Monthly Archives: July 2010

The Case Against Arizona

The Obama administration failed to secure our borders, failed to shame Governor Brewer into submission and failed to get the American people to side with them in the immigration debate.  Obama has now presented a case against Arizona’s immigration law.  Another failure queued-up?  Perhaps the U.S. Constitution’s Supremacy Clauseholds the key (but when was the last time Barack could be bothered with anything in the Constitution).

Article. VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Article VI describes how Federal Law conquers State Law If their is already a Federal Law for something then its a Crime against the Nation as a whole and not an individual state. In what way does SB1070 violate this? In no way.
SB1070 Is not an immigration agent, an immigration process, or an immigration policy. It does not conflict with the supremacy of the Federal Government in any way, but aids in the enforcement of Federal Law. The Federal Law is supreme and SB1070 does not violate Federal control of immigration process or procedures.  In fact, the Federal Immigration and Nationality Act Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) is the basis for Arizona’s law.
Bringing in and harboring certain aliens
(c) Authority to arrest: No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.
The Federal Statute clearly says all law enforcement officers may enforce the law and legal experts state that it even specifically enumerates the State’s right to enforce the law:
“State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens. Hispanic appearance alone is not sufficient.”
So as long as local laws allow (like SB1070) local Law Enforcement officers are not restricted from investigating immigration status or arresting violators, that match the examples for “Reasonable Suspicion.”
So it looks like the actual Federal Laws on the books are in Arizona’s favor but there is potential for case law against, lets take a look.
One example is the Supreme Court case of  Hines v. Davidowitz. Media Matters used this case to attack Fox&Friends’ Steve Doocy & his explanation of why SB1070 would stand.
“In the 1941 case of Hines v. Davidowitz, the Supreme Court examined a Pennsylvania statute that mandated every immigrant to register with the state once each year, provide other information and details that the state Department of Labor asked for, obtain and carry an identification card, and display it when asked by police, among other stipulations. The federal government challenged the state law because the law “encroached upon the legislative powers constitutionally vested in the federal government.” The Supreme Court agreed, concluding that the federal government: is correct in his contention that the power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation, but that whatever power a state may have is subordinate to supreme national law.
The Court said that the federal government had “plainly manifested a purpose…to protect the personal liberties of law-abiding aliens through one uniform national registration system, and to leave them free from the possibility of inquisitorial practices and police surveillance that might not only affect our international relations but might also generate the very disloyalty which the law has intended guarding against.” Therefore, the Pennsylvania law was struck down.”

Of course Media Matters’ Brooke Obie forgot to mention that, gee, Immigration Laws have kinda changed a little bit since 1941.  In fact: § 1304. Forms for registration and fingerprinting
(e) Personal possession of registration or receipt card; penalties
Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.
Which means all legal Immigrants are required to carry proof of their status under federal law. As they are already required to carry this identification if they are not yet American Citizens anytime a police officer asks for Identification and the person is a legal Immigrant, this is what they would present, under Federal Law.
As this is the Federal Law already, Arizona has not gone above it, or outside it but is using it to seperate Legal Immigrants from Illegal Aliens. The state of Arizona knows it is subordinate to Federal Law and makes no move to usurp it but coincide with it and legally assist with its enforcement.
Next case against: Pennsylvania vs Nelson 350 U.S. 497 (1956)
According to Exploring Constitutional Conflicts The Pennsylvania v Nelson case provides a possible basis for a preemption challenge to the Arizona law.  Here’s language from Chief Justice Warren’s opinion for the Court, striking down a Pennsylvania law making it a state crime to advocate the violent overthrow of the United States government:

As was said by Mr. Justice Holmes in Charleston & Western Carolina R. Co. v. Varnville Furniture Co:
“When Congress has taken the particular subject matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.”

Second, the federal statutes “touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same subject.”

Congress having thus treated seditious conduct as a matter of vital national concern, it is in no sense a local enforcement problem. As was said in the court below: “Sedition against the United States is not a local offense. It is a crime against the Nation. As such, it should be prosecuted and punished in the Federal courts, where this defendant has, in fact, been prosecuted and convicted and is now under sentence.  It is not only important, but vital, that such prosecutions should be exclusively within the control of the Federal Government. . . .

