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Arizona Immigration Decision (Andy McCarthy dissects Bolton decision-not good.)
National Review ^ | July 28, 2010 | Andy McCarthy

Posted on 07/28/2010 12:45:31 PM PDT by greyfoxx39

Wednesday, July 28, 2010

Arizona Immigration Decision   [Andy McCarthy]

On a quick read, the federal court's issuance of a temporary injunction against enforcement of the major provisions of the Arizona immigration law appears specious.

In essence, Judge Susan Bolton bought the Justice Department's preemption argument — i.e., the claim that the federal government has broad and exclusive authority to regulate immigration, and therefore that any state measure that is inconsistent with federal law is invalid. The Arizona law is completely consistent with federal law. The judge, however, twisted to concept of federal law into federal enforcement practices (or, as it happens, lack thereof). In effect, the court is saying that if the feds refuse to enforce the law the states can't do it either because doing so would transgress the federal policy of non-enforcement ... which is nuts.

The judge also employs a cute bit of sleight-of-hand. She repeatedly invokes a 1941 case, Hines v. Davidowitz, in which the Supreme Court struck down a state alien-registration statute. In Hines, the high court reasoned that the federal government had traditionally followed a policy of not treating aliens as "a thing apart," and that Congress had therefore "manifested a purpose ... to protect the liberties of law-abiding aliens through one uniform national system" that would not unduly subject them to "inquisitorial practices and police surveillance." But the Arizona law is not directed at law-abiding aliens in order to identify them as foreigners and subject them, on that basis, to police attention. It is directed at arrested aliens who are in custody because they have violated the law. And it is not requiring them to register with the state; it is requiring proof that they have properly registered with the federal government — something a sensible federal government would want to encourage.

Judge Bolton proceeds from this misapplication of Hines to the absurd conclusion that Arizona can't ask the federal government for verification of the immigration status of arrestees — even though federal law prohibits the said arrestees from being in the country unless they have legal status — because that would tremendously burden the feds, which in turn would make the arrestees wait while their status is being checked, which would result in the alien arrestees being treated like "a thing apart."

The ruling ignores that, in the much later case of Plyler v. Doe (1982), the Supreme Court has emphasized that

Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State's economy generally, or the State's ability to provide some important service. Despite the exclusive federal control of this Nation's borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns. [Emphasis added.]

Furthermore, as Matt Mayer of the Heritage Foundation notes, the Fifth Circuit federal appeals court similarly held in Lynch v. Cannatella (1987) that "No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation's immigration laws."

However this ruling came out, it was only going to be the first round. Appeal is certain. But the gleeful Left may want to put away the party hats. This decision is going to anger most of the country. The upshot of it is to tell Americans that if they want the immigration laws enforced, they are going to need a president willing to do it, a Congress willing to make clear that the federal government has no interest in preempting state enforcement, and the selection of judges who will not invent novel legal theories to frustrate enforcement. They are not going to get that from the Obama/Reid/Pelosi Democrats. 



TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: aliens; andrewmccarthy; arizona; gloatingleftists; illegals; immigration

1 posted on 07/28/2010 12:45:37 PM PDT by greyfoxx39
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To: brytlea; Diana in Wisconsin; Kakaze; Tammy8; unkus; metmom; Cap Huff; svcw; leapfrog0202; Concho; ..

Political Ping


2 posted on 07/28/2010 12:46:19 PM PDT by greyfoxx39 (Rush "They hate me because I am the most prominent, effective and unrelenting voice of conservatism")
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To: greyfoxx39
Susie Q is a Klintoon (x42) appointee...

Go figure...

3 posted on 07/28/2010 12:47:56 PM PDT by Wings-n-Wind (The main things are the plain things!)
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To: greyfoxx39

I can see November from Arizona.


4 posted on 07/28/2010 12:49:34 PM PDT by onyx (Sarah/Michele 2012)
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To: greyfoxx39

Nope...Conservatives will be angry...most Americans love the courts, they will believe that AZ was wrong and Obama was right.

Never count on the American people, or the ballot box to save us.


5 posted on 07/28/2010 12:50:51 PM PDT by roses of sharon (I can do all things through Him who strengthens me. Philippians 4:13)
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To: greyfoxx39

I guess there is a reason why I am not a governor of a state. If I was, I would do the following:

1) arrest the judge that made the decision, based upon the refusal to uphold the constitution.

2) implement the enforcement of the constitutional law based solely upon the 10th amendment.

3) activate the state national guard and deploy them to repel any federal agency that tries to arrest and/or imprison anyone that enforces the laws of the independent state in accordance with the 10th amendment.

