Feds to file suit against AZ imigration law

[Kulaf]

Show me what in the AZ law changes the way the Federal agencies manage their business. Show me where it tries to trump Federal law. All it says is AZ cannot enforce any law to a lower extent than the federal maximum. And all illegals are turned over to the appropriate federal agency.

[Ddrak]

Show me what in the AZ law changes the way the Federal agencies manage their business. Show me where it tries to trump Federal law. All it says is AZ cannot enforce any law to a lower extent than the federal maximum. And all illegals are turned over to the appropriate federal agency.

Did you even bother to read the complaint? It actually spends the majority of its time enumerating at least a half dozen cases where the AZ law explicitly impedes the way the Feds manage their business.

The essence of it is the Federal Government may choose to NOT enforce laws to their maximum extent (in fact, the INA explicitly states that), and the States have no right to intervene with that. It is an essential part of policing to choose when, where and how to enforce the law and the AZ law removes those choices from the Feds in violation of the Supremacy Clause of The Constitution.

Additionally, the constitution gives the Federal Government the sole right not just to set Immigration Law, but also Immigration Policy. This is a clear attempt by AZ to take policy into its own hands, in fact the law directly states that in its goal: "attrition through enforcement".

Dd

[Kulaf]

You really need to read the AZ law. No where does it place any regulation on any Federal agency to fully enforce Federal law. It only requres state agencies to do so and then turn them over the the Feds. The Fed complaint never enumerates any section of the law which attempts to supercede Federal law. It boils down to "OMG DHS will be swamped and they can't handle it!"

[Kulaf]

Allow me to highlight:

A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR
17 OTHER POLITICAL SUBDIVISION OF THIS STATE MAY ADOPT A POLICY THAT LIMITS OR
18 RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL
19 EXTENT PERMITTED BY FEDERAL LAW.

[Lurker]

You don't seem to be understanding the issue even though the last sentence of your previous two posts answer your own question. You also seem not to have read the complaint or Ddrak's post.

[Kulaf]

Read his post.....read the complaint. No one has as yet documented where the AZ law steps on the Feds. Once the AZ officials turn the illegals over the Feds they are free to do with them as they like. No where does the AZ law specify or suggest what the Federal government should do with the illegals once they are in Federal custody.

Can you cite a section of the AZ law which places any mandate on the Federal government to do something other than to process illegals?

[Embar Angylwrath]

The opinions on the board are essentially the lawsuit...

Feds say this obstructs their rights

AZ says show me how.

Notice that racial profiling isn't part of the complanit though.

[Kulaf]

I guess we should look at this from another track. Let's say in Boston the police arrest someone who then turns out to be here illegaly. What do they do now that is different from how AZ wants to do things? My guess is Boston PD would contact the INS and turn them over to INS for processing. How is that different than what AZ plans to do with someone they arrest?

[Ddrak]

I guess we should look at this from another track. Let's say in Boston the police arrest someone who then turns out to be here illegaly. What do they do now that is different from how AZ wants to do things? My guess is Boston PD would contact the INS and turn them over to INS for processing. How is that different than what AZ plans to do with someone they arrest?

The difference is the Feds can tell the Boston PD to let them go and the Boston PD can and will let them go. With the AZ law, they are required to enact the maximum federal penalty at the state level. Like I said:

- States may not enact an immigration policy. The AZ law clearly states it is doing this (even in the part you quoted). Unconstitutional right there.
- States may not preempt federal enforcement of immigration law by enacting their own immigration laws, whether they mirror federal law or not. The AZ law is clearly a state immigration law, which is unconstitutional.
- States may not enact laws which hinder the execution of lawful Federal policy. The Feds have the exclusive right to decide who can and cannot reside within the United States, whether here lawfully or not, and the AZ law is hindering that exclusive right by requiring the harassment of immigrants who may not have entered the country lawfully but have been permitted to stay by Federal policy (see the several points made on asylum seekers who are strictly unlawful but permitted). Unconstitutional.