Third, enforcement of state sedition acts presents a serious danger of conflict with the administration of the federal program. Since 1939, in order to avoid a hampering of uniform enforcement of its program by sporadic local prosecutions, the Federal Government has urged local authorities not to intervene in such matters, but to turn over to the federal authorities immediately and unevaluated all information concerning subversive activities….”
1. SB1070 does not go further than Federal Law in any way and is in fact lighter.
2. Arizona only apprehends, they do not prosecute but rely on ICE for determination of Immigration status and ICE will prosecute and deport if necessary, not Arizona.
3. SB1070 does not violate the third point but goes hand in hand with it. If the person has no ID and the officer has “Reasonable Suspicion” as described above, he contacts the Federal Authorities immediately (ICE) and they determine the status and handle it from there.
Now that the counter-arguments are out of the way, let’s look at the precedents in SB1070’s favor.
1. Supreme Court of the United States: Muehler v Mena March 22, 2005
The officers’ questioning of Mena about her immigration status during her detention did not violate her Fourth Amendment rights. The Ninth Circuit’s holding to the contrary appears premised on the assumption that the officers were required to have independent reasonable suspicion in order to so question Mena. However, this Court has “held repeatedly that mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434. Because Mena’s initial detention was lawful and the Ninth Circuit did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment, and, therefore, no additional Fourth Amendment justification for inquiring about Mena’s immigration status was required.
And the kicker getting all the publicity lately is Rhode Island as the State is not enforcing a state law but a Governor’s Executive Order
Executive Order 08-01Illegal Immigration Control Order
State Police and Dept of Corrections are to work with ICE and recieve training from ICE agents and it is urged that all law enforcement officials, including state and local law enforcement agencies take steps to support the enforcement of federal immigration laws by investigating and determining the immigration status of all non-citizens taken into custody, incarcerated, or under investigation for any crime and notifying federal authorities of all illegal immigrants discovered as a result of such investigations. Nothing in this Executive Order shall be construed to supersede, contravene or conflict with any federal or state law or regulation or deny a person’s rights under the Rhode Island or United States Constitution and to this extent employees of the Executive Branch may act independently of this Executive Order in order to avoid such conflict or violation.
This Executive Order has been in effect in Rhode Island and has already survived legal challenges going up to the United States Court of Appeals, First Circuit.
Whats important about this case are the similarities between this officers actions and the wording of SB1070.
I. Background
The events transpired in the early morning of July 11, 2006.   Plaintiff-Appellant Carlos E. Tamup (“Tamup”) was driving a fifteen-passenger van heading south on Interstate 95 in Rhode Island.   The remaining eleven Plaintiffs were passengers in that van and were on their way to work in Westerly, Rhode Island.   Somewhere near exit 4 in the Town of Richmond, Tamup failed to activate his turn signal as he switched lanes in the two-lane stretch of road.   Rhode Island State Police Officer Thomas Chabot (“Officer Chabot”) was stationed in a marked state police cruiser parked on the grassy median on Interstate 95.   Upon observing that the van had failed to signal its lane change, Officer Chabot engaged his overhead lights to stop the van.
At Officer Chabot’s request, Tamup produced his driver’s license, vehicle registration, and proof of insurance. Responding to Officer Chabot’s question, Tamup stated that his wife owned the van and that he and the other passengers were driving to work polishing jewelry in Westerly, Rhode Island.   Walking over to the passenger’s side of the van, Officer Chabot asked the front seat passenger, Plaintiff Guilfredo E. Camay Muñoz (“Camay”), for identification.   When Camay stated that he did not have identification on his person, Officer Chabot asked for his name and birth date.   Although there was an obvious language barrier, Camay was able to give his name and provide his birth date.
Officer Chabot opened the front passenger door and counted the number of people inside, stating that there were fifteen persons. Using Tamup as a translator, Officer Chabot asked the rest of the passengers to produce identification.   Some of the passengers produced various forms of identification:  a gym membership card, a non-driver’s license identification issued by the Rhode Island Division of Motor Vehicles, and two identifications issued by the Guatemalan Consulate.   Continuing to use Tamup as a translator, Officer Chabot then asked the passengers if they could produce documentation establishing their U.S. citizenship. None of the passengers was able to produce such documentation. According to Officer Chabot’s deposition testimony, he did not observe any unusual or suspicious activity from Tamup or the van’s passengers at this or any other time. Officer Chabot also testified, however, that he normally requested identification from passengers in vehicles he stopped, and that more than 99 percent of the passengers from whom he requests identification can supply it.
Officer Chabot then requested that Tamup step out of the van so that he could perform a pat-down search. See Terry v. Ohio, 392 U.S. 1 (1968).   The search did not yield anything, but during the course of the pat-down, Officer Chabot asked Tamup if he and the rest of the passengers had green cards or work papers, and specifically requested that Tamup give him his social security number and green card.   Tamup stated that he only had his driver’s license and that the other passengers did not have any other documentation.
Officer Chabot returned to his cruiser and conducted a background check on Tamup.   Tamup’s license came back as valid and his criminal background check was negative.   Officer Chabot then contacted Immigration and Customs Enforcement (“ICE”) and reported that he had pulled over a passenger van transporting individuals whom he believed might be illegal immigrants.”
“A. The Inquiry About Immigration Status and Contacting ICE
Plaintiffs do not contest the validity of the traffic stop, nor do they argue that it was unlawful for Officer Chabot to request identification from all the passengers in the van, a question our Circuit has not conclusively decided.  Instead, Plaintiffs argue that Officer Chabot’s inquiry into their immigration status and subsequent call to ICE prolonged the traffic stop, converting it into an unlawful seizure in violation of the Fourth Amendment.
We cannot say, however, that it was clear as a matter of law that Officer Chabot’s brief line of questioning, nor the three minutes it took for him to receive a response from ICE, unreasonably prolonged the stop such that independent reasonable suspicion was necessary to support his inquiry into Plaintiffs’ immigration status.   The traffic stop at issue took place a year after the Supreme Court’s decision in Muehler v. Mena, 544 U.S. 93 (2005).   In that case, the Court held that a police officer does not need independent reasonable suspicion to question an individual about her immigration status during the execution of a search warrant, but that such inquiry constitutes “mere police questioning” so long as the detention was not prolonged by the questioning.
We also note that by the time Officer Chabot asked about Plaintiffs’ immigration status, he knew that:  (1) Plaintiffs were headed to work;  (2) most were unable to produce any identification, and of the four who did, two could produce only identifications issued by the Guatemalan consulate;  and (3) they spoke little English. Officer Chabot also testified that passengers, of whom he requests documentation as a matter of routine, are able to produce valid identification more than 99 percent of the time.   All of these facts combined may well have sufficiently heightened his suspicions for him to believe that he could shift his inquiry from the traffic stop to investigating other potential criminal activity.   See Chhien, 266 F.3d at 6 (“[W]hile an officer’s actions must bear some relation to the purpose of the original stop, he may shift his focus and increase the scope of his investigation by degrees if his suspicions mount during the course of the detention.”).
In any event, the law was not and is not know clearly established, such that Chabot should have known that he could not investigate further.   We thus conclude that Officer Chabot is entitled to federal and state qualified immunity for any possible constitutional violations that he may have committed in asking the van’s passengers questions about their immigration status and in contacting ICE.
This looks overwhelmingly good for Arizona with only the admission that “the law was not and is not know clearly established” against.
“State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens. Hispanic appearance alone is not sufficient.”

