Tag Archives: Jan Brewer

The Mystery Of SB1070

I’m stymied. For days, I have been pondering the question of why United States vs. State of Arizona was filed in Federal District Court in Arizona instead of the Supreme Court in D.C. I cannot come up with a reasonable answer. Is the fact so obvious that the District Court has no jurisdiction in this case that everyone assumes that everybody connected with the case must be aware of it, and therefore, there must be a valid reason why the case was filed in a District Court instead of before the Supreme Court?

According to the American Bar Association, there were 1,143,358 lawyers in the U.S. at the end of 2007. My guess is that thousands of them have had some exposure to the U.S. Constitution at some time during their career. Many of them may have actually read it, and some of them are surely intimately familiar with its requirements. Yet, from what I can find out, only one lawyer, a retired attorney in Tennessee has raised the question. In an article in the Canada Free Press, Publius Huldah asserts that only the Supreme Court has the authority to hear the Case involving Arizona and its law, SB1070.

Ms. Huldah bases her theory on Article III, Section 2 of the U.S. Constitution which reads.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”

The Framers intent and purpose is expressed so concisely and clearly in this clause, it is hard to imagine that even the most skilled lawyer could find a loophole invalidating its meaning. This clause is not affected by the Eleventh Amendment giving states sovereign immunity from suits brought by citizens of other states or countries in federal courts. In fact, this clause has never been amended under the Article V process.

By trying this case before a lower court judge rather than before the Supreme Court, as the Constitution requires, the status of state legislatures and the states in general, is significantly diminished in relation to the federal government. By precedent, it further damages the concept of federalism and state sovereignty. More importantly, it marks the end of Constitutional government in the United States. I cannot think of any case in which the clear wording of the Constitution has been so brazenly ignored.

In most instances of judicial activism, hidden meanings, nuances, or heretofore-undiscovered meanings or principles, are found in the Constitution to lend some justification to the court’s activism. This clause does not lend itself to such speculation. To make matters worse, Governor Brewer has indicated a willingness to “tweak” the law in order to make it more palatable to the federal government.

It seems to me, the best course of action by Arizona would be to simply ignore the ruling of the lower court and continue with its plans for enforcement. Doing so would not be in defiance of “the rule of law”; to do otherwise will be. Since the Constitution is the ultimate authority for or against actions by the federal government, to submit to the authority of a lower court in this case is a denial of constitutional law. If there is no constitutional law there is no law, period; and without law, there can be no liberty.

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Another Shot To The Left Foot

Fortunately for America, the left keeps shooting itself in the foot; this time, with said foot firmly implanted in its mouth. I am talking, of course, about the ruling on Wednesday by activist judge Sarah Bolton on Arizona’s SB 1070 immigration bill. While her ruling might seem to be a setback for patriots opposed to the open borders policy of the Obama Administration, it does stoke the fire in the belly of conservatives and other patriots everywhere. If nothing else, the left seems intent on keeping the passions of patriots white hot until the November elections. We need to thank them for that.

More than 70% of the voters support Arizona’s law and a majority of voters nationwide wants their Legislatures to pass similar laws. That is a large voting block for the left to alienate, and is another bone-headed action that could help lead to the destruction of the Democrat Party in the coming two election cycles.

While the court’s ruling is only a temporary injunction until the full case in presented in court, it does for the time being, neuter the Arizona law. The court forbade the police from questioning the immigration status of suspects picked up on other charges. It also prohibited the enforcement of the federal requirement that immigrants have their immigration papers on their person at all times. It also struck down the part of the law dealing with the illegal immigrant’s ability to seek employment and perform work. It leaves in place, however, the right to bring civil suit against sanctuary cities that refuse to allow enforcement of immigration law in their jurisdiction.

Drug dealers, rapists, muggers, carjackers, and so forth can now be bailed out and put back on the street instead of being turned over to ICE for processing and possible deportation, as has been the custom. I suppose that if an illegal immigrant flags down a police car and confesses to being an illegal immigrant, the officer can still provide taxi service to ICE headquarters, although that might be risky since the illegal can always change his mind and claim the officer demanded his “papers”.

This is by no means the final chapter in Arizona’s fight against illegal immigration. All eyes are now on Sheriff Arpiao to see what he will do. He already has a planned crime and immigration sweep scheduled to take place regardless of the outcome of the court case today. Some have suggested that Arizona officials ignore the court ruling and continue with its enforcement plans. This would trigger a constitutional crisis and no one knows what the outcome would be. Frog marching Governor Brewer out of the Governor’s Mansion would certainly be an attention grabber guaranteed to provide at least a couple of day’s material for our friends in talk radio and the talking heads on TV. Even members of the MSM like the New York Times and MSNBC would find it hard to ignore. The next few days are going to be quite interesting.

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Battle of the Century: Obama v. Brewer

Barack Obama to Jan Brewer: “See you in court”

Secretary of State Hillary Clinton announced Friday, in an Ecuadorian TV Interview, that the Obama Administration will sue the state of Arizona over SB1070, Arizona’s new Immigration Law.

