Supreme Court Showdown Over Arizona

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Fresh from one Supreme Court showdown against dissenting states with major political ramifications, the Obama administration heads into another one this week as the Court begins its review of SB 1070, Arizona’s anti-illegal immigration law.

Arizona’s law requires state police to enforce federal immigration law by confirming the legal status of criminal suspects and detaining them if they are illegal immigrants. Despite that seemingly modest goal, it has been in legal limbo since July 2010, when the Obama administration’s Justice Department filed suit to block it from going into effect. Arizona has always maintained that it had the authority to enact the law. Now the Supreme Court will step in to referee who is right.

At the heart of the case, as in the recent hearings over ObamaCare, is the balance between federal and state authority. The Obama administration argues that the Arizona law cannot be allowed to stand because the Constitution gives the federal government jurisdiction over immigration laws, and the Arizona law conflicts with federal enforcement efforts. Arizona’s law is invalid, in other words, because it is “pre-empted” by federal laws. On the basis of similar reasoning, several federal courts have already blocked sections of the Arizona law from going into effect.

Arizona frames the issue differently. The state argues that, rather than conflicting with federal law, SB 1070 is complimentary with it. That is a significant distinction because the Supreme Court has in the past affirmed the right of states to have concurrent immigration laws. Attorney Kris Koback, who helped draft the Arizona law before moving on to his current post as secretary of state in Kansas, has pointed out that “the Supreme Court has ruled multiple times that states have spheres of activity where they can operate to discourage illegal immigration. It’s an area of shared authority.” Koback points out that the Arizona law should fall under this sphere because there is nothing legally novel in it. For instance, contra the Obama administration, Arizona’s requirement that immigrants carry registration has already been federal law since the 1950s.

But if the Arizona law and the federal law are essentially the same, why is the former even needed? Arizona’s argument is clear: The federal government is not enforcing its own law. It’s a strong argument, made all the more compelling because the Obama administration has essentially conceded as much. When it comes to illegal immigration, the administration has followed a policy of what it calls “prosecutorial discretion.” In practice, that means that most illegal immigrants who do not have a criminal record are allowed to remain in the country. Last summer, for instance, the administration announced that it would indefinitely delay deporting illegal immigrants without criminal records and give them a chance to apply for a work permit.

Whatever one’s view of the policy, it lends credence to Arizona’s claim that the government is not enforcing the laws against illegal immigration. Since federal law makes no distinction between different categories of illegal immigrants, the administration’s policy amounts to selective enforcement at best and effective non-enforcement at worst. By contrast, the Arizona law is rooted in the policy of maximal “attrition through enforcement.” The underlying idea is that enforcing existing immigration laws can gradually reduce the illegal immigrant population. Given that premise, Arizona could plausibly argue that a state anti-illegal immigration law that enforces existing federal law cannot be in conflict with it.

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  • Chezwick

    The Obama Administration looks the other way at 'sanctuary-cities' that flout federal immigration laws….while it litigates against Arizona for trying to do the job the federal government refuses to do and stem the flow of illegal immigration. It's also pulling thousands of National Guard troops guarding the US-Mexican border, and refuses to detain and expel illegals who have no felony records.

    The agenda is clear…to undermine border security and encourage illegal immigration from Mexico, Central and South America. Why? Easy: to facilitate the ethnic and linguistic transformation of America…and in the process, to secure a permanent Democratic Party majority in the country.

  • davarino

    Hispanic citizens in this country should be in favor of anti illegal immigration policies since illegals are taking their jobs as well as the rest of us. They are also paying higher taxes, medical bills, ….etc. for all the freebees the illegals get. Wake up, this country is being ruined by the very people you support coming here illegally.

  • StephenD

    Chez is correct. Please keep in mind that with the relaxation of enforcement there has been documented at least 54 nationalities besides Mexican that have come across the southern border alone. That includes nefarious folks from the Mid-East who have a friend in Chavez who will help them to the border. I don't think these guys are "seeking a better life for their children."

  • Dispozadaburka

    Strategic Vision America and the Crisis of Global Power by Zbigniew Brzezinski The World After America
    Page 107" A more coercive US attitude and policy toward Mexican immigrants would heighten Mexican resentment. After 9/11, the issue of border security has come to be seen as essential to homeland security; the spector of an Islamic terrorist crossing the border from Mexicos enhanced popular cries to seal off the border completely. America's decision to construct a wall/fence to separate itself from Mexico as a mechanism to support border security has already stimulated anti-American sentiments. It evokes negative images of Israel's
    construction of a "security barrier" in the West Bank or of the Berlin Wall. An internationally declining….cont

    • kongMing

      Murdering border patrol agents
      plotting a terror attack in DC with the Iranians
      pumping billions of dollars of heroin meth and crack into our country
      torturing to death people who fight for freedom with such acts as
      beheading women to extort prostitution
      drawing and quartering those who refuse gladiator combat…
      Human trafficking all along the border which is a modern form of slavery.

      yep don’t want to loose the cartel’s good will.

  • Dispozadaburka

    America is likely to become even nore disturbed by the insecurity of its porous border with Mexico and the resulting immigration, inspiring a continuation of similar policies and creating a dangerous downward spiral between the two neighbors."
    Pg 109 "An additional and convenient pretext could be the notion that anti-immigrant sentiment in the US is tantamount to discrimination, thus requiring retaliatory acts. These in tern could lead to the argument that the presence of many Mexican on the formerly Mexican territory raises the issue of territorial self-determination."

