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« Paul Krugman: Hey, I've Got a Great Idea! Let's Raise Taxes on the Middle Class! | Main | Boehner Makes New Promise: No Way Debt Limit Is Increased Without Reform »
April 11, 2011

As Expected, Ninth Circuit Affirms Lower Court's Ruling That Arizona Immigration Law Is Icky

We need a new word. Plainly decisions aren't being made according to whether they're Constitutional or not. It's whether they're ickonstituional.

Here's a report from the WSJ.

We stress that the question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way… This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.

. . .

By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents.

As I've said before: The Arizona law is in full comportment with federal law. What it conflicts with is federal policy, which is to ignore the written, constitutionally-promulgated law.

Federal law may trump state law but does a shamefully dishonest secret policy choice trump both federal law and state law?

Full ruling here.

Gabe points out the majority's dismissive, condescending tone in Footnote Six:

We have carefully considered the dissent and we respond to its arguments as appropriate. We do not, however, respond where the dissent has resorted to fairy tale quotes and other superfluous and distracting rhetoric. These devices make light of the seriousness of the issues before this court and distract from the legitimate judicial disagreements that separate the majority and dissent.

This refers to the holding opinion's claim that various sections of federal law permitting and also requiring state assistance in identifying illegal aliens is somehow proof that the federal government actually means to prohibit state assistance in identifying illegal aliens.

The court's way of dispensing with this is to basically claim that while "incidental" state assistance in this matter is okay (being as that it's expressly required by federal law, that's not much of a concession), a "systematic" enforcement of it conflicts with federal law.

Why? Well, they don't really say. They're sort of just making it up and saying "Because I said so."

But as I said, they are taking federal policy -- which is to generally ignore immigraiton violations -- as trumping written, voted upon, federal law.

Federal law is passed by both houses of Congress and signed into law by the president. That's the procedure the Constitution provides for.

On the other hand, a policy is just set by a single man (the president) and has no force of law. Especially not when it explicitly contradicts the written law.

But because the feds have decided their policy is really -- no matter what the law says -- to throw the rubes a once-in-a-while immigration enforcement but otherwise ignore it, the court claims, just because it says so, that policy likewise restrains state law.

The "fairy tale" criticized by the Court seems to be this, an argument in a footnote:

We strive to read Congress’s enactments in a reasonable manner. Am. Tobacco Co. v. Patterson, 456 U.S. 63, 71 (1982) (“Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible.”). Is the majority’s reading of § 1357(g)(10) reasonable? Imagine, for a moment, its implementation. Morning dawns at the Pima County (Tucson) Sheriff’s Office. The watch commander assembles the deputies: “Officers, in your patrols and arrests today, please remember the Ninth Circuit has told us that if you encounter aliens you suspect are illegally present in this country, you may check their immigration status with federal immigration officers, and cooperate with federal agents in their identification, apprehension, detention and removal, but only (1) if called upon by the federal authorities to assist, or (2) absent such request, where necessary, but (3) then only on an incidental basis, and (4) not in a routine or systematic basis.” Officer Smith responds: “Commander, does that mean that, unless asked by the federal officers, we cannot determine immigration status of suspected illegal aliens from federal immigration officers or cooperate to help in their removal in each case in which we have reasonable suspicion, but, on the other hand, that we can do so when necessary, but then only once in a while? When will it be ‘necessary’? Second, for every ten suspicious persons we run across, in how many cases are we allowed to request immigration checks and cooperate with the federal authorities without our immigration checks becoming ‘systematic’ and ‘routine,’ rather than merely ‘incidental’?” Rather than explain the content of the conditions which it invents— “called upon,” “necessity,” “systematic,” and “routine”—the majority turns up its nose at a scenario made all-too-probable by its vague limitations; limitations themselves bereft of structure for lack of citation of authority. As in the case of its refusal to refute its traducing of statutory language (see footnote 5, supra). the majority declaims the impropriety of my criticisms, rather than discuss why they are wrong. But that does not shed any light on the question likely to be asked by the Sheriff’s Deputy: “When can I detain a suspect to check his immigration status?”

Well, that's not a fairy tale; that's actually correct. The court can think of no reason to overturn a state law except a single man has decided on a policy without the force of law and he doesn't like the state law so of course it is unconstitutional. It dresses this up by claiming federal law requires that inspection of suspected foreign aliens must be only "incidental" and sporadic -- but nowhere does federal law ever say that.

That may be what the President wants, but that's not the law.

State laws are now being overturned because President Awesome doesn't like them. Citation: I won.



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posted by Ace at 05:15 PM

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