4) tell fubo to go to hell.

that is why I cannot be elected to run a state


6 posted on 07/28/2010 12:50:55 PM PDT by joe fonebone (They will get my Fishing Rod when they pry it from my cold dead fingers)
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To: Wings-n-Wind
...and more nuanced than John Kerry on a secret interstate yacht mission.
7 posted on 07/28/2010 12:51:25 PM PDT by WOBBLY BOB (drain the swamp! ( then napalm it and pave it over ))
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To: greyfoxx39

Do what Obama does when a judge blocks your actions ... Just do it anyway.


8 posted on 07/28/2010 12:51:25 PM PDT by Tarpon (Obama-Speak ... the fusion of sophistry and Newspeak. It's not a gift, it's just lies.)
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To: Wings-n-Wind

You know what they say eh? The only good democrat is a %#$# democrat.

%#$# = former...other words may also fit


9 posted on 07/28/2010 12:51:48 PM PDT by Friendofgeorge ( SARAH PALIN / LOU HOLTZ 2012 DREAM TICKET)
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To: greyfoxx39

However this ruling came out, it was only going to be the first round. Appeal is certain. But the gleeful Left may want to put away the party hats. This decision is going to anger most of the country. The upshot of it is to tell Americans that if they want the immigration laws enforced, they are going to need a president willing to do it, a Congress willing to make clear that the federal government has no interest in preempting state enforcement, and the selection of judges who will not invent novel legal theories to frustrate enforcement. They are not going to get that from the Obama/Reid/Pelosi Democrats.


The last paragraph is spot on...except that its not only Obama/Reid/Pelosi that are the problem......there are too many in the GOP who support Illegal Alien Amnesty...and need to be voted out

Starting with John McCain in Arizona....

If a candidate is not 100% committed to DEPORTING ILLEGAL ALIENS....they support AMNESTY. If you vote for a candidate that supports AMNESTY...YOU support AMNESTY.

Its time to rid our political system of pro-illegal alien politicians, and it needs to start with the GOP.


10 posted on 07/28/2010 12:52:53 PM PDT by UCFRoadWarrior (JD for Senate ..... jdforsenate.com. You either voting for JD, or voting for the Liberal...)
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To: greyfoxx39
Judge Bolton proceeds from this misapplication of Hines to the absurd conclusion that Arizona can't ask the federal government for verification of the immigration status of arrestees — even though federal law prohibits the said arrestees from being in the country unless they have legal status — because that would tremendously burden the feds...

She's nuts. Federal law specifically establishes an agency within DOJ to handle requests from the state for verification of status. Now she says that it is a burden on the feds for the state to make use of the service that the feds set up for the states in the first place?

She's nuts...

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.

The federal code requires that the Attorney General create a database of legal immigrants that local law enforcement can call upon for verification of suspected illegal immigrants. The local law enforcement would not access this database directly, but would go through a liaison within the Justice Department. The federal code says that the Justice Department is to make this system available on a 24-hour basis.

-PJ

11 posted on 07/28/2010 12:54:08 PM PDT by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: greyfoxx39

Wonder how long the appeals process takes. In the interim, SEIU, acorn, laraza will jam the voting booths in November.


12 posted on 07/28/2010 12:54:52 PM PDT by opentalk
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To: greyfoxx39
"We the people..."

....are not LOUD ENOUGH... YET!

*****

It's time to investigate this federal judge,
Along with her staff, associates and clerks, for any and all contact between her office and the USDOJ--
--OR--
Any other administration officials, messengers...
--OR--
Political groups, committees or entities since the AZ Law SB1070 was passed---
--AND--
Certainly during the tenure of this case -- so far.

*****

If she can accept and include an Amicus Curiae brief from a foreign government (Mexico)---
She can dang well listen to the heart beat of the CITIZENS and LEGAL IMMIGRANTS in the District she serves.

/End of rant...

13 posted on 07/28/2010 12:56:06 PM PDT by Wings-n-Wind (The main things are the plain things!)
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To: greyfoxx39
The question that needs to asked is:

Did Judge Bolton read the law before she ruled against it.

Most Marxist/Anarchists did not read the law be speaking against it.


14 posted on 07/28/2010 12:56:06 PM PDT by Uri’el-2012 (Psalm 119:174 I long for Your salvation, YHvH, Your law is my delight.)
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To: greyfoxx39

We know darn well that this judge got a phone call from bo. Evil is running our country now.


15 posted on 07/28/2010 12:56:58 PM PDT by jackv (The darkness hates the light!)
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To: greyfoxx39
Obama's dream, a Hugo Chavez type justice system. We are rapidly working toward a situation where the justice system is a tool of oppression for the regime.

