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Judge Bolton: An F for the Arizona Decision Rewrite It
Special to FreeRepublic ^ | 31 July 2010 | John Armor (Congressman Billybob)

Posted on 07/31/2010 11:37:27 AM PDT by Congressman Billybob

It’s been thirty years, and I still miss the classroom. I taught American Political Theory to mostly seniors, Pre-Law or Political Science majors, that long ago. If any of them had submitted a paper as ill-thought-out as Judge Susan Bolton’s decision on the Arizona immigration law, I’d have given them an F, and made them rewrite it from scratch. Here’s why:

The largest point is that this US District Judge ignored the very case that was presented to her for decision. The federal complaint attacked the Arizona law for only one general flaw. It claimed that the state law preempted federal law, and was therefore unconstitutional.

It is grossly improper for any judge in any case to go outside the pleadings and decide the case on different grounds, and even worse, on non-existent evidence, than was presented in the courtroom.

I’ve seen this sort of behavior at this level, just once before in 40 years at the bar. I had a case in federal court in D.C. asking Judge Stanley Sporkin to enforce the 27th Amendment. That was called the Madison Amendment because James Madison wrote it as part of the Bill of Rights in 1789. But it was not declared ratified by Congress until 1992.

Judge Sporkin did not want to enforce the Amendment against the current Congress. His way of avoiding that was a rambling discourse on congressional corruption, which he had witnessed as an intern, 30 years before. In his decision he wrote that he saw Members of Congress accept cash in plain brown envelopes.

There were three fatal problems with his decision. The pleadings said nothing about corruption in Congress. No one presented any evidence on that subject. Lastly, what any judge pulls out of his/her personal memory is not evidence presented in court and subject to cross examination.

The Court of Appeals did not deal with Judge Sporkin’s non-judicial decision openly, by throwing it out. It tap-danced around his errors by ignoring his opinion and writing a brand-new decision on different grounds. In the case of Judge Bolton’s non-judicial decision, not even that mild corrective is likely from the Court of Appeals.

This case goes next to the Ninth Circuit Court of Appeals in San Francisco. Not only is that the most reversed Circuit of all, it is reversed more often than all the other Appeals Courts taken together. So, it is likely the next decision on the Arizona law will be just as bad as the first one. The final word, however, will be in the US Supreme Court, where one can hope that five Justices will take the Constitution seriously.

Here are the provisions Judge Bolton said were preempted by federal law: to determine the immigration status of someone already lawfully stopped, if there is reasonable suspicion they are illegal. (This is identical to federal law.) To make it a crime not to carry alien registration papers. (Also, identical to federal law.) To make it a crime for illegal aliens to work in Arizona. (It is already illegal for illegals to work anywhere in the US, including Arizona.) To authorize the arrest of anyone where there is probable cause to believe they have committed a deportable offense. (Again, identical to federal law.)

The court then analyses the Arizona law, point by point. Anyone arrested, or legally detained, under the state law “shall be presumed NOT to be an illegal alien,” if they have valid state, tribal, or federal ID papers with them. The court then ignores the language of the law, and reads it to mean that EVERYONE’s status must be checked. Then the court determines that this false reading would overburden the status-checking offices of the federal government.

The court does not note the irony in the federal argument that even legitimate requests for alien identification would “overburden” federal officials. To note the irony would prevent the court from ruling against a state law, because the federal government is incompetent at its chosen tasks.

The court never deals with the point that state and local authorities do have the authority to enforce federal immigration determinations, as long as they do not exceed the requirements of federal law. Several federal decisions around the country approve of precisely this result.

The court then offers as proof of the preemption of state law, that the federal government has been extremely lax in enforcement of laws against employment of illegals, and the use of false documents by illegals. The idea that federal incompetence requires all state and local governments to match its incompetence, has no support in prior cases.

- 30 -

About the Author: John Armor practiced before the Supreme Court for 33 years. John_Armor@aya,yale.edu His latest book, to appear in September, is on Thomas Paine. www.TheseAreTheTimes.us

- 30 -


TOPICS: Constitution/Conservatism; Culture/Society; Foreign Affairs; News/Current Events
KEYWORDS: aliens; arizona; illegalimmigration; judgebolton; ninthcircuit
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I would have commented on the Judge Bolton decision two days earlier, if I'd been able to locate a link to the full text. Ah, well.

