Thursday, July 8, 2010

"Treason"

At the end of this month, Arizona's anti-immigration law will take effect. SB1070 requires all immigrants to carry proof of citizenship at all times, and gives Arizona law enforcement officers the right to ask for that ID if they reasonably suspect someone they're dealing with of being an illegal immigrant. Those who don't produce their ID on demand can be detained. Arizona has not yet decided what constitutes reasonable suspicion of illegal immigrant status; the Arizona Peace Officers Standards and Training Board is tasked with figuring out that key part of the law. This will be quite tricky, as race is not an accepted criterion for suspicion. But the law is aimed specifically at Mexican illegals. Hmm. Complicated.
The passage of the bill was spurred, in part, by the murder of Arizona rancher Robert Krentz in March. On the day he was shot, Krentz reportedly used a two-way radio to tell his brother he had been seen an "illegal alien" in the area. He did not impart any other information. The attitude of many Arizona citizens seems to be, "We know it was an illegal drug smuggler, we just don't have any evidence of that, or any suspects."

Let me make it clear, for the record, that I have a great deal of sympathy for illegal immigrants from Mexico. If I had a family in one of the poorest parts of that country, I would certainly sneak into a safer, more prosperous country in the hope that my children would have opportunities they could never otherwise have. That's natural. We want the best for our families. So the problem is not with the illegal immigrants themselves. I don't believe, as Jones has stated, that they are "diluting the culture", because the U.S. is a nation of immigrants, anyway. Yes, I know that increased crime rates are being attributed to illegal immigration and/or trans-border drug smuggling - but that's not a situation that needs new laws. It just needs tougher enforcement of existing laws, and/or increased funding for law enforcement in high-crime areas.
The bottom line is, though, that I oppose illegal immigration. As difficult as it is to face, I believe that Mexicans must stay in Mexico until they can enter the U.S. lawfully to live and work. That's just the way it is.

But SB1070 has sparked fears of racial profiling and discrimination, and not without cause. I know that the U.S. doesn't treat even its legal immigrants well. Each new wave of immigrants is put through trial by fire: Racism, discrimination, marginalization, abuse. Hispanic Americans obviously don't relish the idea of being set apart from other citizens.
This is not the first attempt by a state to crack down on illegal immigration with extreme measures. Janet Napolitano, now secretary of Homeland Security, repeatedly vetoed similar legislation when she was governor of Arizona. A far less rigid anti-immigration bill, California's Proposition 187, was shot down in 1994.
An April Rasmussen poll showed that 70% of Arizona voters approved of SB1070.
On the other hand, San Francisco and a few other cities have passed laws protecting illegal immigrants from federal immigration law.

On Tuesday (July 6), the Department of Justice filed a federal lawsuit in the U.S. District Court in Phoenix against the state of Arizona and Governor Jan Brewer, seeking a court injunction to prevent the law from taking effect. The suit claims SB1070 interferes with existing federal immigration laws, and is therefore invalid.
Attorney General Eric Holder stated that "diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records will impact the entire country's safety."

Jones calls this lawsuit "treason", raising the question: Is it legal and Constitutional for the federal government to oppose (via lawsuit) a state law?

The answer is "yes". The federal government cannot repeal or amend state law, not even by executive order. But there's nothing to stop it from challenging the constitutionality of a state law in federal court, which is exactly what the DoJ is doing now. This is made possible by the Supremacy Clause of the Constitution, which basically states that federal law is the law of the land and can not be superseded or negated by state law. The "preemptive doctrine" derived from this clause permits the federal government to challenge any state law that encroaches upon federal regulation, law, interest, etc. But don't go thinking that this doctrine always works in the federal government's favour; it's actually very difficult, in most such cases, for the federal side to prove it has "occupation of the field". One fascinating example is Silkwood v Kerr-Mcgee (1984). After Karen Silkwood died in 1974, her family filed suit against Kerr-Mcgee. They were awarded $10 million in punitive damages, and Kerr -Mcgee fought the judgment by arguing that the federal government (in the form of the Atomic Energy Commission) was responsible for any "irregularities" at the nuclear facility where Silkwood had worked. In 1984, the Supreme Court ruled that in this case, federal regulation did not supersede state or local regulation and Kerr-Mcgee would have to pay up (they settled out of court instead, for a fraction of the original judgement). In other words, Kerr-Mcgee was held responsible for lax safety at their Oklahoma plant even though it met federal (AEC) standards. The University of Missouri-Kansas City School of Law has an informative page on these issues.
You might not like it, but the DoJ lawsuit against Arizona is constitutionally sound and perfectly legal. It will be up to a judge to decide if, as legal precedent indicates, naturalization is in the federal domain. If the Arizona law stands, then we may have a problem. Immigration and naturalization could become a state-regulated affair, with each state setting its own standards of citizenship. You could be a legal resident in Vermont but an illegal in New Jersey.