  • Spider

    There has been credible inteligence report of a staging area for middle easterners in Cancun Mexico. There they are taoght Spanish and how to dress and act like Mexicans to blend in with the large groups coming over the border every day. They are from such friendly places as Iran, Iraq, Yemen and Saudi Arabia. Something tells me they are not coming here just to pick fruit…

  • BS77

    We have been very concerned about the flood of illegals for over twenty years…the Government has done little or nothing to enforce our immigration standards and laws; has done little to protect our border. Now it is too late. There are millions of illegals in this country…many with children born here. It is a catastrophic mess. It is criminal dereliction of duty….but guess what….no one , not one federal bureaucrat will ever be fired or prosecuted for allowing this disaster. That's job security for you.

  • Supreme_Galooty

    This will work:

    1. One year moratorium on arresting or deporting anyone.
    2. If you are caught here illegally AFTER that, you get one year in a tent prison in Arizona.
    3. If you are caught here illegally and you are WORKING, your EMPLOYER gets one year too.
    4. If you are caught here after THAT, it is ten years.
    5. Any children involved become wards of the State to be adopted out to unrelated parties. Period.

    No fence is necessary. No extra laws either.

    • Annika

      And what resources do you think employers have to identify illegals? I am an employer who hired illegal immigrants unwittingly, they buy fake social security cards ($5,000 is the going rate) and they buy other "legal" documents that are mastery of deception. All their paperwork was in order, everything looked official, I followed specifications on the I-9 Form to the letter and was mislead nevertheless into hiring two illegals (it took over 2 yrs for me to find out). There's no agency to call in order to verify someone's eligibility to work; recently e-verify has been developed, perhaps it will help the small business owners. But the employer is not always to blame

  • clash715

    Part 1
    You know, I was out in massachusetts two weeks ago….very close to where the Kennedy's vacationed. I was noticing how few illegal immigrants were out there.

    No decrepit neighborhoods that illegals have taken over. No closed down hospitals that illegals have abused to the point of making them financially unviable. No overcrowded school districts with the kids of illegals. No filled up jails with illegals. No problems with gangs composed of the teenage kids of illegals.

  • clash715

    part 2
    Now I can understand why left wing pukes like the kennedy's don't "see" any problems with illegal immigration. They don't have to deal with the issue. However, for tens of millions of us out in the southwest. WE DO have to deal with it. I would like to force left wing supporters of illegal immigration to house some illegals in their OWN homes. It would also be nice if THEY personally were forced to pay for all the hospital care for illegals and their dependents, schooling for the dependents of illegals, and other social spending for illegals and their dependents. If they personally had to pay all these costs, instead of the costs being spread over all taxpayers, these leftist morons would change their tune.

  • clash715

    When I cheat on my taxes, I am also "seeking a better life for my children", but does that make it right?

    There are 5 billion people that want to move to the US. They can't all come here. The system would go bust.

  • Ghostwriter

    Don't forget about legal immigrants. Especially from Mexico. They have every right to feel angry that there are those who come here illegally and yet enjoy the same rights as they and native-born Americans do. It's not fair to them. They would cheer laws like the one in Arizona.

  • mrbean

    Hey man, we don't need no stinking green cards. Obama gonna let us take over Arizona and California. We do the jobs that the negroes too lazy to do.

    • Ghostwriter

      I'd love it,mrbean,that you'd leave Stereotype Land for the real world. I'm not fond of illegal immigration but you're constant bashing of black people doesn't help your case any.

  • WilliamJamesWard

    States Rights stand in the way of a dictatorship in Washington DC and must be destroyed with
    overwhelming opposition from the power of the Administrations deep pockets filled with purloined
    tax funds from the States Citizens it wishes to rule. Federal excesses and failure to stay under
    Constitutional restraints and past practice threaten the life of the Nation. Each Governor if a good
    one spends considerable effort promoting the financal health of their constituents and must grieve
    at the monetary policies of a Washington Bureaurcracy with lavish tastes impovershing the working
    class and destroying through regulations new enterprise while corrupting what has worked in fostering
    well being. It is now probably a common place reality that the States see Washington as and enemy rather
    than a partner in good government, the DC regime works only for what we can call…………
    ………………………."partners in crime'………………………….William

  • kongMing

    Also don’t forget the bloggers who had their throats’ cut in Laredo.

  • maghrebchristians

    A domestic altercation one afternoon and a subsequent revelation about faith conversion changed the lives of Christian couple Amin Masih and Shehnaz. While the couple decided to stick with each other, they were shunned by their hometown and the kindness once shown by their Muslim neighbours soon turned into disapproval and threats

    Read more:


  • RonCarnine

    I was a cop for 16 yrs. before retiring from an injury. On weekends especially, we would have any number of illegal aliens coming into our community on Union Pacific trains. The closest immigration station was in Miami, Oklahoma. We would call the number for immigration in aforementioned Oklahoma station. Guess what? No one there would answer the phone! This didn't just happen once, it happened all the time. We would wind up letting them go. They would come through our community 5-6 at a time and there was nothing we could do about it. The feds weren't interested in stopping illegal immigration then, they aren't interested now.