Originally Posted by spence
Not according to the Federal judge, who believe the AZ law interferes with the Feds ability to set and enforce a consistent policy.
That you disagree with that issue doesn't make it wrong, it's just an interpretation. I'm sure the higher courts will be chiming in soon.
This is just a forum discussion on JohnnyD's Q. Discussion of what the judge decided should include her opinions and their merit. I am not disagreeing with an issue, I am commenting on the propriety of her statements and the egregious disagreements she has with her own instructions.
The Executive Branch primarily asserts that provisions in the AZ ammendments to its already existing law are preempted by Federal law.
The judge states that federal preemption can be either express or implied.
And that there are two types of implied:
FIELD PREEMPTION--where the depth and breadth of a congressional scheme occupies the legislative field. She briefly alludes to the Congress as being the only legitimate author of immigration law, but so much of her rhetoric seems to imply that the Executive branch has that power. It only has such power as delegated to it by Congress. In many instances Congress has expressed a concurrent responsibility between the States and the Federal government in enforcing the immigration laws. It is the intent of Congress, not the Executive branch that should be addressed. It is the Congress that authorized the Executive agencies dealing with immigration (DOJ, DHS, DOS). She dishonestly limits her discussion of State and local constitutional authorization to arrest aliens unlawfully present in the U.S. who have previously been convicted of a felony and deported. She doesn't expand the discussion to show States are permitted to arrest illegal immigrants who have not been convicted of a felony and who have not been deported. The same statute she cites also directs the executive to work at the behest of the States, making it subservient to the States in enforcing immigration law in that instance. The depth and breadth of the Congressional field, when considering the Congressional intent gives far wider scope to State power than that to which the Executive branch wishes to be limited.
CONFLICT PREEMPTION--This occurs when compliance with both Federal and State regulations is a physical impossibility or where State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. ACTUAL AS OPPOSED TO HYPOTHETICAL OR POTENTIAL CONFLICT must exist for conflict preemption to apply. (These are her own legal standards for analysis.) She then bases her decision on hypotheticals, against her own instruction. Notice also, that she says the State law must be an obstacle to . . . the full purposes and objectives of Congress (not the Executive branch.)
She also requires as a legal standard that the U.S. challenge is likely to succeed on its merits. The U.S. (the Executive branch) challenged AZ ON ITS FACE.
The judge's standard for a facial challenge are that it must establish that no set of circumstances exist under which the act would be valid. That a facial challenge must fail where a Statute has a plainly legitimate sweep. That in deciding a facial challenge, courts must be careful NOT TO GO BEYOND THE STATUTES FACIAL REQUIREMENTS AND SPECULATE ABOUT HYPOTHETICAL OR IMAGIONARY CASES. Which is what she did.
I would think a Conservative would argue that the solution is better Federal enforcement, rather than additional legislation that will increase the size of government through State mandates which also may burden local law enforcement.
First of all, a conservative would argue that the Constitution be applied in its original intent.
A DOJ 2002 memo says that States have inherent power, subject to Federal preemption, to make arrests for violation of Federal law. And that it is reasonable to assume that Congress intended that the Federal Government should receive whatever assistance states might provide in identifying and detaining those who may have violated Federal law and Federal statutes should be presumed not to have preempted this authority.
Congress has authorized various agencies to assist in this cooperation (LESC, NCIC, ICE, NSEERS, etc.) The LESC operates 24/7 365 days per year. It was created to assist officers in completing exactly the enforcement duties anticipated under the AZ law. In the past 6 years it has processed nearly 10 million information requests from State and local law enforcement. Over 90% of the info requests are processed electronically in under 10 minutes and require no human contact.
There is no additional legislation. AZ ammended its already existing legislation. The burden that you speak of is their job.
Interfering with Federal priorities and could be construed as the same thing. If the Feds want to focus on drugs, and the local Sheriff is rounding up a hundred day workers to hand over to ICE, you might just have a resource issue.
Just might have is speculation. The Feds and locals have always agreed to cooperate when there is a conflict of interest. It even stipulates in AZ ammendment that "reasonable attempt shall be made, when practicable, to determine the immigration status . . . EXCEPT IF THE DETERMINATION MAY HINDER OR OBSTRUCT AN INVESTIGATION."
So the answer again is to focus on more stringent Federal enforcement which Obama appears to be doing.
-spence
|