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Judicial Activism in Arizona
Center for Immigration Studies ^ | July 28, 2010 | James R. Edwards

Posted on 07/31/2010 8:02:25 AM PDT by T.L.Sink

The legal injunction that blocks key parts of Arizona's enforcement statute from taking effect doesn't pass the smell test. The ruling reeks of politics, not jurisprudence - in other words, judicial activism. The four stricken provisions mirror federal laws, so it's ridiculous for the Justice Department and the Clinton-appointed judge to to claim Arizona creates its own immigration policy. No, the embattled state crafted corresponding laws. And even if the barred measures did go further than federal law, so what? Ever heard of the Tenth Amendment?

(Excerpt) Read more at cis.org ...


TOPICS: Culture/Society
KEYWORDS: aliens; arizona
Arizona 1070 completely conforms to the federal immigration laws that Obama and his colleagues refuse to enforce. But it's an all too familiar story: An unelected federal judge arbitrarily chooses to make law according to her personal ideological biases rather than be a strict constructionist and make a ruling on the merits of the law as written. It's just one more example of the "Imperial Judiciary." Meanwhile, citizens of Arizona are subjected to ever-higher taxes and life-threatening situations due to bankrupt public school districts, insolvent hospitals, social welfare costs, prison incarcerations, and the ravages of the drug cartel. But who cares about any of that if Obama and the Left can get the Hispanic vote?
1 posted on 07/31/2010 8:02:26 AM PDT by T.L.Sink
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To: T.L.Sink

Governor Brewer should enforce SB1070 despite the ruling. Applying SB1070 by ignoring the ruling will merely uphold federal immigration laws the socialists/marxists in the executive and judicial branches refuse to obey in order to destroy our democratic republic and the Constitution.


2 posted on 07/31/2010 8:09:03 AM PDT by Man50D (Fair Tax, you earn it, you keep it! www.FairTaxNation.com)
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To: T.L.Sink
Can some legal eagle out there explain to an electrical engineer how SELECTIVE ENFORCEMENT OF THE LAW is not immediately attacked or at least used as a perfect defense????

If legal immigrants are forced under penalty of LAW to carry all the ID and visas and green cards etc. but ILLEGAL MEXICAN INVADERS are not, it seems there is NO EQUAL PROTECTION UNDER THE LAW as is required by the Constitution!

3 posted on 07/31/2010 8:14:03 AM PDT by Huebolt (i)
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To: T.L.Sink; Man50D

I’m sorry if I seem to be beating a dead horse,but,...

This judge has no CONSTITUTIONAL AUTHORITY to even hear this case.

States can be sued by the Federal government, but only SCOTUS can hear and rule on the cases.

AZ should just ignore the judge and her rulings.

http://canadafreepress.com/index.php/article/25983


4 posted on 07/31/2010 8:14:08 AM PDT by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: T.L.Sink
Governor Brewer is one courageous lady and she has the support of A-M-E-R-I-C-A-N-S of all races. The Obama target is becoming much more clear....his efforts to overthrow all things constitutional and legal to suit his agenda show him to be not only a Marxist but a tyrannical one, also with his own Union Army bought and paid for.

Get MAD America, you've been had!

5 posted on 07/31/2010 8:15:11 AM PDT by yoe ("N" is for NO for Progressives in government.)
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To: Man50D
I don't think this Fed. Judge had jurisdiction and like you say the ruling should be ignored!

U.S. Constitution - Article 3 Section 2

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. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

6 posted on 07/31/2010 8:17:43 AM PDT by Red_Devil 232 (VietVet - USMC All Ready On The Right? All Ready On The Left? All Ready On The Firing Line!)
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To: T.L.Sink

........AZ now has OPEN BORDER ......No I.D. needed ?........


7 posted on 07/31/2010 8:18:56 AM PDT by GitmoSailor (AZ Cold War Veteran -Will the NOV election only be LOST under MARTIAL LAW?)
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To: Huebolt

I’m not a legal eagle, nor are most Americans, but I think we have some common sense. It’s as clear as can be that between a far-left presidency and an out-of-control liberal federal judiciary the law becomes no more than their misinterpretations make it. For example, you mentioned the “equal protection” clause of the Fourteenth Amendment. Nothing makes it more clear than that that affirmative action (racial discrimination) is unconstitutional. But do they give a damn? No, onward with the agenda and to hell with the law!


8 posted on 07/31/2010 8:30:46 AM PDT by T.L.Sink
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To: GitmoSailor

Things are so out-of-control in AZ that even John McCain realizes it now. We went through the amnesty crap in 1986 with Reagan but it only made a bad situation worse because border security was NOT enforced and the result was MORE illegals! The present situation, to quote Yogi, is “deja vu all over again.”


9 posted on 07/31/2010 8:40:31 AM PDT by T.L.Sink
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To: yoe

I think the day of reckoning will come next November!


10 posted on 07/31/2010 8:42:53 AM PDT by T.L.Sink
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To: Red_Devil 232; Man50D

You guys may be right about that but maybe Brewer thinks it’s more pragmatic and less inflammatory to go thru the appeals process to get to the Supreme Court. If so, I think she has a point. The open-borders crowd would have field day if she refused to comply right now.