“President Obama has spoken out against the law because he thinks that the federal government should be determining immigration policy…and the Justice Department, under his direction, will be bringing a lawsuit against the act,” Clinton said.

Both Hillary and Barack are lawyers so when they agree on something it should be right.  After all, Obama is a Constitution Scholar, according to his press clippings.  Nevertheless, it is a good idea to seek other lawyers’ opinions when considering a legal issue of this magnitude. Therefore, we decided to look at what other lawyers around the country were saying on the matter.

We first read an Op-Ed piece in the Casper Wyoming Star Tribune written by Ryan Frost of the Wyoming Chapter of the American Civil Liberties Union. Mr. Frost wasn’t much help since his opinion on the law was mostly clichés like, “Creating a Police State”— his title for the article, “it betrays fundamental American values” and, “in America, everyone is presumed innocent until proven guilty”. He did get into the meat of the matter, however, with, “this law is un-American because it invites discrimination and undermines our values of fairness, equal protection under the law, and inalienable rights for all”.

To strengthen his argument, he also threw in the reminder that, “America’s history and culture is one that was created largely by immigrants”. Finally, he makes an appeal to the Constitution stating that the law “violates the Constitutional allocation of authority between federal and state governments; the Supremacy Clause makes this clear”, he wrote. Pretty powerful stuff.

Next, we turned to the Charleston, West Virginia Gazette and an article by Sean W. Cook an attorney for Meyer Ford and Glasser in Charleston.  Mr. Cook presented an argument that is a little more convincing. He writes,

“…Beyond the rallies and political battles, though, the Arizona law raises questions involving fundamental constitutional principles that have governed our nation since its inception. Most notable are issues regarding the balance of power between federal and state government and the most sacred individual rights guaranteed by our Constitution…. [It] invokes the legal doctrine of federal preemption derived from the Supremacy Clause of the Constitution. Preemption trumps all state laws directed at specific legal areas already federally regulated or addressed by Congress through legislation, as well as those state laws that conflict with or frustrate the purpose of federal law…”,

Finally, we looked at the Atlanta Journal Constitution and an article by Luis A. Velez, a magna cum laude graduate of Georgia State College of Law. Mr. Velez presents a more balanced view, citing as compelling interests the unemployment rate for U.S. citizens and the increasing Arizona crime rate, but concludes that,

“… [While] these are compelling interests, …since they are federal, not state, matters, I believe they render SB 1070 unconstitutional. The Supremacy clause of the U.S. Constitution states that federal law preempts, or ‘trumps’ state law… [U]nder Article 1, Section 8 of the U.S. Constitution, regulation of immigration and national borders are federal, not state, matters…”

As with these three lawyers, the principle argument against the Arizona law by members of the legal profession is that it violates the Supremacy clause in the Constitution, and to bolster that argument it is claimed that constitutionally, immigration is a federal issue, not state.

I suppose we should cut these lawyers some slack for their shortcomings in understanding the Constitution since law schools do not teach the U.S. Constitution. Instead, they teach case law about the Constitution. That’s kind of like the old parlor game where the guests are lined up and the first person in line is given a message, which he whispers in the ear of the person next to him. That person then whispers the message to the next person, and so on, continuing to the last person, who then repeats the message aloud. Invariably, there will be little resemblance between the message heard by the last person and the message given to the first person.

That basically is how the judicial doctrine of “stare decisis” or binding precedent works. Each time an appellate court hands down a ruling on a constitutional matter it becomes a precedent that must be considered by other courts whenever a similar case comes before it. After over two hundred years of precedents, each building on a previous ruling in a similar case, it is no wonder that there is often little resemblance between the court’s opinion and the text of the Constitution.

For example, Article 1.8.4 gives Congress the power to “establish an uniform rule of naturalization”. Naturalization is not the same as immigration. The former deals with citizenship while the latter deals with residence. The Constitution says nothing about immigration and until the early twentieth century immigration matters were left to the states under the Tenth Amendment.

An objective reading of the “Supremacy Clause” yields a similar result. The Supremacy Clause is found in Article VI of the Constitution which reads,

(6.0.2-3) “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land…and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding”.

The first thing we should notice about this passage is that it is the Constitution, not federal law per se, that is the “supreme law of the land”. In order for federal law to take precedence over state law it must first meet the Constitutional requirement of the Supremacy Clause. That is, it must be a law that is made in “pursuance” to the Constitution. In other words, it must be a law that is necessary for “carrying into execution” one of the enumerated powers. (Art 1.8.18) Immigration law does not meet this Constitutional threshold since it is not necessary for the federal government to control immigration in order to set an uniform rule for becoming a U.S. citizen.

Since immigration is not one of the enumerated powers delegated to the federal government by the Constitution it is a power that is “reserved to the states and to the people“. (Amendment 10) In the end, whether the courts rule in favor of Arizona or the federal government will depend on whether they follow the doctrine of stare decisis or the plain text of the Constitution. It will be an interesting and important case to watch.

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