Those points are fairly solid legally. The weaker point (imo) in the federal case is the idea that states may not enact laws that affect the diplomatic status of the United States as a whole (the part about Mexico getting all pissy). Seems to me that just about any state could enact laws that pissed off some nation. Maybe if the law had the intent of pissing off a nation it wouldn't be constitutional? Dunno - it just seems weak.

So tell me, according to AZ law, what happens when the Feds tell the state troopers they don't want the person? You have a state trooper that is still bound by AZ law to arrest the person and turn them to the Feds but Feds saying they aren't interested and won't accept the person. Unenforceable law.

The AZ law is going to get struck down. It could be remedied but would have to be watered down to almost uselessness. If AZ doesn't want to be part of the United States, they can always secede and enforce their own borders.

Dd

[Embar Angylwrath]

Dd... lots of states have laws on teh books that mirror federal laws, and they enforce them. Kidnapping is a good example. You don't see the Feds screaming about that. Environmental laws are a good example as well. Many states adopt RCRA laws as the standard, and enforce them.

Also, the AZ law doesn't really address immigration policy per se. It's about enforcing laws already on the books. If the AZ law mirrors the US law, then one really can't make a sound argument that its trying to circumvent ppolicy, since the policy is emodied in the law. (Unless the US prosecutors make the admission that US policy is to ignore the law.... but I doubt they'd do that, even though its true).

US Courts here are weird.. it really depends on the judge they get, and as I understand it, both sides are jockeying to get the judge they want. And I'm sure this will get kicked all the way to the Supreme Court (who should have just taken the case in the forst place, tehy have the right to do that if its a US v State issue)

[Fallakin Kuvari]

I'm sure this will get kicked all the way to the Supreme Court (who should have just taken the case in the forst place, tehy have the right to do that if its a US v State issue)

They didn't fast track it because the Federal Government waited so late in this SC session to file anything. I'd imagine if its still a major issue when they reconvene that they'll grab it then.

[Kulaf]

The difference is the Feds can tell the Boston PD to let them go and the Boston PD can and will let them go. With the AZ law, they are required to enact the maximum federal penalty at the state level.

No they are not. Read it. It prohibits say Sheriff Jones from Bumfuck country from releasing illegals on his own. It mandates that all AZ officials must follow Federal laws regarding imigration to the max possible which means the determination of the persons imigration status is determined by the Feds.

Like I said:

- States may not enact an immigration policy. The AZ law clearly states it is doing this (even in the part you quoted). Unconstitutional right there.
- States may not preempt federal enforcement of immigration law by enacting their own immigration laws, whether they mirror federal law or not. The AZ law is clearly a state immigration law, which is unconstitutional.
- States may not enact laws which hinder the execution of lawful Federal policy. The Feds have the exclusive right to decide who can and cannot reside within the United States, whether here lawfully or not, and the AZ law is hindering that exclusive right by requiring the harassment of immigrants who may not have entered the country lawfully but have been permitted to stay by Federal policy (see the several points made on asylum seekers who are strictly unlawful but permitted). Unconstitutional.

- AZ is not enacting an imigration policy. They are doing their duty as requred by Federal law and as stipulated in their law.
- AZ is not preempting Federal enforcement because the determination of a persons legal status to be in this country is not determined by AZ, but by the Federal government as stipulated in their law.
- AZ is not hindering the execution of lawful Federal policy. The Feds have the exclusive right to decide who can and cannot reside within the United States, whether here lawfully or not as stipulated in their law. Once the imigration status is determined then AZ is bound by Federal law as stipulated in their law.

Those points are fairly solid legally. The weaker point (imo) in the federal case is the idea that states may not enact laws that affect the diplomatic status of the United States as a whole (the part about Mexico getting all pissy). Seems to me that just about any state could enact laws that pissed off some nation. Maybe if the law had the intent of pissing off a nation it wouldn't be constitutional? Dunno - it just seems weak.

They would be fairly solid if they weren't directly addressed in the AZ law.

So tell me, according to AZ law, what happens when the Feds tell the state troopers they don't want the person? You have a state trooper that is still bound by AZ law to arrest the person and turn them to the Feds but Feds saying they aren't interested and won't accept the person. Unenforceable law.

