[Vision2020] The 2008 Legislature and SB1427 - When Idaho Gave a Damn

[Andreas Schou]

Wayne --

You're being lied to. First, there's the issue of the law itself. It
isn't a mere echo of federal law.

(1) The federal statute they claim as authority doesn't apply to
illegal immigrants, or so says the only reported federal case on the
issue. If it did, it would result in the bizarre outcome of illegal
immigrants being required to carry a card which they were not (and
could not have been) issued.

(2) Unless the law has been successfully amended, cops are required to
ask about immigration status during any lawful contact. This means
victims. That means witnesses. Yes, that means criminals as well. But
how is an illegal immigrant supposed to (for instance) report a rape,
when doing so would result in a mandatory inquiry into her immigration
status?

(3) If the cops fail to do this, they can get sued by any taxpayer. Do
you think this is a good idea? Do you think this promotes good
policing?

(4)  The police aren't required to check immigration status before
arresting. Here's the standard the law sets:  "A REASONABLE ATTEMPT
SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS
OF THE PERSON." If they have probable cause, they're required to
arrest and hold (at least) overnight while they check immigration
status. Taken together, the law explicitly requires -- rather than
merely permits -- the police to conduct immigration sweeps. Do you
find this acceptable?

Second, there's the Constitutional issue of preemption. The Supremacy
Clause means that, when a federal and state law conflict, the federal
law wins out. There are two major ways this can take place: explicitly
and implicitly.  Implicit preemption can happen when the federal
government establishes a system of regulation so comprehensive that
there's no conceptual room for a state regulatory scheme.

There's a good case that there is now explicit preemption. The 287(g)
program, for instance, purports to give the federal government the
authority to grant immigration enforcement to localities. If the
federal government has the discretionary authority to grant
enforcement authority, the obvious corollary is that immigration
enforcement authority is denied unless the feds exercise that
discretion. There haven't been any cases on the subject, but this
appears to be a reasonable interpretation.

Even if there's no explicit preemption, the state of the law -- both
at the Supreme Court level and in the 9th Circuit -- is that
immigration enforcement authority is generally preempted where not
expressly permitted. The Supreme Court's latest statement on the
subject was in De Canas v. Bica. Here's the relevant language: "Power
to regulate immigration is unquestionably exclusively a federal
power." They found a narrow statutory exception for business
licensing. That's all. It doesn't get clearer than that. That case is
echoed in the 9th Circuit in Gonzales v. City of Peoria. The law in
both places is that the Arizona law is preempted.

Third, there's the issue of how the law came to be. For the two thirds
of Arizona's population that lives inside the Phoenix metro area, the
primary immigration enforcement authority is the Maricopa County
Sheriff's department. There's a federal program, known as 287(g),
which gives local law enforcement agencies dual authority as ICE
agents. Traditionally, this has been how local police departments
enforce federal immigration law.

Here's the problem. The Maricopa County Sheriff's department, amongst
its other civil rights violations, has a policy of indiscriminately
arresting and holding Hispanic residents overnight while they check
immigration status. For instance, their last sweep, they arrested 600
on minor traffic charges, jaywalking, littering, et cetera. They
released released 300. Since the beginning of the sheriff's tenure,
the department's paid out 47 million dollars in civil rights
violations. They've been under grand jury investigation since the end
of the Bush Administration, for doing things like (for instance)
seizing a county computerized record system containing confidential
defense information. At gunpoint.

For a pattern of civil rights abuses severe enough to lead to federal
indictment, they had their 287(g) authorization pulled. They'd be able
to enforce federal immigration law if they still had it. Instead of
fixing the problem or electing a new sheriff who wasn't inclined to
randomly round up Hispanics without probable cause, they decided to
give the feds the middle finger and passed a law that said otherwise.

Even with that being the case, it's possible that the law was just a
finger in the eye of the feds and not racist, right? Well, no,
probably not. The law's sponsor was Russell Pearce. He's an
interesting guy. Back in 2006, he was caught forwarding on emails from
the National Alliance -- a neo-Nazi group -- to his email list. (1) He
endorsed J.T. Ready, an open neo-Nazi, for Mesa City Counsel; that
same J.T. Ready introduced him, in a speech calling for nationwide
marital law, at an anti-immigration rally in 2007. I might be willing
to overlook a few speeches to the CCC. Maybe a racist statement by a
staffer. But when a politician is forwarding on emails about how Jews
control the media and applauding speeches calling for martial law, I
start to think that it's reasonable to call that politician a fascist.

You're wrong. The law was written by a white supremacist in order to
restore enforcement power to an agency which had had it

-- ACS

(1) http://www.stormfront.org/jewish/whorules.html. Click through if
you want to read exactly what he forwarded on. Be aware that it's
exactly what it says on the box.

On Mon, May 24, 2010 at 3:41 PM, Wayne Price <bear at moscow.com> wrote:
> Yes Mr. Hansen, I am sure.
> Strongly urge you to read the ENTIRE  AZ law, particularly  Article 8,
> 11-1051 in it's entirety.
> All the AZ law does is incorporate the current federal laws into state law.
> The Supreme Court has stated clearly and often that the U.S. Constitution
> gives Congress “plenary power” over immigration policy, meaning that
> Congress has virtually unlimited authority to regulate immigration into the
> United States. The Supremacy Clause of the Constitution says that federal
> law supersedes conflicting state law. In immigration matters, the courts
> have consistently held that this means that states may enact
> immigration-related laws that go as far as, but no further than, duly
> enacted federal laws, except in areas where Congress has specifically
> preempted state action. (The primary example of Congress preempting state
> action is 8 U.S.C. 1324b(h)(2), which prohibits states and localities from
> “imposing civil or criminal sanctions (other than through licensing and
> similar laws) upon those who employ, or recruit or refer for a fee for
> employment, unauthorized aliens,” which is why states and localities must
> tie E-Verify mandates to the issuance of business licenses.) Congress has
> not preempted state or local action regarding any of the federal laws that
> the new Arizona law seeks to enforce, so long as the state law goes no
> further than existing federal law. The Arizona law was drafted meticulously
> to ensure that it complies fully with the U.S. Constitution and with federal
> immigration laws.
>
>
>
>
>
>
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