Based on reports of the hearing before the federal District Court Judge yesterday, it appears that the provision of the Arizona immigration law requiring law enforcement to verify immigration status is likely to survive, while other aspects creating independent state criminal sanctions will not.
This outcome — with the caveat that a Judge’s comments do not necessarily predict the outcome — makes sense legally. There is no interference with the federal administration of the immigration laws if the state, after confirming that a person is here illegally, merely turns the person over to federal authorities.
This circumstance would be no different than many types of federal crimes in which local law enforcement turns suspects over to the feds. It would then be completely up to the feds whether to enforce the law.
If this is indeed the outcome, then Arizona will have the equivalent of the Rhode Island Executive Order, albeit the Arizona law would apply to all law enforcement not just the state police.
While the survival of this aspect of the Arizona immigration law would still outrage opponents, the practical effect would be to allow federal authorities to nullify the state law in practice by refusing to take custody of or prosecute those turned over by state authorities.
Indeed, this is what happens sometimes in Rhode Island, when the State Police notify federal authorities and there are no outstanding warrants on the person.
My expectation is that if the ruling goes as currently expected, and the status check provision alone survives, the Obama administration will refuse to take into custody anyone who is turned over by Arizona authorities who is not already wanted for a crime or who was not picked up in the course of committing another crime.
Call it nullification. Or better yet, willful disregard of the law.
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Related Posts:
Hey, Rhode Island Already Checks Immigration Status At Traffic Stops
Saturday Night Card Game (The Arizona Immigration Bill Is Not Racist)
Leadership by the Wilfully Ignorant
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Comments
Your comments are the first I've read about the possible outcome of the suit. Can the states sue the Federal Government, if the Feds do nothing with the arrestees, for willful disregard of the law?
Good Morning Bill,
Would not Arizona be on sound legal footing to detain illegal aliens arrested under 1070 in jail until such time as ICE takes custody?
And if ICE takes custody then sets them loose… well, that opens another kettle of fish for Obama politically, would it not?
-VotingFemale
if obama/holder order bureaucrats not to enforce the law, then they're impeachable
Good luck with the impeachment idea. Yes, you are 100% correct, but to expect this Congress in particular (being D-controlled is your first sign that the Constitution is no longer relevant) to impeach and try wayward federal officers is laughable. These people no mean their Article VI oaths than Obama meant his special presidential oath. Until the people elect honest, in the Christian sense of honest, people, this will continue.
Why can't citizens begin filing suits against the federal government (Homeland Security and Congress) for not enforcing our laws – most notably as they are collecting taxes in order to provide agencies to supposedly enforce these laws. Citizen Suits/Enforcement Suits – which are allowed under our environmental laws (Clean Air Act in 1970). It would seem if we as private citizens are able to directly sue the federal government in order to protect the "environment"; we should have the right to file suit in order to protect our "country"?? Congress gave the right to environmentalist – it would seem that this has set precedent???
"In the U.S., a citizen suit is a lawsuit by a private citizen to enforce a statute."
I don't believe there is one American that wouldn't have "standing" as very clearly each on one of us was harmed by the lack of immigration enforcement that lead to the 9/11 attacks on our Country. Further, we can show that there is a continued threat to us based purely on the recent unsuccessful terrorist attempts.
The Arizona lawsuit is based on what "might' happen – in the case of immigration enforcement – we've already seen what happened by the lack of enforcement and the threat is imminent. Seems like a much stronger case………………
One other "nullification" that the Department of Justice has recently implemented is to actually close down subscriptions for a specific on-line federal initiative called "BIET" or Basic Immigration Enforcement Training), a program that is specifically intended to train local police in the proper handling of illegal immigrants.
Ed Morrissey at HotAir has linked a few times to the existence of that federal program, which simply gives the lie to the fundamental premise of Holder's legal argument — that the federal government has preempted the issue.
As Ed notes, if that is so, then why did the federal Justice department develop a free, on-line training program for local police officers under the "COPS" (Community Oriented Policing Services) program, if the federal government had entirely preempted the issue?
Here is a partial description of the program copied from the federal Justice Department's website:
. . .
A rising immigrant population in the U.S. has led to a dramatic increase in local, state, and tribal law enforcement encounters with both legal and illegal immigrants during routine police duties. As immigration continues to affect interior communities, there is an increasing demand for law enforcement officers to have a working knowledge of immigration law and policy.
BIET is a highly interactive, self-paced multimedia training program that addresses the immigration knowledge requirements of local, state, and tribal law enforcement officers. BIET addresses a wide range of topics including:
•False identification
•Identifying valid identification documents
•Consular notification
•Diplomatic immunity
•Nonimmigrant visas
•Immigrant and nonimmigrant status
•Law Enforcement Support Center resources
BIET was developed by Cameron University and Advanced Systems Technology, Inc. with funding received from the U.S. Department of Justice COPS Office. The pilot program was available for free to the first 500 officers from law enforcement departments.
. . . .
But now the Justice Department has suddenly closed out the ability for local police to obtain this free, on-line training.