Once the legal residency status of the person has been confirmed by the Federal government, and it was determined by the Federal authorities that the person has the legal right to remain in the US or has their status on appeal with DHS then the AZ officials would be bound by Federal law to release the person. The AZ law stipulates that when permissible by Federal law information on these individuals will be maintained I would assume to not further harass or detain people who have previously had their status determined. Again this is all stipulated in the AZ law.

The AZ law is going to get struck down. It could be remedied but would have to be watered down to almost uselessness. If AZ doesn't want to be part of the United States, they can always secede and enforce their own borders.

Dd

I don't believe it will. If anything I think SCoTUS would chastise the legislature for passing laws it did not give the Executive the means to enforce. I do not see anything in the AZ law which can be struck down because it is entirely predicated on existing Federal law.

[Lurker]

The difference is the Feds can tell the Boston PD to let them go and the Boston PD can and will let them go. With the AZ law, they are required to enact the maximum federal penalty at the state level.

No they are not. Read it. It prohibits say Sheriff Jones from Bumfuck country from releasing illegals on his own. It mandates that all AZ officials must follow Federal laws regarding imigration to the max possible which means the determination of the persons imigration status is determined by the Feds.

Once the legal residency status of the person has been confirmed by the Federal government, and it was determined by the Federal authorities that the person has the legal right to remain in the US or has their status on appeal with DHS...

Ddrak's point went completely over your head. Whoooooosh.

From the complaint...

If allowed to go into effect, S.B. 1070’s mandatory enforcement scheme will conflict with and undermine the federal government’s careful balance of immigration enforcement priorities and objectives. For example, it will impose significant and counterproductive burdens on the federal agencies charged with enforcing the national immigration scheme, diverting resources and attention from the dangerous aliens who the federal government targets as its top enforcement priority.

I'm sure Ddrak will say it better than I can, but you keep highlighting how strong the Supremecy Clause argument is and you don't even realize it.

[Kulaf]

I don't believe it will. If anything I think SCoTUS would chastise the legislature for passing laws it did not give the Executive the means to enforce. I do not see anything in the AZ law which can be struck down because it is entirely predicated on existing Federal law.

Yeah just like mine apparently flew over yours. If you pass a law and don't enforce it then it needs to be struck down. Not try to hinder the people helping to enforce it.

I also assume you will be railing against the Freedom of Information Act and how it hinders the government from performing it's job due to the massive requests it receives for information.

[Embar Angylwrath]

From the complaint...

If allowed to go into effect, S.B. 1070’s mandatory enforcement scheme will conflict with and undermine the federal government’s careful balance of immigration enforcement priorities and objectives. For example, it will impose significant and counterproductive burdens on the federal agencies charged with enforcing the national immigration scheme, diverting resources and attention from the dangerous aliens who the federal government targets as its top enforcement priority.

I'm sure Ddrak will say it better than I can, but you keep highlighting how strong the Supremecy Clause argument is and you don't even realize it.

That's tantamount to "we will ignore the law when its convenient for us to do so." The Fedds have also left themselves open to 1) how do they classify a "dangerous" alien, 2) what proportion of aliens in the US do they consider "dangerous", and the big question... 3) How can they determine if an illegal alien is dangerous if they never apprehend them?

[Lurker]

I also assume you will be railing against the Freedom of Information Act and how it hinders the government from performing it's job due to the massive requests it receives for information.

Did Arizona pass it's own Freedom of Information Act that they expect the federal government to follow too?

Here's the thing you keep not understanding, and again I'm sure Ddrak will say it better... If Arizona decides on it's own to enforce federal law to the maximum and turn everyone over to the government, they have usurped the federal governments ability to set priorities.

And nobody is denying that the federal government has the right to set priorities and dictate where they want to apply their limited resources. They have the right to decide not to raid California medical marijuana facilities, for example. And they have the right to go after illegals they consider a danger while not going after every illegal.