John / Billybob

1 posted on 07/31/2010 11:37:30 AM PDT by Congressman Billybob
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To: Congressman Billybob
This case goes next to the Ninth Circuit Court of Appeals in San Francisco. Not only is that the most reversed Circuit of all, it is reversed more often than all the other Appeals Courts taken together.

How long can the 9th sit on it, knowing their decision will ultimately be reversed? Is the original decision in effect while Arizona waits?

2 posted on 07/31/2010 11:41:29 AM PDT by Graybeard58 (A feast is made for laughter, and wine maketh merry: but money answereth all things. Eccl 10 v 19)
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To: Congressman Billybob
From Article 3, Section 2 of the US Constitution:

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.

This idiot woman shouldn't even have heard this case. It should have gone straight to SCOTUS.

3 posted on 07/31/2010 11:42:02 AM PDT by Lurker (The avalanche has begun. The pebbles no longer have a vote.)
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To: Lurker
No, this is not an Original Jurisdiction case. There are only about one of those per year, and this doesn't qualify.

John / Billybob

4 posted on 07/31/2010 11:45:32 AM PDT by Congressman Billybob (www.TheseAretheTimes.us)
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To: Congressman Billybob

save


5 posted on 07/31/2010 11:47:17 AM PDT by goodnesswins (DEMOCRATS LOSE.....America WINS!)
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To: Congressman Billybob
and those in which a State shall be Party

Was the State of Arizona a party to this suit? I must have missed the words "Original Jurisdiction" in my copy of the Constitution. Perhaps I have an outdated one.

6 posted on 07/31/2010 11:47:19 AM PDT by Lurker (The avalanche has begun. The pebbles no longer have a vote.)
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To: Congressman Billybob

What do you think of the move to disbar Kagan?


7 posted on 07/31/2010 11:47:53 AM PDT by patton (Obama has replaced "Res Publica" with "Quod licet Jovi non licet bovi.")
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To: Lurker
This idiot woman shouldn't even have heard this case. It should have gone straight to SCOTUS.

Just who does she think she is? Charlie Rangel?

That is, she is talking psycho-babble explaining the unexplainable, and using enough words to sound like she knows what she is talking about. At least she thinks that she sounds intelligent.

8 posted on 07/31/2010 11:49:37 AM PDT by olezip
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To: Lurker

Sorry meant to say I know I DIDN’T miss the words “Original Jurisdiction”. They’re right there, plain as day. What kind of legal sophistry was used to keep this out of SCOTUS?


9 posted on 07/31/2010 11:51:43 AM PDT by Lurker (The avalanche has begun. The pebbles no longer have a vote.)
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To: LucyT

Ping: Screwing the law???


10 posted on 07/31/2010 11:51:59 AM PDT by danamco (")
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To: Congressman Billybob; All

Just because someone is a judge does not mean they know the law.

this is french outcome decision making. She wanted a result regardless of what the law and constitution state.


11 posted on 07/31/2010 11:52:37 AM PDT by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: Congressman Billybob

Good analysis. It might be useful if you could, separately, also comment on Ms. Kagan’s “qualifications” and send them to deluded republican senators who think she is merely “philosophically different” but qualified for the supreme court. One or more of them seem to be non-lawyers who assume that if you were president of Harvard Law School and solicitor general therefore you must be qualified for the supreme court, a preposterous contention, and a dangererous one.


12 posted on 07/31/2010 11:54:54 AM PDT by Gail Wynand
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To: Congressman Billybob

Bolton is obviously not very smart when it comes to the law. Apparently, she also “decided” that the Federal requirement stating that immigrants must carry their papers with them at all times is “unconstitutional” in her fantasyland.


13 posted on 07/31/2010 11:57:37 AM PDT by FlingWingFlyer (Ich bin ein illegal alien! - Barry Obama standing up with Central and South America against Arizona.)
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To: Congressman Billybob
"The idea that federal incompetence requires all state and local governments to match its incompetence, has no support in prior cases."

IRRC there was similar reasoning in another case regarding the children of Illegals. Plyler? Something to the effect that since the law had been ignored for so long it was unreasonable to start enforcing it now.