A notice appearing at the top of the program's web page:
Notice: The subscription limit for the Basic Immigration Enforcement Training (BIET) pilot program has been met at this time and enrollment is now closed. Please refer to the link below for new information regarding the BIET program. Thank you and we apologize for any inconvenience.
Gee, makes you wonder, doesn't it?
I would be surprised if the federal courts would rule against Arizona enforcing federal law. Indeed Arizona would be in violation of the supremacy law if it willfully failed to concurrently enforce Arizona law along with federal law. Professor correct me if I am wrong but does not the supremacy Clause (Article VI, Clause 2) mean the federal legal structure is supreme over state law, not that the States (as sovereign entities) are inferior to the federal government?
The Obama Administration's policy of partial or selective enforcement does not alter the relevant federal statute so Arizona in order to comply with its constitutionally required mandate must enforce the immigration laws as published concurrently with its own statutes. In addition to the Supremacy Clause there are other clauses in the constitution that support Arizona. Among them is the constitutional obligation of the federal government to prevent of invasions of the various states and the constitutional prohibition against un-apportioned taxes (Article 1) which is exactly what the Obama's Administration's policy is for Arizona and the other border states.
An interesting question would be if ICE under the Obama Administration policy refuses to take custody or takes custody and cuts lose an illegal alien could Arizona sue the the federal government to uphold its own statutes as published and for reimbursement to Arizona for its added costs resulting from the federal government refusal to enforce its own statutes? Could individuals be able to sue the federal government for harms created to them by the Obama Administration refusal to enforce the federal legal code?
I think that's right, Professor. OTOH it will create a record of how many illegal aliens have been picked up for crimes and how the administration has refused to enforce the law. Right now, this is all hidden.
And once those figures become known the propaganda about poor grape pickers coming here to feed their families is finished.
While incarcerated, expect Az judges to then increase sentences for relatively small offenses and more Arpaio type tent prisons to be created.
Great post. Agree completely.
It wouldn't surprise me a bit if the administration would willfully disregard the law: John Morton, head of ICE indicated in May that they would not necessarily process illegals referred to them by Arizona.
The Arizona state website coud show three counters, (1) Illegal immigrants turned over to ICE, (2) the number accepted by ICE, and (3) the number prosecuted or deported by ICE.
So if they dont bother taking custody of the illegal immagrants, doesnt that just stregthen the states case in making laws and hurt the Feds arguement?
The whole reason that the AZ(and RI and OK) make the laws is the failure on the federal part.
From my experiences as an immigrant and who has worked to get many relatives approved for legal immigration, what this administration is trying is to treat immigration as purely a criminal check issue – like at airports and for buying guns. If a person is clear, then they have the "natural right" to enter and reside in the USA, in as many numbers as can be processed. The major thing stopping them is they wish this to be true only for Hispanics and it is difficult to write a law in that way. So for now they enforce the law strictly for all except Hispanics.
This post is better than others I've seen at this site.
However, what it doesn't do (and it's not at all alone) is try to figure out a workaround. The counter idea in comments would certainly be effective to a good extent, but if you want to actually have an impact you have to intellectually engage the other side and show their supporters how they're wrong.
See the tips here. That's not an "informational" post; it's a post telling you what you can actually do. If you can't do one or more of those, at the least you can tell your friends.
I think we've jumped about 3 steps ahead, first, where does it say the cops CAN'T check someones legal status now—it doesn't, they can now AND Arizona's law doesn't change that. Second, the Arizona law all but mandates EVERY person of Hispanic origin, to carry proof on them, they are American or I guess they get "detained" or "jailed" until they can prove it. Can ANYONE, ANYWHERE tell me what the outrage would be if EVERY American was held to this standard. As much as illegal immigration ticks me off, this law does ZERO to fix it and takes away the rights of Americans of Hispanic descent to be free in this country, you know, that thing our troops have fought for, for a couple of hundred years.
"The said…
I think we've jumped about 3 steps ahead, first, where does it say the cops CAN'T check someones legal status now—it doesn't, they can now AND Arizona's law doesn't change that. Second, the Arizona law all but mandates EVERY person of Hispanic origin, to carry proof on them, they are American or I guess they get "detained" or "jailed" until they can prove it. Can ANYONE, ANYWHERE tell me what the outrage would be if EVERY American was held to this standard. As much as illegal immigration ticks me off, this law does ZERO to fix it and takes away the rights of Americans of Hispanic descent to be free in this country, you know, that thing our troops have fought for, for a couple of hundred years.
July 24, 2010 2:31 PM"
You are entitled to your opinions but not your facts. First the law as published states that any valid ID is to be considered proof of legal residency. Second federal law requires ALL aliens to carry ID on their persons at all times and thirdly as a practical matter ALL Americans are subject to an ID check and verification when stopped by the police for a legitimate reason.
Really, this all comes down to Arizona arresting the illegals and then keeping them until they can be transferred to federal jurisdiction.
If the feds refuse to take jurisdiction, the good folks of Arizona could just give them a bus ticket to DC.
The People's Republic of San Francisco used this idea to clean their streets of the homeless back in the 90’s, when they sent them to Antelope Oregon to join up with the famous Bhagwan Shree Rajneesh.