against this administration and all leftists trying taking down our country. To quote Churchill, "Never give in! NEVER give in!!" Truth and right must prevail - to despair is to give these leftists the victory! Do NOT allow the small defeats to wear you down. Stand!

  8. " so the SCOTUS is the only hope."

    I just don't believe that is true. There is a nation wide election coming in Nov. Every single Democrat could be voted out of the US house. Every Democrat Senator who is up for election could be voted out. Illegal immigration could be the fuse that completely stops the Democrats and their plans to turn this country in to a communist hellhole. We (the voters) just need to do it.

  9. And if all else fails, Arizona should just secede from the Union. When the federal compact has been broken, Arizona should not feel obligated to remain in the contract.

  10. Doesn't this mean that if someone, anyone is arrested, that police are prevented from checking anyone's status, if they are wanted on another charge, a parolee, on probation, or other status that might suggest they are breaking another law? And if indeed it does not, then isn't there a non-equal application of the laws?

  11. Since the injunction is only blocking provisions of S.B. 1070 from going into effect, what is there to stop Arizona from simply calling a special session to amend the existing law, or pass a new one, to address Judge Bolton's concerns?

    It seems that Judge Bolton's statutory interpretation of the law (from the "Arizona Law Upheld in Part- Order and Analysis..." previous post) was clearly not the one intended by the Arizona legislature. I don't see why they couldn't go back and clarify, and remove all doubt as to how the law is supposed to be read (they've already amended the law to address certain concerns before); if it was a new law it could be ready to go into effect unless challenged.

  12. How many Democrat Senators have to lose the next election before the rest of them will consider Obama's impeachment on failure to uphold the laws?

    If the Republicans sweep all 15 that are in play, it just might happen.

  13. Peacefully?

    "The gentlemen cry Peace! Peace! but there is no peace."

  14. Grr, stupid thing lost my post.

    Anyway - where is the 10th Amendment on this?? I usually poo-poo the idea that the Obama administration is deliberately trying to destroy the country. I just think they're misguided, stupid, and incompetent. However, things like this make me reconsider. The federal government refuses to, or is too inept to, do its job, then ties the hands of the state to protect its citizenry.

    Imagine the outcry if the Bush administration had prevented relief organizations from aiding victims of Katrina, on the grounds that they would impede the federal relief effort? We'd still be hearing about it. Isn't in the same principle?

  15. So, a Clinton judge has announced her opinion.

    Bow let her try to enforce it...

  16. All of you thinking that relief will come from November's elections or SCOTUS or from somewhere, underestimate how many people and interests are aligned in favcor of the judge's ruling, flimsy as it is. Remember Romer v. Evans....

  17. Just a question fro one of the Country Class.
    How does Article 1, Section 10 figure in this ruling?

    "No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

  18. "The Gentlemen cry Peace! Peace! But There is no peace!"

    Just one lousy Peace Prize for the anointed one as he avoids enforcement of any law/right/etc he does not favor.

    In my opinion we are not yet charged enough with the need to cut deep and wide this November. Too many are just "accepting" the usual as fact.

    It ain't over til the fat lady (Tea Party) sings!

  19. Something has become decoupled in the agreement between governed and the governing. This is analogous to a local government not enforcing burglary laws, and not showing up when a break in is reported. So your neighborhood goes out, arms itself and forms a neighborhood watch. The local government responds by suing you...

    Nothing good can happen in that scenario. What will result is that the neighborhood (the people) will find any way possible (including extra-legal) to defend themselves.

  20. There is a necessary "consent of the governed". I seriously doubt the Democrats realize the political pressure against themselves that is building.

    Sure, we made snide remarks about Treasury Sec. Geithner and other tax cheats; but their unconstitutional abuse of power in not allowing Arizona to defend herself in the face of foreign invasion may be about to explode...

    When they at every level reward criminals--felons, in fact--and punish/disenfranchise law-abiding citizens, can the reckoning be far off?

  21. It seems to me that an LEO is still free to check on someone's immigration status if they have reasonable suspicion that they might be in the country illegally. All this does - and I think the judge is wrong on this, mind you - is to prevent the State from requiring it. Am I right?

  22. I hope AZ wins. I am thrilled with their progress to date of making a climate that is not hospitable to law breakers. This is evidenced by the exodus of illegals.