14 posted on 07/31/2010 11:57:46 AM PDT by moehoward
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To: Congressman Billybob

The whole thing is nothing more than make them ALL voters, er, citizens, was just a matter of time until the truth came out, blame it on some wee little jerk sitting off in a wee little office. This don’t fly, done by the big little jerk himself..


15 posted on 07/31/2010 11:57:49 AM PDT by gulfcoast6 (GOD IS)
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To: Lurker
The Constitution doesn't use the phrase “Original Jurisdiction.” That's what the Court calls those few cases which meet the definition which is in the Constitution. Such cases are docketed in the Court with the case number of O-###. The cases concerning where Howard Hughes was legally living when he died in flight, were Originals.

Four states were suing each other to decide who would get the state estate taxes.

John / Billybob

16 posted on 07/31/2010 12:01:46 PM PDT by Congressman Billybob (www.TheseAretheTimes.us)
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To: Congressman Billybob
If any of them had submitted a paper as ill-thought-out as Judge Susan Bolton’s decision on the Arizona immigration law, I’d have given them an F, and made them rewrite it from scratch.

SSSHHHHHHHHHHH! or she'll be the next supreme court nominee

17 posted on 07/31/2010 12:04:15 PM PDT by zipper
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To: 1_Inch_Group; 2sheep; 2Trievers; 3AngelaD; 3pools; 3rdcanyon; 4Freedom; 4ourprogeny; 7.62 x 51mm; ..

Ping!


18 posted on 07/31/2010 12:13:39 PM PDT by HiJinx (I can see November from my front porch - and Mexico from the back.)
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To: Lurker; All

What I thought they should have done is summon a 3 Judge Court which is the trial Judge who drew the case, a Circuit Court of Appeals Judge and they pick a District Court Judge from the same state. Then the appeal goes straight to the US Supreme Court. I thought this was a must for challenges to a state statutory scheme.

Secondly, there is no mention (that I could see) in Judge Bolton’s ruling of the 9th and 10th amendments concerning State’s sovereignty.


19 posted on 07/31/2010 12:15:57 PM PDT by shalom aleichem
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To: Congressman Billybob
Isn't this just a symptom of a federal "judge" having to force the facts of a case into the Procrustean bed of a decision that has already been made?

Bolton arrived in the courtroom with her decision (whether on her own initiative, or on orders issued by :others"), and then she had to make up some blather about why her decision was "correct".

We see this same symptom ten years later in the LA Times and Washington Post and Clinton Administration v. Free Republic case. Morrow already had her orders, so she made up some BS about "four points", and ten years later, people are STILL posting full text articles all over the Interwebs, because the Clinton White House-crafted "decision" was tailored to smack down Free Republic.

Hell, I remember reading a full-text LA Times article on the FR "decision" posted on a Lefty website, laughing at FR while they flouted the very "bill of attainder" that apparently only applied to Free Republic...

Perhaps we need a judicial review device to deal with blatant a priori decisions like this.

20 posted on 07/31/2010 12:16:26 PM PDT by an amused spectator (Watching the MSM with Obama is like watching Joslyn James with Tiger Woods)
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To: Graybeard58
-- How long can the 9th sit on it, knowing their decision will ultimately be reversed? --

To answer your question, oral argument is scheduled for November 1. Briefs are due in August.

To answer a question not presented by the OP, "this case" is just the request for a preliminary injunction. The District Court still has to decide the case on the merits. And at least one of the "deficiencies" cited in the decision pertaining to the injunction might be corrected. That is the part of the law that is read as mandating 100% of arrests to be submitted for immigration check, the second sentence of Section 2(B): "Any person who is arrested shall have the person's immigration status determined before the person is released."

21 posted on 07/31/2010 12:21:17 PM PDT by Cboldt
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To: Congressman Billybob

One has to wonder if Judge Bolton read the text of the law.


22 posted on 07/31/2010 12:21:38 PM PDT by smokingfrog (freerepublic.com - Now 100% flag free.)
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To: smokingfrog
One has to wonder if Judge Bolton read the text of the law.

Why would she have to do that?

23 posted on 07/31/2010 12:25:43 PM PDT by an amused spectator (Watching the MSM with Obama is like watching Joslyn James with Tiger Woods)
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To: Lurker
What kind of legal sophistry was used to keep this out of SCOTUS?