The Arizona law interferes with that. You highlight that fact with every single post.

That's tantamount to "we will ignore the law when its convenient for us to do so."

No, it's tantamount to saying the federal government can decide how to use their limited resources. See the medical marijuana example above. I don't remember reading yours or Kulafs outrage over that DOJ decision.

[Fallakin Kuvari]

If their resources are so limited wouldn't it make sense for them to allow states to use their own resources to enforce a federal law?

[Embar Angylwrath]

If their resources are so limited wouldn't it make sense for them to allow states to use their own resources to enforce a federal law?

Bingo. Just like states do in other areas that mirror Fed law... like cross-over state/federal crimes, environmental laws, etc. The Feds don't mind if states enforce mirrored Federal laws... until now. The reason? Because the Feds don't WANT to enforce Federal law, and if thats the case, change the damn law! And I haven't seen a cogent response as of yet to the question of... how do the Feds know an illegal is dangerous if they don't apprehend and evaluate? Its hard to make the argument that Immigration is focusing on the "dangerous" immigrants if they don't know who those immigrants are. Thats a huge hole in their argument.

I will say this.. case law is on the Feds side. Immigration issues have largely been seen by the courts as in the purview of the federal government. The Feds should have focused more on that in their complaint than opening themselves up to why they aren't enforcing laws on the books, why they have selective enforcement of the laws, etc. Because the easy response to selective enforcement is.... you're the Feds. You take tax dollars from the states. You can choose to allocate those tax dollars anyway you choose. There are existing laws on the books. If you think immigration enforcement is important, why won't you fund it?

AZ has a close to even shot at winning this lawsuit. Although I imagine the lawsuit was not filed to win, but merely to get a preliminary injunction that will last though (anyone want to take a guess???) the November elections. Even still, no matter who wins, this will get punted to the SC eventually. I hope they take it up this year if possible. Although they already have a case before them that overlaps this issue. If they issue a broad enough opinion, it may settle this case. If they issue a narrow opinion, this will eventually land in their laps.

Finally... I'm all for an immigration system that makes sense. Guest worker program, closing down companies that knowingly hire illegals, fining those that ignorantly hire illegals, exempting guest workers from federal and state minimum wage standards (but not OSHA standards) and taxing them like a regular US worker, even though they won't be a recipient of some of the benefits of the taxes (disability, unemployment, social security). Provide them with the opportunity to purchase healthcare, the same as any worker. And as long as they are legal workers, allow their children into the public school system (for what its worth). However, no unemployment benefits, no welfare, no AFDC.

[Ddrak]

Dd... lots of states have laws on teh books that mirror federal laws, and they enforce them. Kidnapping is a good example. You don't see the Feds screaming about that. Environmental laws are a good example as well. Many states adopt RCRA laws as the standard, and enforce them.

Kidnapping and environmental issues aren't declared in the Constitution as the exclusive role of the Federal Government. What you don't see is States enacting (for example) their own foreign policies.

Also, the AZ law doesn't really address immigration policy per se. It's about enforcing laws already on the books. If the AZ law mirrors the US law, then one really can't make a sound argument that its trying to circumvent ppolicy, since the policy is emodied in the law. (Unless the US prosecutors make the admission that US policy is to ignore the law.... but I doubt they'd do that, even though its true).

It does address policy. It states quite literally that it is doing so ("attrition by enforcement"). It actually devotes its very first paragraph to explicitly say that AZ is defining an enforcement policy for immigration law. The point isn't that it's US policy to ignore the law but it *is* US policy to not always prosecute to the maximum extent allowed by the law and open up anyone who doesn't do this to civil penalties. Forcing cops and courts to always enforce a law to the maximum allowable penalty is flat out stupid anyway, regardless of the other silliness in the AZ law.

And I'm sure this will get kicked all the way to the Supreme Court (who should have just taken the case in the forst place, tehy have the right to do that if its a US v State issue)

It should go to the USSC and I hope it does. It's definitely a constitutional question.