An equally important question: Is SB1070 unconstitutional? The answer, I believe, is "yes". The 14th Amendment states, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..." I'd say that stopping a citizen and demanding to see proof of citizenship is an abridgment of that person's rights. The argument that "he might be an illegal" is moot, because anyone might be an illegal. Now one of the Anonymi who commented on this post (along with many other supporters of SB1070) has pointed out that a driver's license can suffice as proof of citizenship, since you have to present your papers to acquire one. Therefore, there's nothing wrong with an officer asking someone for proof of U.S. citizenship. Jones states, in his special alert video about "Obama's treason", that SB1070 is just a "mirror" of federal immigration law. This is false. Federal law does not require immigrants to carry proof of citizenship at all times. It does require non-citizens ("permanent residents") to carry their green cards, but no citizen is legally required to carry any form of ID at all times.
You can argue that Arizona is struggling to fill in the gaps in federal legislation, but you cannot validly claim that the Arizona law is similar in any way to federal laws already on the books.

Jones also argues that the 11th Amendment, which forbids the federal government or any state from suing a state on behalf of a foreign entity, renders the DoJ suit unconstitutional. He's apparently referring to his belief that "foreign bankers" are taking over the U.S., and that illegal immigration suits their purposes nicely. He also seems to think the 14th Amendment makes the DoJ lawsuit unconstitutional. This is why Alex Jones is not a lawyer, folks.

Ironically, SB1070 could (and by "could" I mean "probably won't be") used as a gateway to the kind of mandatory universal ID cards that Jones & Co. fear. If immigrants must be required to carry proof of citizenship, why not the rest of us? It's interesting that both Jones and former Arizona governor Janet Napolitano criticized the Real ID Act, which contained anti-immigration provisions. Jones did so because he doesn't like the idea of national ID cards; everyone would be required to have one. However, the bulk of the administration of the Real ID system is under state control.

29 comments:

Paul said...

Over the years Alex has done quite a bit to demonize illegal immigrants from Mexico. He's talked about how they are all yakking in Spanish and just waiting for the orders from the bankers to go wild and kill whitey.

Kinda funny how Alex doesn't have an issue with a police state type law when its aimed at non-whites.

I'm not saying Alex is a racist per se but I think he knows what type of American the rhetoric appeals to.

S.M. Elliott said...

I think Jones is a racist who doesn't consider himself racist. In fact, he tries very hard not to be racist - and then his racism slips out anyway: Obama is a closet Muslim who will persecute whites (Nov. '08), Third World immigrants are given preferential treatment at Canadian border crossings while whites like Jones are mistreated (Apr. 8/09), Mexicans are diluting U.S. culture and may rise up against white people because a comedy-action movie tells them to do so (throughout May).

Paul said...

He also managed to say the Israeli lobby wanted only Jews to have guns but not gentiles. He said this around the same time he had Mike Rivero on his show most recently.

Anonymous said...

Fed law demands foreigners carry their papers, since the 1940's.

Anonymous said...

http://yonkerstribune.typepad.com/yonkers_tribune/2009/08/ed-koch-commentary-illegal-aliens-now-in-federal-and-state-prisons-and-municipal-jails-should-be-deported-to-their-countries.html

Anonymous said...