I don't think it is legal sophistry. I think you are taking a sentence in the Constitution out of context. If you read it closely, there is a key "and" in the sentence. Meaning that in the scenario that involves an Ambassador "AND" a state, then original jurisdiction applies. This is a boolean construction in which both have to be true for the original jurisdiction to apply. The clause goes on to point out that in all other "Cases before mentioned" (not involving both ambassadors AND a state), the Supreme Court acts as an appellate court, not original court.

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.
24 posted on 07/31/2010 12:26:22 PM PDT by AaronInCarolina
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To: Congressman Billybob
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

25 posted on 07/31/2010 12:28:18 PM PDT by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: an amused spectator
"Bolton arrived in the courtroom with her decision (whether on her own initiative, or on orders issued by :others"), and then she had to make up some blather about why her decision was "correct"."

What's particularly concerning is the quality of that "blather".

26 posted on 07/31/2010 12:35:05 PM PDT by moehoward
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To: Congressman Billybob

Thanks as always for your astute postings.

Don’t you think this was just a case of “damned if you do, damned if you don’t”, so Judge Bolton just punted to get it out of her court? Sort of an “above my pay grade” sort of thing?

Sure looks to me like she decided she’d rather live with a reversal than make a decision that would make the President and AG look bad.


27 posted on 07/31/2010 12:35:52 PM PDT by bigbob
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To: AaronInCarolina

==If you read it closely, there is a key “and”==

There is also a key “comma” in the sentence. There are multiple entities, all being separated by commas. “in the scenario that involves an Ambassador “AND” a state” , you’re leaving out the separation declared by the comma. Dropping the other entities out, the sentence becomes;
“In all Cases affecting those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”

It would seem to me that that “separating comma,” is quite important to the meaning of the sentence.


28 posted on 07/31/2010 12:46:59 PM PDT by Dr. Bogus Pachysandra ( Ya can't pick up a turd by the clean end!)
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To: moehoward
What's particularly concerning is the quality of that "blather".

It's GOOD to be a Life-Time Appointed Federal Black-Robe.

That way, you don't have to be concerned with the insignificant objections of benighted peasants like "moehoward" or "an amused spectator".

29 posted on 07/31/2010 12:49:07 PM PDT by an amused spectator (Watching the MSM with Obama is like watching Joslyn James with Tiger Woods)
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To: Congressman Billybob
The Constitution doesn't use the phrase “Original Jurisdiction.”

Actually it does. 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.

Seems pretty clear to me. SCOTUS should have heard this directly.

L

30 posted on 07/31/2010 12:52:12 PM PDT by Lurker (The avalanche has begun. The pebbles no longer have a vote.)
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To: an amused spectator

Bolton arrived in the courtroom with her decision (whether on her own initiative, or on orders issued by :others"), and then she had to make up some blather about why her decision was "correct".

Of course the fix was in; the AG would not have filed the case if it had not already been fixed.

Let us repeat that, the case would not have been filed in that court by the US Attornay General if the decision had not already been ascertained. This by virtue of that particular Judge, and prearranged argument.

Sad how many accept this, even here on FR, how many legal decisions in the US today are not prearranged agenda.

There is also a much more insidious connection which virtually no one wants to talk about. Susan Bolton is from Philadelphia, research her.

31 posted on 07/31/2010 12:53:28 PM PDT by jnsun (The Left: the need to manipulate others because of nothing productive to offer.)
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To: AaronInCarolina

You missed a comma. Boolean construction doesn’t apply.


32 posted on 07/31/2010 12:53:37 PM PDT by Lurker (The avalanche has begun. The pebbles no longer have a vote.)
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To: Cboldt
"The District Court still has to decide the case on the merits."

Lord help us if Bolton gets to take another whack at it.

33 posted on 07/31/2010 12:59:41 PM PDT by moehoward
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To: Congressman Billybob

Methinks she was more worried about her chances for a promotion than the Constitution.