11 posted on 07/31/2010 8:54:13 AM PDT by T.L.Sink
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To: T.L.Sink
So far as I can tell, the judge based her decision of suppositions, rather than facts. The judge supposed that checking a detainee's immigration status would burden the federal system, amd delay the release of innocent parties. But, since no evidence was apparently taken, the conclusions she drew to support her decision really amount to an abuse of discression, and transparent judicial activism at its worst.
12 posted on 07/31/2010 9:04:33 AM PDT by PUGACHEV
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To: T.L.Sink
You guys may be right about that but maybe Brewer thinks it’s more pragmatic and less inflammatory to go thru the appeals process to get to the Supreme Court.

There is nothing pragmatic by allowing socialists/marxists that much more time of granting amnesty to illegals so they can be come voters thereby ensuring socialists/marxists permanent power.

The open-borders crowd would have field day if she refused to comply right now.

The socialists/marxists will do that as an intimidation tactic regardless of Brewer's response. Brewer is complying. Its' the socialist's/marxists who refuse to comply. They have no intention of playing by the rules. They are using the branches of government to destroy the country. These points need to be stressed.
13 posted on 07/31/2010 9:07:36 AM PDT by Man50D (Fair Tax, you earn it, you keep it! www.FairTaxNation.com)
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To: Bigh4u2

I was amazed when I first read that CFP article. But then I got to thinking... the AZ attorneys are no doubt a bright bunch. Surely they know about the parts of the law cited in that article. I wonder why they didn’t use that in their defense? I suspect there’s a very good reason and I’d like to know why.


14 posted on 07/31/2010 9:20:56 AM PDT by upchuck (Our margin of victory this November MUST ALWAYS BE greater than their margin of fraud.)
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To: T.L.Sink
Center for Immigration Studies = Illegal Immigration enabler research progressives

'Nuff said...

15 posted on 07/31/2010 9:36:25 AM PDT by Publius6961 ("In 1964 the War on Poverty Began --- Poverty won.")
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To: T.L.Sink
Do you, or any other reader, have a link to the full text of the decision by Judge Bolton? I've read a dozen articles about the decision. I'd like to write my column this week on the decision.

But there is this one problem. To do my job competently I have to READ the decision. I know, I know. That's not necessary in the Obama Administration, or in the current Department of (In)Justice. But we have higher standards here at FreeRepublic.

Cordially,

John / Billybob

16 posted on 07/31/2010 9:49:28 AM PDT by Congressman Billybob (www.TheseAretheTimes.us)
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To: Congressman Billybob
Be careful; be very careful.

This site is a 'Rat trap to infect your computer :

daynewz.myip.org

We're looking...

17 posted on 07/31/2010 10:06:08 AM PDT by Publius6961 ("In 1964 the War on Poverty Began --- Poverty won.")
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To: Publius6961
Will this do?

Bolton's Ruling

See also this page.

Bolton Ruling info and links

18 posted on 07/31/2010 10:20:54 AM PDT by Publius6961 ("In 1964 the War on Poverty Began --- Poverty won.")
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To: Bigh4u2

You are beating a dead horse incorrectly. The Constitution does NOT require this case go immediately to the Supreme Court.


19 posted on 07/31/2010 10:24:16 AM PDT by Mr Rogers (When the ass brays, don't reply...)
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To: 1_Inch_Group; 2sheep; 2Trievers; 3AngelaD; 3pools; 3rdcanyon; 4Freedom; 4ourprogeny; 7.62 x 51mm; ..

Ping!


20 posted on 07/31/2010 10:27:35 AM PDT by HiJinx (I can see November from my front porch - and Mexico from the back.)
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To: upchuck

Did you read the information at the link?

It appears that the SCOTUS has ‘original authority’ over any case brought against a State.

Which, if I read it correctly, the lower courts have no jurisdiction over any state and therefore cannot hold hearings or trials when the State is a named plaintiff.

“Article III, Sec. 2, clause 2 says:

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. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction…

“Original” jurisdiction means the power to conduct the “trial” of the case (as opposed to hearing an appeal from the judgment of a lower court).”

“In Federalist No. 81 (13th para), Alexander Hamilton commented on this exact provision of Art. III, Sec. 2, clause 2:

...Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.” Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal….[boldface added, caps in original]’’


21 posted on 07/31/2010 10:29:56 AM PDT by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: upchuck; Mr Rogers

ooops!

Meant to ping Mr Rogers...

Mr Rogers... see post #21


22 posted on 07/31/2010 10:31:44 AM PDT by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: Bigh4u2

I suspect the lawyers working for Arizona have read the Constitution & know Constitutional law. If only the Supreme Court could try the case, I suspect they would have pointed that out by now...


23 posted on 07/31/2010 10:33:35 AM PDT by Mr Rogers (When the ass brays, don't reply...)
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To: Mr Rogers

So then, this article of the Constitution means what? Nothing?