Jones actually went thru a lot of hand wringing and agonizing over some aspects of SB1070, the possible inroad to a sort of REALID, etc....he had Judge Napiolanto on a few days after the bill was signed, and he asked, (paraphrased) "Well, if there's this problem with the law, then what are the Arizonans supposed to do?"

Jones isn't entirely pleased with the law, and in that sense, agrees with you.

Anonymous said...

You make it sound like there is a decent chance that the ranchers murderer might not be a border breaker......that isn't the case. The evidence points toward someone who disrespected the border, investigators are fairly certain about this

Anonymous said...

SB1070 says that if the cop is already engaged with someone for a prior lawful stop, then the cop can then use reasonable suspicion to inquire into that persons immigration status. Race, by itself, cannot be used as a determining factor- that would be unlawful.

A majority of Arizonan citizens of Mexican descent approve of the law.... about 55% of Arizona's cops are Latino and will be enforcing the law

Producing a Arizona driving permit will satisfy the legal requirement of SB1070.

Anonymous said...

You make it sound like the police will go around asking for citizenship ID,just to check for id and nothing else, and thus violate our rights by breaking the 14th amendment........the cops have to already be dealing with someone for suspicion of some other violation or infraction first, then the reasonable suspicion can kick in, after. Could you please rephrase why SB1070 is unconstitutional by the 14the amendment?

Anonymous said...

Tell me why the Feds shouldn't sue the sanctuary city govt's?

Anonymous said...

http://www.youtube.com/watch?v=M6qOtpNochU

Obama told senator Kyl that he refuses to guard the border, Obama is holding the border hostage, to force upon us an amnesty ( "comprehensive immigration reform" lol).....Obama is doing this , in part, to get votes for the 2012 re-election.

Refusing to do his job for personal and party gain, thus allowing us to suffer and sometimes die, sounds like naked treason to me.

Considering that Obama has lied or has mislead everyone so often in the past, I take Kyl's word for what happended in the Oval office. Also- the Oval office is bugged, and no refuting tape has surfaced in any shape or form...

Anonymous said...

The DoJ is siding with cartel ruled Mexico, a foreign entity. That is the 11th amendment objection, in part.

Anonymous said...

http://www.washingtontimes.com/news/2007/jun/19/20070619-121814-2527r/

Illegals set national forests on fire to divert boder Patrol

S.M. Elliott said...

To all Anons: I've added to the post to address some of the points brought up here.

To that last Anon: I'm sure you can find a truckload of examples of Mexicans Behaving Badly, but you could find just as many of [insert random nationality here]. Not really a valid argument for SB1070.

S.M. Elliott said...

@Paul, the Israeli lobby gun thing is horrifyingly stupid even for Jones, but also kinda hilarious in its stupidity. I mean how does he figure that would work? If you're circumcised you can have a gun? WTH?

Anonymous said...

You open your article with the phrase "dealing with" when a more accurate phrase would be "lawful stop" or some such. 'Dealing with' is a too broad interaction, it might not even involve suspicion of breaking a minor traffic infraction. 'Dealing with' could mean asking for directions, or administering First Aid to someone, etc. So it conveys the wrong impression. "Lawful stop" or some such phrase is a more narrow interaction. When you ask a cop for directions etc. , I doubt that constitutes a "lawful stop" etc.

SB1070 could be abused, just like a host of other statutes could be abused.

The ranchers death is considered by most people and the police to be non-random and probably drug cartel related, which is a consequence of the Feds not doing their job. Whether he was killed by a drug smuggler scout or a crazed illegal alien, the footprints led back to the border.

The large illegal latino community in the country or arizona spec.. - provide cover for the rotten apples, so curbing others crimes is one motive to crack down on the illegals.

Arizona acted, because the Feds refused to hold up their end. Whats the point of insisting that this is a federal jurisdiction matter, when the Feds wont pull their end of the rope? The Feds are part of the problem

Anonymous said...

Besides the evidence that the ranchers killer was connected to the problems with the border....