34 posted on 07/31/2010 1:09:45 PM PDT by freespirited (There are a lot of bad Republicans but there are no good Democrats.--Ann Coulter)
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To: Lurker
You missed a comma. Boolean construction doesn’t apply

If a boolean AND does not apply, then that would nullify the previous paragraph, where numerous cases involving a state (and separately some involving just ambassadors) were stated to be appellate jurisdiction:

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

These are the aforementioned "other Cases" in the subsequent paragraph:

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.

It doesn't make sense to declare numerous scenarios which involve a State to be appellate jurisdiction, and then follow that with a paragraph where one clause is interpreted as meaning all cases involving a state are SC original jurisdiction.
35 posted on 07/31/2010 1:12:52 PM PDT by AaronInCarolina
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To: Congressman Billybob
It occurred to me that it is remotely possible that this was her attempt to punt.
36 posted on 07/31/2010 1:17:10 PM PDT by mad_as_he$$ (Playing by the rules only works if both sides do it!)
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To: AaronInCarolina
"In cases affecting Ambassadors," one idea separated from another idea by a comma then "other public Ministers and Consuls", yet another idea separated by a comma, then "and those in which a State shall be a Party", yet another separate idea with a comma separating it from the previous ideas.

If the Founders meant what you say why didn't they simply write "If a case has Ambassadors, public Ministers and Consuls and a State the Supreme Court has jurisdiction"?

No, those are all separate ideas and only a Lawyer could read it otherwise.

37 posted on 07/31/2010 1:17:58 PM PDT by Lurker (The avalanche has begun. The pebbles no longer have a vote.)
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To: Lurker
No, those are all separate ideas and only a Lawyer could read it otherwise.

So the 1st paragraph of Section 2 is nullified by the 2nd one? Because the 2nd paragraph describes the 1st paragraph cases as appellate jurisdiction. And the 1st paragraph includes cases involving Ambassadors and States as separate cases which are clearly stated as appellate jurisdiction cases. It makes no sense at all to then in the next paragraph declare that any case involving an Ambassador OR any state as having original jurisdiction. It completely nullifies the 1st paragraph of section 2.
38 posted on 07/31/2010 1:24:47 PM PDT by AaronInCarolina
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To: Congressman Billybob
No, this is not an Original Jurisdiction case. There are only about one of those per year, and this doesn't qualify.

Please explain.

39 posted on 07/31/2010 1:25:38 PM PDT by savedbygrace (Rev 22:20 He which testifieth these things saith, Surely I come quickly. Amen. Even so, come, Lord)
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To: moehoward
-- Lord help us if Bolton gets to take another whack at it. --

I think she's thrown her best shot at it. She had plenty of time to ponder the rationale, etc. The decision on the merits is likely to be a very close parallel to the order granting the motion for injunctive relief.

Docket for CV 10-1413-PHX-SRB -- I could not discern any sort of schedule for a decision on the merits. Even the motions for leave to file amicus are just hanging there.

40 posted on 07/31/2010 1:26:37 PM PDT by Cboldt
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To: AaronInCarolina
-- Because the 2nd paragraph describes the 1st paragraph cases as appellate jurisdiction. --

The 1st paragraph is a grant of judicial power, in the aggregate. The 2nd paragraph carves that judicial power into original jurisdiction (which means to try the case), and appellate jurisdiction.

41 posted on 07/31/2010 1:33:25 PM PDT by Cboldt
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To: Cboldt
The 1st paragraph is a grant of judicial power, in the aggregate. The 2nd paragraph carves that judicial power into original jurisdiction (which means to try the case), and appellate jurisdiction.

Then that interpretation would mean that ANY case involving a state would go straight to the Supreme Court. Then why are there so few (according to Congressman Billybob). Seems like the SC would be overwhelmed with cases if all cases involving a state go straight to the SC.
42 posted on 07/31/2010 1:45:15 PM PDT by AaronInCarolina
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To: AaronInCarolina; Mr Rogers
-- Then that interpretation would mean that ANY case involving a state would go straight to the Supreme Court. Then why are there so few ... --

There are few because SCOTUS and Congress colluded to provide joint original jurisdiction, between SCOTUS and lower courts. SCOTUS has the option to take original jurisdiction in any case in which a state is a party (but see limited subject matter jurisdiction in the 1st paragraph).