When the people no longer have any confidence in the justice system and no longer support the government by sizable majorities we're are headed toward totalitarian oppression, anarchy or revolution.

16 posted on 07/28/2010 12:57:45 PM PDT by Truth29
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To: greyfoxx39

Bolton’s decision will be reviewed de novo, which means the higher courts are bound by nothing she says. If that’s of any comfort.


17 posted on 07/28/2010 12:59:07 PM PDT by Spok ("Liberalism is more a mood than a philosophy." -Robert Bork)
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To: greyfoxx39
"The judge, however, twisted to concept of federal law into federal enforcement practices (or, as it happens, lack thereof).'

Unfortunately, not this first time this reasoning has been applied by a Court.

18 posted on 07/28/2010 1:00:24 PM PDT by moehoward
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To: greyfoxx39

When the history is written, the Obama administration will be identified as the point where the United States ceased to be a county under the Rule of Law. From the Black Panther case, to this one, and on and on, our country is no longer run by the consent of the governed, but by our Overlords who arrange everything to allow themselves to stay in power. Any law that the Overlords don’t like stays on the books, but isn’t enforced. And no one else is allowed to enforce our laws, either. We had a good run, but it is over. Very 1984.


19 posted on 07/28/2010 1:00:40 PM PDT by La Lydia
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To: greyfoxx39

It’s probably nearing time to call for militia assistance in restoring order to the border.


20 posted on 07/28/2010 1:00:49 PM PDT by Trod Upon (Obama: Making the Carter malaise look good. Misery Index in 3...2...1)
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To: roses of sharon
Can't count on the jury box or the ballot box, and the soap box is only preaching to the choir these days. We're almost out of options.

Scouts Out! Cavalry Ho!

21 posted on 07/28/2010 1:05:23 PM PDT by wku man (Steel yourselves, patriots, and be ready. Won't be long now....)
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To: Political Junkie Too
Her comments about "overwhelming" the federal immigration enforcement bureaucracy is absurd. It merely points out the severity of the problem. Her claim amounts to the assertion that the problem is so bad, the federal government simply can't cope with it. So Arizona better not try.

What this has to do with the "Constitutionality" of the law God only knows. It is nothing more than political muttering, better known as Legislating from the Bench.

Today we have seen one woman overthrow the duly made laws of the Legislature of the State of Arizona, based on her own prejudices and chatty opinions.

22 posted on 07/28/2010 1:11:29 PM PDT by Regulator (Watch Out!! The Americans are On the March!! America Forever, Mexico Never!)
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To: greyfoxx39

TRANSLATION: A Clinton appointee (probably APPROVED by Orrin Hatch, Lindsey Graham, etc) simply ignored/misrepresented/prostituted the law. What a shock!!


23 posted on 07/28/2010 1:14:01 PM PDT by Oldpuppymax
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To: Tarpon
" Just do it anyway."

Arpio has been doing for years.

24 posted on 07/28/2010 1:14:09 PM PDT by moehoward
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To: moehoward

Yeah, I don’t see why Brewer doesn’t implement 287-G statewide ... Surely it would cost less to detain than it would to pay the moochers there free services.


25 posted on 07/28/2010 1:18:34 PM PDT by Tarpon (Obama-Speak ... the fusion of sophistry and Newspeak. It's not a gift, it's just lies.)
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To: Regulator
Constitutionally, I only see where Congress has the power to define "uniform rules of naturalization." It doesn't say anything about enforcement of the law.

Congress can define the rules to become a citizen for all states, but the states still have the power of law enforcement.

I also don't buy the argument that a federal decision to not enforce the law is binding on states to not enforce a law. This judge is saying that the feds affirmatively decided to ignore a law, and therefore that is a decision that the states have to abide, because states forcing the feds to live up to their laws takes away the power of feds to ignore their own laws after they are passed?

She's nuts...

-PJ

26 posted on 07/28/2010 1:19:04 PM PDT by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: joe fonebone

I could not agree anymore, fonebone.

FUBO!

The war has begun.


27 posted on 07/28/2010 1:30:52 PM PDT by Herbster
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To: Tarpon

I don’t know. AZ has been stuck with millions in shortages because the feds don’t reimburse. I still say attrition is the way out of this mess. Make them want to leave the same way they got here. Threaten this law or that. Cops can still impound cars and detain Illegals with or without 1070.


28 posted on 07/28/2010 1:31:30 PM PDT by moehoward
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To: greyfoxx39
feds refuse to enforce the law

US Constitution, Article II Section 3
"[the President] shall take Care that the Laws be faithfully executed..."

Grounds for impeachment.

29 posted on 07/28/2010 1:36:53 PM PDT by garbanzo (Government is not the solution to our problems. Government is the problem.)
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To: Wings-n-Wind
>Susie Q is a Klintoon (x42) appointee...