Why would Alexander Hamilton bother pointing it out then?

Is it being interpreted wrong, or just being ignored because of ‘precedent’ being set by earlier cases?

(don’t know.. Just asking)


24 posted on 07/31/2010 10:37:40 AM PDT by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: Bigh4u2

See the article here:

http://law.onecle.com/constitution/article-3/32-original-jurisdiction.html

I’m not a lawyer, but I know enough to realize what seems obvious at first glance is not always true under the law.


25 posted on 07/31/2010 10:40:32 AM PDT by Mr Rogers (When the ass brays, don't reply...)
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To: Bigh4u2

I ought to add that I woke up at 3AM feeling sick, went to take some medicine and read on FR for 15 minutes waiting for the medicine to have some effect. This was discussed on a thread I didn’t bookmark, and multiple lawyers chimed in to say that any competent attorney could tell you that the case is going the right route.

I believe Congress & the Supreme Court have given the lower courts concurrent jurisdiction...but my non-lawyerness is at work. I could have it completely wrong.


26 posted on 07/31/2010 10:45:02 AM PDT by Mr Rogers (When the ass brays, don't reply...)
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To: Bigh4u2
-- Is it being interpreted wrong, or just being ignored because of `precedent' being set by earlier cases? --

Congress and the Supreme Court have colluded to provide joint jurisdiction between SCOTUS and District Courts for most of the cases where the constitution gives SCOTUS (and only SCOTUS) original jurisdiction.

SCOTUS has even turned away acting as trial court in State v. State cases. See Arizona v. New Mexico, 425 U.S. 794 (1976), where the Supreme Court denied Arizona leave to file the complaint.

That case also cites some of the earlier precedent. The gist of the justification for not taking original jurisdiction as the constitution demands is that SCOTUS is too busy and too important to take on trial work, what with all the evolution of the law in the United States.

Additional justification is that SCOTUS sucks at fact finding and conducting trials, so the litigants get a better product in a lower court.

As a counterpoint, one should be aware that Congress can increase the size of the Supreme Court, and that there is no reason the Supreme Court must hear any case "en banc" (all judges hearing the case and contributing to the decision). Trials are decided by single judges, and most appeals are decided by a panel of three.

27 posted on 07/31/2010 10:51:14 AM PDT by Cboldt
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To: Mr Rogers

“Exercise of its original jurisdiction is not obligatory on the Court but discretionary, to be determined on a case-by-case basis on grounds of practical necessity.”

It seems that indeed, the SCOTUS has relinquished some of it’s power to the lower courts. Especially in Civil cases.

Very unfortunate for Arizona, or any other state that wants to pass similar laws.

However, there are other points that can be argued in the Appellate court, such as presumed ‘intent’ of the law.

Something the Federal government would need to prove, which at this point, would be a little hard to do since there currently are no ‘injured’ parties to the suit.


28 posted on 07/31/2010 10:53:52 AM PDT by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: T.L.Sink
TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part IV > § 1226 (Apprehension and detention of aliens) says:

(d) Identification of criminal aliens
(1) The Attorney General shall devise and implement a system—
(A) to make available, daily (on a 24-hour basis), to Federal, State, and local authorities the investigative resources of the Service to determine whether individuals arrested by such authorities for aggravated felonies are aliens;
(B) to designate and train officers and employees of the Service to serve as a liaison to Federal, State, and local law enforcement and correctional agencies and courts with respect to the arrest, conviction, and release of any alien charged with an aggravated felony; and
(C) which uses computer resources to maintain a current record of aliens who have been convicted of an aggravated felony, and indicates those who have been removed.
(2) The record under paragraph (1)(C) shall be made available—
(A) to inspectors at ports of entry and to border patrol agents at sector headquarters for purposes of immediate identification of any alien who was previously ordered removed and is seeking to reenter the United States, and
(B) to officials of the Department of State for use in its automated visa lookout system.
(3) Upon the request of the governor or chief executive officer of any State, the Service shall provide assistance to State courts in the identification of aliens unlawfully present in the United States pending criminal prosecution.

TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part VIII > § 1324(c) (Bringing in and harboring certain aliens) says:

c) Authority to arrest

No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.

TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part V > § 1252c (§ 1252c. Authorizing State and local law enforcement officials to arrest and detain certain illegal aliens) says:

(a) In general
Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who—
(1) is an alien illegally present in the United States; and
(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction,
but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.
(b) Cooperation
The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.

-PJ

29 posted on 07/31/2010 10:55:48 AM PDT by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: Cboldt

Thanks for the info.

I read the link Mr Rogers provided and now see where SCOTUS indeed does relinquish power to the lower courts.


30 posted on 07/31/2010 10:56:09 AM PDT by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: Congressman Billybob

It seem obvious to me that a full legal transcript of the judge’s decision would be readily available if you contacted the appropriate authorities in his judicial jurisdiction. I depended upon legal commentators for a summary of the decision, as most of us are forced to do because of the constraints of time.


31 posted on 08/03/2010 2:14:32 PM PDT by T.L.Sink
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