Hat tip to Mr Rogers, see http://law.onecle.com/constitution/article-3/32-original-jurisdiction.html

43 posted on 07/31/2010 1:57:33 PM PDT by Cboldt
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To: Cboldt

Thanks for the link. I think if I were Jan Brewer, I would appeal directly to the SC.


44 posted on 07/31/2010 2:04:06 PM PDT by AaronInCarolina
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To: Congressman Billybob

Thanks for your analysis. The state of Arizona tells the Federal Government that it will assist the Federal effort to enforce immigration laws. The Federal Government doesn’t want assistance because it would be a burden. Bolton worried about the burden to the poor helpless Federal Government. A couple of things here. First, these people accepted the job, and they must accept the burdens of that job. Second, is there any possibility that these fools will ever understand the burdens to the citizens because of presence of so many law breakers?


45 posted on 07/31/2010 2:07:36 PM PDT by Enterprise (As a disaster unfolds, a putz putts.)
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To: AaronInCarolina
-- I think if I were Jan Brewer, I would appeal directly to the SC. --

I'm of similar mind, that she should take a direct appeal. I'm pretty sure SCOTUS would decline, and that has to be factored into the calculus. SCOTUS is arrogant, with a capital "A," and would likely resent being put in the political spotlight, when Brewer can deflect the attention to the 9th Circuit.

If I was her, I'd also mobilize my state militia, and consider conscription into the national guard or state guard, and assert an armed force against entry other than through federal checkpoints.

I'd be acting to embarrass the crap out of the useless and corrupt federal government.

46 posted on 07/31/2010 2:23:18 PM PDT by Cboldt
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To: Cboldt

If the 9th overturns Bolton, it goes back to her court. Right?


47 posted on 07/31/2010 2:26:57 PM PDT by moehoward
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To: moehoward
-- If the 9th overturns Bolton, it goes back to her court. Right? --

Yes, but only to implement the order described by the 9th Circuit. That order can be just about anything, from "find more facts, then decide again," to "remove the injunction, period."

And keep in mind that the only thing before the 9th is the preliminary injunction enjoining Arizona from enforcing the mandatory effect of the law. The governor can, of course, make it an executive policy for the law enforcement to inquire about the immigration status for 100% of the people it develops reasonable suspicion of. In other words, she can implement by "executive order," rather than by legislation.

Doing so would produce additional facts that could undermine the grounds for much (if not all) of Bolton's decision. For example, ICE does not become overloaded with requests; legal aliens aren't unreasonably detained, etc.

It's hard to keep track of the full game -- news reports tend to isolate attention to small facets, and often to irrelevant facets.

48 posted on 07/31/2010 3:04:29 PM PDT by Cboldt
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To: Cboldt
"Yes, but only to implement the order described by the 9th Circuit."

That's what I thought. And with the 9th's propensity for going against 'the man', there's slightly better than even odds they'll overturn. imho.

On that second point regarding effect of the law. Since the Sanctuary policy provision stood, I can't see how practical application of the law is truly effected, regardless of which way the 9th goes. Aliens are still mandated to carry their papers, officers can still inquire about status as 1070 provided, "when practicable".

I guess that could all change if they ever get around to a decision on merits.

49 posted on 07/31/2010 3:58:39 PM PDT by moehoward
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To: Congressman Billybob
No, this is not an Original Jurisdiction case. There are only about one of those per year, and this doesn't qualify.

I don't understand why Arizona didn't challenge the federal courts jurisdiction in this matter.

Arizona ISN'T trying to make a rule for aliens to become citizens, or to act in a manner contrary to the federal government's authority to make a uniform rule of naturalization.

Arizona is simply doing it's civil duty in relation to the denizens of the State.

The power of naturalization, and not that of denization, being delegated to congress, and the power of denization not being prohibited to the states by the constitution, that power ought not to be considered as given to congress, but, on the contrary, as being reserved to the states. And as the right of denization did not make a citizen of an alien, but only placed him in a middle state, between the two, giving him local privileges only, which he was so far from being entitled to carry with him into another state, that he lost them by removing from the state giving them, the inconveniencies which might result from the indirect communication of the rights of naturalized citizens, by different modes of naturalization prevailing in the several states, could not be apprehended.
George Tucker

50 posted on 07/31/2010 4:34:21 PM PDT by MamaTexan (NO ONE owes allegiance to an unconstitutional government)
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