.....'profiling' is a normal, accepted police procedure. Cops wouldnt be able to do their job without it. The avoidance of racial profiling involves the use of a constellation of factors. SB1070 never mentions race- its about a crime. The law does not target Mexicans, it targets illegals. It applies to Mongolians and Swedes just as much as it applies to Mexicans or El Salvadorans. It can even be used for suspected trespassers from Canada...it is by sheer dint of historical circumstance that most of the people the law will be applied to will be Latino, but this is to expected, since (lo and behold !) Arizona shares a border with Mexico.....would anyone expect the cops there to be nabbing Lapplander nuns instead?

Anonymous said...

SB1070 might involve 'concurrent enforecment' of federal law, plus the Constitution doesn't mention immigration; it talks about naturalization, which is different- so the Supremacy Clause might not completely apply to SB1070.
What we all know is that the Feds have fallen down on the job of border security or entry enforcement etc., and thus the feds promote lawlessness.

Three counties deep in Arizona the feds have ceded back to Mexico one of our national parks- they posted keep out signs, American citizens keep out of their own tax- paid- for forest, this park is now a playground for foreign smugglers.

I think the best Holder and the DoJ can do is have parts of sb1070 stricken; not all of the law will be tossed. Maybe then he will read it, once its whittled down from about 14 pages down to a easier to handle 12 pages.

Anonymous said...

Several states require their citizens to have ID on them-
- the 14th amendment notwithstanding. SB1070 doesn't disregard the 14th, and again, you make it sound as if the cop is very casually involved with someone, when the law is really meant to be a 'lawful stop' type situation. Authorities anticipate that the vast majority of the uses of sb1070 will be for suspected traffic violations, and an Arizonan driving permit will satisfy the law.

You also use 'permenant residents' as if they are not immigrants. What is a PR then if they are not a citizen and also not an immigrant?

PR's are immigrants who must have their papers....lawful resident immigrants must have papers.

Back to the 11th amendment , it is obvious that the lawsuit is something that Mexico wants. The president of Mexico even made a trip here to the US and addressed a joint chamber of Congress , to issue his demands and tell us what to do and how to run our own country ....would you like it if Bush W. addressed Canada's parliament and told you guys to wise up and fly straight? This is what Calderon did after sb1070, and it was an outrage. After Calderon lectured us, Obama treated him to a grand dinner....One of my senators got an earfull from me the next day (I won't talk to the other one, he's a jerk, we got into a fight last year).

There also might be other foreign banker agents out there who own Obama, I dont know about that. I suppose one would have to follow the money to see who or what owns the adminstration or the Feds. Its too hard a task for me to sort out just now, there are a host of special interests out there , flush with cash, needing favors.....

I think Chuck de Gaulle caused a storm once in your country when he spoke there and stirred the Quebec secessionist fire..I cant remember exactly what happened, all I know is the subsequent strife disrupted my vacation.....

so anyway- even if the supremacy clause is successfully invoked, then it might be time for nullification.

Anonymous said...

You make it sound as though Jones thinks the mechanism of a federal lawsuit v. arizona is treason.

its not- and Jones isnt saying such. Jones isnt saying that the Feds can't exercise their right to sue a state by using the proper legal machinery to do so......Jones is saying the motivation behind the lawsuit is what constitutes the treason...

S.M. Elliott said...

@ the last Anon: He cited several Amendments that he believes the lawsuit violates, not just the 11th (but yes, the 11th was the cornerstone of his argument).
Other comments pending. I can't sit in front of a computer all day.

Anonymous said...

Yes I agree with you or your idea of Jones objection- the lawsuit probably violates the Constitution. Your post made it sound as though it was the actual legal mechanism avaialable to the Feds that was the treason. Its not treason to have that legal mechanical option- its the content and intent and motivation of the suit that is bothersome. It was your phrasing that caused our disagreement.

S.M. Elliott said...

random responses:

I have no idea which way this lawsuit will go. There are some strong arguments and favourable elements on both sides. Time will tell.