No they are not. Read it. It prohibits say Sheriff Jones from Bumfuck country from releasing illegals on his own. It mandates that all AZ officials must follow Federal laws regarding imigration to the max possible which means the determination of the persons imigration status is determined by the Feds.

That's not what it says at all. It says that they must *enforce* the law to the maximum federal penalty. Nothing in section one says "only if the Feds also want to enforce it to the same penalty":

16 A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR
17 OTHER POLITICAL SUBDIVISION OF THIS STATE MAY LIMIT OR RESTRICT THE
18 ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT
19 PERMITTED BY FEDERAL LAW.

So if the Feds choose not to enforce to the full extent (which they may do for any number of good reasons) then by law the state cops must attempt to do so anyway. The AZ law is broken.

- AZ is not enacting an imigration policy. They are doing their duty as requred by Federal law and as stipulated in their law.
- AZ is not preempting Federal enforcement because the determination of a persons legal status to be in this country is not determined by AZ, but by the Federal government as stipulated in their law.
- AZ is not hindering the execution of lawful Federal policy. The Feds have the exclusive right to decide who can and cannot reside within the United States, whether here lawfully or not as stipulated in their law. Once the imigration status is determined then AZ is bound by Federal law as stipulated in their law.

AZ is enacting an immigration policy. It says so in the first paragraph of the law. Kinda hard to argue a law isn't setting policy when it says in black and white that its intent is to enact policy.

The legislature declares that the intent of this act is to make
6 attrition through enforcement the public policy of all state and local
7 government agencies in Arizona.

AZ's state officials have the duty (in the area of immigration) to assist federal officials in their enforcement of the law, in accordance with federal policy. Their duty is not to decide the feds suck and set their own enforcement policies which differ from the feds.

AZ is preempting federal enforcement, which has nothing to do with the determination of legal status in the country and everything to do with what you do when you determine someone is unlawfully in the country.

AZ is hindering execution of Federal policy, which includes how the laws which are exclusively in the Federal domain are enforced. The Feds have the right to decide who can and cannot reside in the US, and also have the exclusive right to determine how to enforce the laws and whether they should apply maximum or minimum penalties to whoever breaks that law. I think you're confusing "policy" with "law".

I don't see where the AZ law deals with diplomatic issues, in fact it seems to avoid the entire possibility that their alternative enforcement policy may have secondary international policy effects.

Once the legal residency status of the person has been confirmed by the Federal government, and it was determined by the Federal authorities that the person has the legal right to remain in the US or has their status on appeal with DHS then the AZ officials would be bound by Federal law to release the person.

That's not what I asked. What happens if the Feds say the person is unlawfully in the country, does not have their status on appeal, but they decline to prosecute at this time (which is within their rights)?

I do not see anything in the AZ law which can be struck down because it is entirely predicated on existing Federal law.

Doesn't matter - the states have no rights to set immigration laws whether predicated or not.

Dd

[Kulaf]

That's not what I asked. What happens if the Feds say the person is unlawfully in the country, does not have their status on appeal, but they decline to prosecute at this time (which is within their rights)?

Then the person would be in violation of Federal law and be in the state of AZ and be guilty of misdmeanor tresspass (as stipulated in the AZ law) and presumably jailed and would remain there until the sentence imposed is served. One would then presume they would be released and told they have a certain length of time to leave the state or be arrested again.

For reference:

