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Drudge ran a classic headline today regarding the decision of the Department of Homeland Security to suspend all existing cooperation agreements with Arizona in light of the Supreme Court’s unanimous upholding of §2(B), permitting authorities to check the immigration status of persons otherwise lawfully detained:

While it is true that the feds want to undermine Arizona as completely as possible, as they always have since SB 1070 was passed, I think the more correct headline should have been:


Keep in mind the Supreme Court’s holding.  The Court unanimously held that there was nothing unlawful on its face with §2(B), and based on what currently was known, it could not be presumed that the law would be applied in a manner which would conflict with federal law (emphasis added):

However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives.

The Supreme Court addressed the issue in good faith, based on an understanding that merely reporting an illegal to the feds was not contrary to federal law or its objectives.[*]

So what did Big Sis do?  Within hours of the Supreme Court’s decision she changed the objectives.

Now it is contrary to DHS’s objectives for Arizona to report illegals on a more frequent basis once §2(B) takes effect.  That’s why the cooperation agreements were suspended.

Voila! The feds create a potential conflict based on conduct the Supreme Court held — based on the facts existing hours earlier — did not create a conflict.

Whether this ploy will work remains to be seen, but I expect it to be argued if and when there is more litigation.

The suspension of cooperation agreements was a slap in the face not only of Arizona, but of the Supreme Court as well.


* I should note that Justice Alito in his partial dissent rejected the notion that preemption could arise from a conflict with “a federal agency’s current enforcement priorities.”


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Henry Hawkins | June 25, 2012 at 8:24 pm

The executive branch has become a brainless loose cannon rolling across the country’s deck.

    I wish I were convinced of the “brainless” part. No election has been held yet, but on the (increasingly likely) chance Obama may lose, there is no reason to believe for one moment that each and every person in this administration will not do as much as is possible to advance its programs over the next four months. Immigration, banking, finance, healthcare, civil rights, environment, energy, taxes, defense, education, labor, unions, spending, trade, foreign policy, welfare, communications, gun control…the list is endless. They mean to leave the fundamentals of their agenda behind. Fixing it will be an administrative, organizational, and legal wasteland and those left with the task will be cursed and tormented ceaselessly and mercilessly every step of the way. I sense a very focused intent.

      OcTEApi in reply to Owego. | June 25, 2012 at 10:47 pm

      They’re scheming criminals, don’t stand them up too tall.

      marnold in reply to Owego. | June 26, 2012 at 3:35 pm

      Yes you see a pattern, it is the pattern of an administration using it’s legitimate electoral mandate to enact policies they think wise. Same thing that has been going on sense Jefferson took over from Washington/Adams. Nothing Criminal here, the feds don’t like a state law and are doing all within their power to make it difficult to execute.Same ol Same ol. We all need to stop calling the other team crooks or we won’t fix the mess we’re in

It would seem that DHS is an accomplice in subverting current on the books law regarding immigration. This would appear to go beyond merely not enforcing the law to being an active participant in violating it. On the face of it, this is like the gun runner scandal, corruption on the face of it.

If the President intends to have open borders let him put forward a vote to congress but willfully violate his oath to uphold the law is inexcusable. If the law becomes subject to some base political calculations what is to say, someone will not be prosecuted for murder for whom they know? this is a dark path indeed, where oaths, duties and honors are shrugged aside when inconvenient for today’s objectives.

It is a shame that not even Romney has come out against this crap. It simply reenforces my view that he is obama in republican clothes

    ALman in reply to imfine. | June 25, 2012 at 10:38 pm

    I would like to give him the benefit of not wanting to repeat McCain’s mistakes. However, my concern is that he may be overly cautious.

    If you’re in a “street fight,” don’t think you can abide by the Queensberry rules and still win.

    If Romney has “a tiger in his tank,” he needs to let it out soon, very soon.

      imfine in reply to ALman. | June 25, 2012 at 11:35 pm

      This has nothing to do with being a street fighter, this has to do with having a liberal as a republican candidate. If we had Newt up there he would be bashing Obaam’s brains in over his conduct the past week.

My post earlier today knocked the Court’s use of “principles” and “discretion” with respect to the Federal Government in its ruling. Well, here we are, only hours later; a real, live demonstration of governmental discretion and a principled stand.