  23. Doesn't Judge Bolton's injunction conflict with Muehler v. Mena 544 U.S. 93 (2005)?

    In this unanimous Supreme Court decision, the Court held that a LEO may inquire as to a person's immigration status; not even reasonable suspicion is required (as opposed to Arizona SB. 1070, which does require reasonable suspicion.)

  24. Steve Rosenbach, interesting point in bringing up that unanimous decision, but the police did have a search warrant in that case, so arguably it could be distinguished- although I could see a lot of the safety concerns being equally important in the scenarios Arizona police frequently are forced to handle.

    I do really wonder if Judge Bolton's concern about the detention times violating 4th Amendment Rights is effectively moot, though. In addition to the standard status checks that already take place (mentioned in the post), Arizona Sheriff Joe Arpaio made the logical point that the suspects are going to already be booked for other potential crimes, so there should be no cause for concern in running immigration status checks during such time.

    (And if the administration claims to be "overburdened" by referrals from Arizona, as the judge wrote...well, they certainly have no problem creating new, massive bureaucracies when it's something they desire- Obamacare, FinReg, etc...)

  25. The unreality of the situation is remarkable sir.

    The simple fact of the matter is that the President and the media are manufacturing a racist argument and organizing a demonstrations against a simple background check.

    They are misinforming a substantial percentage of Americans, and more pointedly Mexican immigrants, for political gain. The USA is disassembling. It is no longer possible to have rational discussions.

    Without securing the border, immigration reform will never work. In fact, the border issue has only a slight connection to immigration at all.

  26. By the way, thanks for your coverage.
    Seems like most of the right-blogosphere is linking to your posts.

  27. "Those who make peaceful revolution impossible will make violent revolution inevitable." -- John F. Kennedy

    If the Federal Government refuses to do its job in re border security -- and it does not permit a state to take matters into its own hands -- then what's the logical next step?

    Vigilantes, anyone?

    (I believe another aspect of the law -- which might have gone into effect today, I'm not sure -- allows all legal Arizona gun-carriers to carry concealed.)

    I might add that policemen often find a way of doing their duty, even when regulations try to tie their hands.

    If the people of Arizona really want this, they'll find a way to get it.

    Daniel in Brookline

  28. Perhaps the best option for the state of AZ would be to enforce the new law anyway and simply ignore the ruling by the Federal judge. That's a can of worms that needs to be opened.

  29. When I moved to CA and applied for a driver's license, the DMV drone accidentally flagged my (American) passport as foreign, and two weeks later I got a note informing me that a driver's license couldn't be issued because the INS couldn't confirm my immigration status.

    One extra trip to the DMV cleared that up, but the question is: in the future, because of this ruling, would the DMV even be able to check my immigration status? Or is that no longer allowed either? Just how extensively has state governments' leeway to do immigration checks for all manner of routine procedures been completely gutted? I suspect this goes even further than criminal justice.

  30. If you look at the early Founder's discussions of immigration, they wanted States to be impotent in questions of immigration, for which they demanded just 2 years residency to gain citizenship. It's always disturbing to me to see how many Tories of the John Adamas persuasion still exist on the right, always longing for the old Alien and Sedition Acts.

  31. It's disturbing to me to see an American who pretends that we still live at a time when immigration to the States took several months and the death toll was high. Upon arrival, the immigrant would find that 2 years' residency also meant 2 years' self-supporting labor and no emergency rooms, access to public education for his children, etc. Oh, that's EXACTLY like now!

  32. cf said (July 28, 2010 6:28 PM)

    "I do not see the voters continuing to allow the feds to avoid their obligations ... "

    What makes you think "the voters" still have any say? Just as they have for over 200 years, candidates will say what they think we want to hear, and we'll elect them because of their promises. THEN they will find they're in thrall to the Party and the PAC's and the Big-Money contributors and their lobbyists. And THEN, they will fold like wet paper bags.

    Our "elected representatives" have spent the last 18 months ignoring us, preferring instead to slavishly follow the lead of this Most Corrupt Administration (which in turn chooses to dismiss our outrage as merely "those bitter clingers" not comprehending the New Age of Wonderful being bestowed upon us by our Superior Ruling Class).

    About the only difference I can see between Obama and King George is that Obama isn't quartering his troops among us. Yet.