13-1509. Trespassing by illegal aliens; assessment; exception;
41 classification
42 A. IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF
43 TRESPASSING IF THE PERSON IS BOTH:
44 1. PRESENT ON ANY PUBLIC OR PRIVATE LAND IN THIS STATE.
45 2. IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a).
S.B. 1070
- 3 -
1 B. IN THE ENFORCEMENT OF THIS SECTION, THE FINAL DETERMINATION OF AN
2 ALIEN'S IMMIGRATION STATUS SHALL BE DETERMINED BY EITHER:
3 1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL
4 GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN'S IMMIGRATION STATUS.
5 2. A LAW ENFORCEMENT OFFICER OR AGENCY COMMUNICATING WITH THE UNITED
6 STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES BORDER
7 PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
8 C. A PERSON WHO IS SENTENCED PURSUANT TO THIS SECTION IS NOT ELIGIBLE
9 FOR SUSPENSION OR COMMUTATION OF SENTENCE OR RELEASE ON ANY BASIS UNTIL THE
10 SENTENCE IMPOSED IS SERVED.
11 D. IN ADDITION TO ANY OTHER PENALTY PRESCRIBED BY LAW, THE COURT SHALL
12 ORDER THE PERSON TO PAY JAIL COSTS AND AN ADDITIONAL ASSESSMENT IN THE
13 FOLLOWING AMOUNTS:
14 1. AT LEAST FIVE HUNDRED DOLLARS FOR A FIRST VIOLATION.
15 2. TWICE THE AMOUNT SPECIFIED IN PARAGRAPH 1 OF THIS SUBSECTION IF THE
16 PERSON WAS PREVIOUSLY SUBJECT TO AN ASSESSMENT PURSUANT TO THIS SUBSECTION.
17 E. A COURT SHALL COLLECT THE ASSESSMENTS PRESCRIBED IN SUBSECTION D OF
18 THIS SECTION AND REMIT THE ASSESSMENTS TO THE DEPARTMENT OF PUBLIC SAFETY,
19 WHICH SHALL ESTABLISH A SPECIAL SUBACCOUNT FOR THE MONIES IN THE ACCOUNT
20 ESTABLISHED FOR THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT
21 MISSION APPROPRIATION. MONIES IN THE SPECIAL SUBACCOUNT ARE SUBJECT TO
22 LEGISLATIVE APPROPRIATION FOR DISTRIBUTION FOR GANG AND IMMIGRATION
23 ENFORCEMENT AND FOR COUNTY JAIL REIMBURSEMENT COSTS RELATING TO ILLEGAL
24 IMMIGRATION.
25 F. THIS SECTION DOES NOT APPLY TO A PERSON WHO MAINTAINS AUTHORIZATION
26 FROM THE FEDERAL GOVERNMENT TO REMAIN IN THE UNITED STATES.
27 G. A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR, EXCEPT THAT A
28 VIOLATION OF THIS SECTION IS:

13-707. Sentence of imprisonment for misdemeanor

A. A sentence of imprisonment for a misdemeanor shall be for a definite term to be served other than a place within custody of the state department of corrections. The court shall fix the term of imprisonment within the following maximum limitations:

1. For a class 1 misdemeanor, six months.

13-802. Fines for misdemeanors

A. A sentence to pay a fine for a class 1 misdemeanor shall be a sentence to pay an amount, fixed by the court, not more than two thousand five hundred dollars.

8 U.S.C. § 1304 : US Code - Section 1304: Forms for registration and fingerprinting
.
.
.
(e) Personal possession of registration or receipt card; penalties
Every alien, eighteen years of age and over, shall at all times
carry with him and have in his personal possession any certificate
of alien registration or alien registration receipt card issued to
him pursuant to subsection (d) of this section. Any alien who fails
to comply with the provisions of this subsection shall be guilty of
a misdemeanor and shall upon conviction for each offense be fined
not to exceed $100 or be imprisoned not more than thirty days, or
both.

8 U.S.C. § 1306 : US Code - Section 1306: Penalties
(a) Willful failure to register
Any alien required to apply for registration and to be
fingerprinted in the United States who willfully fails or refuses
to make such application or to be fingerprinted, and any parent or
legal guardian required to apply for the registration of any alien
who willfully fails or refuses to file application for the
registration of such alien shall be guilty of a misdemeanor and
shall, upon conviction thereof, be fined not to exceed $1,000 or be
imprisoned not more than six months, or both.

Aliens and Nationality - 8 USC Section 1373
.
.
.
(c) Obligation to respond to inquiries
The Immigration and Naturalization Service shall respond to an
inquiry by a Federal, State, or local government agency, seeking to
verify or ascertain the citizenship or immigration status of any
individual within the jurisdiction of the agency for any purpose
authorized by law, by providing the requested verification or
status information.