A_Nonny_Mouse | June 25, 2012 at 8:43 pm

So let me get this straight:

When the Executive Branch refuses to enforce a law, no “mere citizens” have standing to make them do their job, right? And, the individual states can’t make them do their job either, right? Congress could perhaps impeach –somebody– if they could determine who-in-particular was refusing to uphold the law (but they don’t really want to rock the boat, so nothing but political grandstanding actually happens).

So nobody can make them do their job. And nobody can do their job for them. And if we Americans don’t like it, we can keep trying and trying and trying every 4 years to elect somebody who WILL do the job; except that once the new electees get to Washington “something weird” happens and they turn into jaw-boning bureaucrats who refuse to “offend” even illegal aliens.

Swell. Just … swell.

    Could the Founders ever have envisioned that the country would have to deal with branches of the government in ways we have the last thirty (30) years or so? Courts “gone wild”! Legislatures “gone wild”! An Executive Branch “gone wild”!

    Maybe, the structure of our government is too encumbered and slow to respond in these fast-paced times. What recourse do the people have while those at the “helm” insist on steering toward the “rocks”?

This will only enrage Americans all that much more

Samuel Keck | June 25, 2012 at 8:54 pm

Hey, all of you illegal aliens in America: Obama’s Big Sis has just declared “AMNESTY IN ARIZONA”

Do I have to draw you a Google map on how to get there?

This administration answers to no one. Forget that pesky balance of powers stuff.

    Frank Scarn in reply to windbag. | June 25, 2012 at 9:18 pm

    “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
    “Faithfully execute the Office” The importance of electing someone to the office whose yes is his yes, whose no is his no. He took the oath, but disregards it, yet calls himself a “Christian” (gag).

    Congress, the people reps, makes the law. This One thumbs his nose at the people’s self-government and does what he wills. When the people themselves don’t know their own Constitution what you get is the Democrat Party.

Certainly not all of the causalities suffered that day, but 1,177 Americans died on the USS Arizona. I get the impression that if THEY could 44 and 44 Jr. aka holder, would change that name to, the USS No Constitution, USS black panther, or the USS kenya.

“…the Supreme Court’s unanimous upholding of §2(B), permitting authorities to check the immigration status of persons otherwise lawfully detained…


“…based on an understanding that merely reporting an illegal to the feds was not contrary to federal law or its objectives.”

Any rational person would expect this was happening all along, that during the course of a LEO doing his job that they would be checking lawfully detained persons for possible violations of other laws.

IF found or suspected they’re illegally here in the US then call the feds…
Big Sis: we won’t answering the phone, in fact we’re yanking it off the wall.

Justice Scalia’s opinion, partly concurring with, but mostly dissenting from, the majority opinion — in Arizona v. United State

Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.

No, You Rock!

This is simple.

All the illegals the Arizona LEOs pick up…

go on a bus to Kulhifornia.


    ohiochili in reply to Ragspierre. | June 26, 2012 at 10:04 am

    My Sometimers Disease has struck again, and I cannot remember the Sheriff’s name, but he said they will just bus the illegals to ICE’s doorstep.
    Really would be satisfying to see DC over-run….

      Ragspierre in reply to ohiochili. | June 26, 2012 at 10:23 am

      Sheriff Joe Arpaio. Thing is, my solution works better. ICE can…and apparently WILL…just let them walk away.

      Giving them a nice ride to Kuhlifornia…say a nice sanctuary city like LA…would be effective. Win-win.

    sablegsd in reply to Ragspierre. | June 26, 2012 at 8:58 pm

    No, on a bus to DC.

At some point in the course of human events, a legal insurrection must become an illegal insurrection …..

    n.n in reply to walls. | June 25, 2012 at 10:22 pm

    I was thinking the same thing. However, we have arrived late to this conclusion. These people seem bent on forcing a constitutional crisis. Perhaps the next election will provide legal remedy to these extrajudicial actions and civil rights violations.

MaggotAtBroadAndWall | June 25, 2012 at 10:07 pm

So, we have the person in charge of Homeland Security issuing edicts that she will no longer cooperate with local law enforcement officials to, effectively, improve our Homeland Security. Why are we paying the person in charge of Homeland Security to pursue policies that do not lead to improved Homeland Security – and in fact may very well lead to a less secure homeland?