I stand with Arizona and believe they will win the case.

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Obama’s Idea of Immigration Enforcement: Whack-a-Mole

Other than suing any state willing to go after illegal immigrants, the White House has done precious little to secure our borders.  Lately, the Obama administration has turned to that age old arcade favorite, “whack-a-mole” for guidance.

The New York Times reports that the current administration has replaced work-place raids with audits.

While the sweeps of the past commonly led to the deportation of such workers, the “silent raids,” as employers call the audits, usually result in the workers being fired, but in many cases they are not deported.

These silent raids come down to a review of company records to ascertain the legitimacy of the workers documentation.  Should a worker’s records come under suspicion, there is no investigation into the worker, the employer is asked to fire them.  That’s it.  No deportation, no criminal prosecution of the employer.. just fire the worker – they then pop-up at another employer with new false documents.  One day a California strawberry picker, next day a Nevada meat packer..

Without substantial penalties to both the employer and worker this amounts to nothing more than forced career changes for illegal aliens (that’s old-speak for undocumented worker).  The NYT article reports an underwhelming sum of $3 Million in fines against businesses that hire illegal aliens.

One sentiment is that at least this approach doesn’t break-up families where the children were born in the U.S. but the parents are here illegally.  Of course, parents following the legal path to entry into the country or ending the practice of bestowing citizenship on anyone born to an illegal alien would also address this issue.

Business owners are also complaining that Americans don’t seem to want the work at the wages they are offering.

Employers say the Obama administration is leaving them short of labor for some low-wage work, conducting silent raids but offering no new legal immigrant laborers in occupations, like farm work, that Americans continue to shun despite the recession. Federal labor officials estimate that more than 60 percent of farm workers in the United States are illegal immigrants.

Of course citizens don’t want those jobs, with minimum wage, overpaid unionized labor and unemployment benefits that last almost two years.. why would they?

Is the program working?  The Times article reports that a school administrator said, “There was no wave of deportations and few families left on their own for Mexico.”.  So what’s the point of all this?  Increasing the voter rolls for the progressives.  By hook or crook, take the election.  Illegal immigrants are a considerable current and future voting block for the lefties.  It’s one reason that the Democrats are doing everything they can to prevent the enforcement of the Motor Voter clean-up clauses.  That would force deceased voters to be removed from the rolls – registrations that tend to show up used by illegal aliens and vote fraudsters.

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