And, I think, also a McCain comfirmee...

30 posted on 07/28/2010 1:37:15 PM PDT by JohnBovenmyer (Tear down that BARACK-ade!)
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To: moehoward
The author of the law stated that it was a temporary injunction and Bolton allowed the portion of the bill that requires agencies to enforce federal immigration law to the fullest extent to remain in place.

There will be a lot of adjusting going on until SCOTUS settles the matter.

31 posted on 07/28/2010 1:42:04 PM PDT by greyfoxx39 (Rush "They hate me because I am the most prominent, effective and unrelenting voice of conservatism")
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To: greyfoxx39
He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

.

32 posted on 07/28/2010 1:45:51 PM PDT by TLI ( ITINERIS IMPENDEO VALHALLA)
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Another vile, despicable, undemocratic decision from a cheap, agenda-driven political hack in judge's robes. In the hands of those who want a divided, balkanized, hyphenated America, this government is lurching inexorably towards illegitimacy. God help us!
33 posted on 07/28/2010 2:05:34 PM PDT by Godwin1
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To: Political Junkie Too
She's nuts...

Read her bio. Third rate attorney from lightweight schools.

A political hack doing nothing more than the bidding of her masters.

34 posted on 07/28/2010 2:08:42 PM PDT by Regulator (Watch Out!! The Americans are On the March!! America Forever, Mexico Never!)
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To: greyfoxx39

Judge Susan Bolton must be removed from the court. This decision is beyond outrageous.
.


35 posted on 07/28/2010 2:17:35 PM PDT by editor-surveyor (Obamacare is America's kristallnacht !!)
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To: onyx

“I can see November from Arizona.”

.
And I can see an Alaskan November in 2012!

Only one candidate has spoken out in this direction (so far)
.


36 posted on 07/28/2010 2:20:59 PM PDT by editor-surveyor (Obamacare is America's kristallnacht !!)
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To: Wings-n-Wind

It looks like it’s gettinhg to where 0’b and his judges can’t get together as to which foot to shuffle off on fist.


37 posted on 07/28/2010 3:13:47 PM PDT by Waco (From Seward to Sarah)
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To: Political Junkie Too
You can't expect a judge to burden the federal government to do the job it is supposed to be doing. Their too busy writing laws that give them a whole set of new powers which they can selectively choose to enforce.
38 posted on 07/28/2010 3:32:59 PM PDT by eggman (Journolist - All the news we choose to use and abuse.)
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To: TLI
Funny. Those were the very words I was thinking of when I saw this.

My ancestors rebelled against a king over less.

39 posted on 07/28/2010 3:38:19 PM PDT by Regulator (Watch Out!! The Americans are On the March!! America Forever, Mexico Never!)
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To: greyfoxx39

Although the State has no direct interest in controlling entry into this country,

Any state that has a border against a foreign country
or boundry should have a direct interest, if for nothing
else the protection of their own citizens.

If nothing else they could set their own STATE border
INSIDE the national one, call it an agricultural inspection zone etx.

I don’t see the current supremes backing the courts
reasoning but you never know.


40 posted on 07/28/2010 3:47:48 PM PDT by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: greyfoxx39

So the their self-appointed Federal Judge has just ruled in the way they were appointed to rule. Big surprise.

This has absolutely nothing to do with our Constitution and absolute everything to do with the discretion of the Federal Government to follow that Constitution. In the words of Thomas Jefferson:

” That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress.”


41 posted on 07/28/2010 3:52:29 PM PDT by Monorprise
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To: Regulator
Funny. Those were the very words I was thinking of when I saw this.

Same crap, different century.

The endgame will probably be about the same as well.

42 posted on 07/28/2010 5:14:13 PM PDT by TLI ( ITINERIS IMPENDEO VALHALLA)
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To: TLI
The endgame will probably be about the same as well

At this point in history, we can only hope.

But this government is far more powerful and ruthless than any English King. Even the Kings agreed that they were bound by the laws.

Not so with this gang of criminals bent on totalitarianism.

43 posted on 07/28/2010 5:34:57 PM PDT by Regulator (Watch Out!! The Americans are On the March!! America Forever, Mexico Never!)
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To: Regulator
Even the Kings agreed that they were bound by the laws.

Not so with this gang of criminals bent on totalitarianism.

Seems to me it's all in the persons upbringing.

Raised right - act right. Understands being bound by the law.

I wonder what happened to little bammy and his crew…

.

44 posted on 07/28/2010 10:29:08 PM PDT by TLI ( ITINERIS IMPENDEO VALHALLA)
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