She ought to be fired for dereliction of duty. But there’s absolutely no way to hold a lawless administration accountable (until November) so that won’t happen.

    I recall an earlier concern for overpopulation. Ostensibly, the same group now welcomes unmeasured (illegal) immigration. Perhaps they do not understand the concept, or when their warnings (i.e. request for funds) were ignored, they were captured by their vindictive nature.

Obama likes to flip the bird at the Supreme Court, doesn’t he? He needs the illegals to vote for him in November.

    PhillyGuy in reply to PhillyGuy. | June 25, 2012 at 10:38 pm

    I just saw on Greta that Homeland Security has established a toll free hotline to report cases of suspected racial profiling in Arizona. So here we go already.

Professor, thank you, as always, for your astute analysis….not only is this suspension of cooperation agreements a slap in the face of Arizona and the Supreme Court, it’s also a slap in the face of all law-abiding Americans…and it feels like my blood is boiling!!!

Roughly half the country is cheering “their” president on. lt is the half most adversly affected by his agenda. The dems just do what dems do. l believe this is more a reflection on 50 years of GOP “Me to but”. As Mark Lavin has said , we’re going to have to drag our asshole candidate across the finish line. God this Crap is old!

The executive branch is deliberately breaking the social compact on several fronts.

yellow rose of texas | June 25, 2012 at 11:18 pm

We win they lose. That is our goal. I am more committed than ever.

It is appalling on just how bad this gang of lawbreakers in DC are rubbing our nose in their doodoo.

The anointed one chooses what laws to enforce while on the other hand threatened the SCOTUS to uphold the will of the Congress regarding O’bammyCare. Just how hypocritical is that???

Not only am I repulsed at the actions of this administration, I equally disappointed with the administration’s inaction regarding immigration enforcement, economy and voter fraud.

What is worse is the Attorney General who is charged with enforcing the nation’s immigration laws is actually acting to subvert this function by refusing what he was charged to do by an Act of Congress along with his co-conspirators Big Sis and O’bammy himself.

“We are a nation of laws” does not seem to apply here…

Mr. Obama cares about only one thing…..results. He is interested in changing our country and the means to that change have no basis upon law, tradition, morality, or principle. Results are his “god”. The sooner you understand his bent, the more likely it is that a unified solution to his “results” will follow.

BannedbytheGuardian | June 26, 2012 at 12:47 am

Not noted here is how does this affect Sanctuary Cities? The inverse to Arizona’s law is to prevent local officers & police from determining if a federal offense is in action.

In global terms the whole situation is bizarre as almost everybody else enforces nation entry. I cannot think of any country that does not. Most also have exit permits so they get you going out if they missed you getting in.

Clearly the problem is elsewhere not in this ruling nor Arizonas.

It’s amusing to go back and read her views on the border and the need for border security, etc. when SHE was governor of AZ. Horrible hypocrite.

What am I missing?

Just because the feds are entitled to preempt the states in certain areas, doesn’t mean they have to. For example, prior to the Copyright Act of 1976, a plaintiff could bring a copyright infringement claim under either federal or state law.

Why doesn’t someone in Congress propose a law to give states more latitude in immigration?

    BannedbytheGuardian in reply to Jingo. | June 26, 2012 at 3:09 am

    Because they will be able to use it to prevent people from other states moving in .

    Many Southern states would love to bar Yankees . Many mid west states would like to bar Californians & nobody wants Detroit detritus or corrupt Chicagoans after the deluge.

    If the states can’t do it -the citizens will & local police & officials will not know which way to turn. This Supreme decision will not be of assistance.

I’m not a lawyer but I was a detective for a generation dealing with these issues and the politics behind it.

I told anybody who would listen that the AZ law was bad and would get hammered.

It was poorly written from the outset as its mission statement was cloudy. What was the goal? To arrest and prosecute illegals or to get illegals out of AZ?

Oklahoma wrote a similar law in 2007 I think with no challenges because it targeted businesses. Four hundred thousand illegals left OK.

This is a simple case of politicians trying to make a “stick in the eye” point to the feds and asking the police to handle the heavy lifting. The SP didn’t buy it.