I'm not going to debate the rancher thing. They have "suspicions" which are being treated like facts, but they have no suspects. At all. When it comes to a murder investigation, the last thing you want to do is make assumptions and pursue them exclusively. Wouldn't it suck if the killer turned out to be a relative, or a neighbor, or some random lunatic with a tan that made him look Mexican? And that person would be would pretty safe, because we'd all assume some smuggler got him...

I say "dealing with" because it doesn't have to be just a traffic stop. For some reason we're all really fixated on traffic stops. The "papers please" can apply to any interaction between law enforcement and people in Arizona: Domestic disputes, disorderly conduct, littering, roadblocks and checkstops, whatever. But yes, whichever Anon brought this up, it does have to be a legal stop. The police are not permitted to stop someone purely on suspicion of being an illegal, particularly as they haven't even figured out how to determine what will constitute "reasonable suspicion" of illegal-immigrant status.
As one Anon made clear, it's going to be damn difficult not to employ racial profiling in AZ. It's not like anyone there is concerned about Italian, Zambian, or Norwegian illegals. Good luck with that.

I have no idea if Jones thinks the lawsuit mechanism is lawful or not, but I'm assuming he does understand it's legal, because he respects the Constitution. He interprets it awfully strangely sometimes, but he respects it. He can't say the supremacy clause is bogus.

Permanent residents are not citizens. When we say "immigrant", we can mean a permanent resident or we can mean a citizen, but we're usually referring to someone who has attained citizenship.

Anonymous said...

Sanctuary cities openly defy federal immigration law....Holder ought to sue these cities too...

sb1070 isnt legally aimed at Mexicans, as race or ethnicity isnt mentioned in the law....

..The 'treason' is the use of the illegals by politicians and others for profit and other purposes. Its a federal offense to break into the USA, yet the feds dont care- illegals are cheap labor for businesses, they keep wages and benefits low here, as well as stuff our jails, flood our schools, and swamp our emergency rooms, where they get free gold plated healthcare while citizens are often turned away. Cops and judges often look the other way when an illegal commits a crime but they will throw the book at a citizen....Each year several thousand arabs or muslims are caught breaking the border too, and the child sex rings on the border are doing a booming business.

When is enough going to be enough?

We need to punish the employers of these illegals and secure the border, which we can do, since we were able to defeat Saddam Hussein twice.....An amnesty will trigger massive 'chain migration,' which will quickly overwhelm the resources of the nation and turn us into a close replica of Mexico... how does THAT help the poor souls who came here ? By making Mexico keep its surplus or overflow ranks, we would actually be doing them a favor, this will force Mexico to face up to its problems. Maybe they will get a revolution out of the deal and sweep out the drug lord oligarchs once and for all...

Anonymous said...

The pro amnesty lobby's allies, the drug cartel bosses and others assocaited with La Raza, et al, have said they will try to assassinate Pinal sheriff Paul Babeu, just because he is trying to stem the invasion that the Feds/amnesty people have encouraged.....Babeu says he will enforce the new law and for this he might get killed- this, while Obama goads the illegals to cross the border, with his attack upon Arizona.
Lets all pray for Sheriff Babeus safety, and we should contact our reps to tell them that we support Arizona... and Wash DC can go to Hell.

Anonymous said...

When the govt treats illegal immigrants better than they treat citizens, how is it that you can formulate the opinion that Americans are rough on legal immigrants?

Americans dont mistreat legal immigrants, generally, .... even if you think so.

S.M. Elliott said...

We need to punish the employers of these illegals

That's the key, I think.

Anonymous said...

Correct- so lets criminally punish Obama, illegal employer no 1, in effect. The naked traitors must go.

Arizona ought to sue the Feds for refusing to do their job, not the other way around...with all the problems we have right now with real unemployment around 16%, the gulf coast crisis, the trillions in debt we owe, etc., Obama and Holder decide to declare war against fellow Americans, just for standing up for themsleves because the DC degenerates wont do anything to help.

S.M. Elliott said...

Well, AZ'll have to figure something out if they lose this suit, of course, but you're right - the real changes have to be made at the federal level.

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