Lawyers are only as good as they are, they aren’t gods, MANY government lawyers aren’t that good. I read the law, studied it, talked about it and decided it was badly written.

If you want illegals out of your state,STOP giving them reasons to come. They are just trying to make a better life for themselves, just like we do. If they can’t find work, free benefits or education, they will go where they can find it (like California). Offer free stuff and they’ll swarm you like sombrero wearing locus.

OK understood the human nature of it and applied it correctly.

Sadly, now that the SP made the rulings, other states will suffer. As my State Atty buddy said, bad laws make for bad case law.

    BannedbytheGuardian in reply to archer52. | June 26, 2012 at 6:47 am

    I have it that there has had to be a series of acts post HB 1804 from 2007. These have had to target specific problems eg the Criminal Alien Law & indeed in 2011 new illegal alien laws were passed -some of which were based on Arizona’s.

    That the Feds have not challenged it is because the Ds think they have chances in Arizona whereas they have none in Oklahoma.

    The feda are also scared after McVeigh going after their employees. & blowing them up.

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.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

Why does Napolitano look like she has her nose up someone’s behind?

where blaming Bush is somewhat fitting.
why anyone would think brushing of a law presented by Biden after OKC bombing, updating it to give more power to feds, then harpooning the USA with it would be a good idea is beyond me.

I don’t feel enough has been written, or proper analysis conducted, in regards to this new set of “Laws of Principle” handed down from On High yesterday.

Hence, I’m not done.

Mindful that every SC ruling, in some way, changes law. However, the real danger is the “opinions” attached to the majority opinion. They typically outline Constitutional principles that justify the ruling.

These opinions are then used to establish case law–and grounds for new litigation in unrelated cases. It’s like having a brand new Constitution, and all existing laws can be weighed and measured using this new case law as a template….

I bring to your attention a thoughtful piece written by KrisAnne Hall.

An excerpt:

According to Kennedy, the sole authority to determine whether an illegal alien is to be detained or deported rests in the Attorney General: “[T]he Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States…the Attorney General will issue a warrant.” Kennedy then reminds everyone that all who are enforcing these laws are “subject to the Attorney General’s direction and supervision.” In what version of the Constitution did he find this?

Again: laws are “subject to the Attorney General’s direction and supervision.”

…Sayeth the new and improved U.S.Constitution

Henry Hawkins | June 26, 2012 at 9:48 am

The root of this is Obama’s political pandering to hispanics, a group he otherwise ignores. By refusing to enforce laws against illegal immigration, and by refusing to allow individual states to do it themselves, the living, breathing, working, tax paying citizens who reside along the US/Mexico border now have three choices:

1. Pack up and leave for an interior state, no matter the losses.

2. Take whatever crap comes their way from across the border; absorb all damages, injuries, deaths, etc.

3. Take the law into their own hands.

If they opt for #3, how ironic will it be, how tragic, and how boneheadedly stupid, when the federal government sends in forces to quell the illegal vigilanteism after having refused to address the illegal border crossings, a refusal that directly caused the vigilanteism? And all of it based on nothing more than Obama playing politics.

The man’s a political moron. He proceeds on panderings, ignorance, and spite.

    Browndog in reply to Henry Hawkins. | June 26, 2012 at 10:03 am

    Your “No.3” was said to be one of the political objectives in Fast & Furious.

    …making Mexico so dangerous, it’s citizens would flee north for the safety of the U.S…

    I will no longer use the term “far fetched” when referring to this White House.

Could someone with a legal background explain to me whether a writ of mandamus could be used to force the government to enforce the law? If I understand correctly, a writ of mandamus is an order by the court to do what you are supposed to do. Couldn’t AZ apply for one?

    Browndog in reply to Daryle. | June 26, 2012 at 1:05 pm

    I’ve seen others suggest just that.

    However, I cannot for the life of me understand why someone wouldn’t believe that too would be ignored.

And here I thought the Federal Government was created at the convenience of the Member States.
Ahh…. silly me.

I suggest that Arizona authorize in rem forfeiture for the fruits of illegal immigration or for the fruits of aiding or abetting illegal immigration. Much as is done with illegal drugs. I realize this is a fairly extreme remedy, but if the Feds won’t enforce the law nor allow the States to, it is one of the few choices left.