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26 July 2010

Ruling Against Arizona Immigration Law Would Set Broad Precedent Against State Assistance to Federal Law Enforcement

U. S. District Judge Susan Bolton asked Deputy Solicitor General Edwin Kneedler, "Why can't Arizona be as inhospitable as they wish to people who have entered or remained in the United States?"  I assume in the context it was clear she was talking about those here illegally.  The Obama Justice Department is arguing that the Arizona law be declared unconstitutional because it is preempted by federal law because immigration enforcement is an exclusive federal prerogative.  The judge seems critical of this preemption argument in her questioning.  She is being asked to grant a preliminary injunction against the Arizona law to keep it from taking effect while the federal challenge in the courts proceeds.

The Arizona law, SB1070, empowers police to question those they have a "reasonable suspicion" are illegal immigrants and send them to federal authorities for possible deportation.  The government argues that the supremacy clause of the Constitution requires that the Arizona law be ruled unconstitutional.  The fact that the Arizona law in no way contradicts the federal law apparently does not matter to the federal government.  The fact that the Arizona law simply has Arizona police asking the federal authorities to check to see if the person is here illegally and if they are not, they will be delivered to the federal authorities who will decide whether to deport them or not, does not matter.  Clearly, the Arizona law and Arizona police are not taking over the critical decisions of fact or interfering with the decision to deport or not.  They are simply assisting the federal decision makers.

Kneedler also argued that the Arizona law is an interference in foreign policy because it is making foreign governments mad.  Since when do foreign governments get to decide when U.S. laws will be enforced inside the U.S.? 

Kneedler also complained that federal agencies may be overwhelmed with immigration status checks and deportation requests.  The federal government is making the case that they wish to enforce federal law selectively.  That is, for person A, it will be enforced, but not for person B.  Does this mean the personal income tax should be enforced selectively also?  Perhaps the anti-trust laws should be enforced selectively?  Actually, they are.  Should the prohibition against laws abridging freedom of speech be selective?  Clearly the Democrat Congress thinks they should be.  Should the federal laws against murdering Federal judges or Congressmen be enforced selectively?  Ooopps, maybe not that one.

It is a bad principle of law when laws are not enforced equally against all lawbreakers.  If a law is a valid attempt to protect the equal, sovereign rights of the individual to life, liberty, and the pursuit of happiness, as all laws are in a legitimate government, then it must be equally enforced.  If it cannot be equally enforced, then it should not be law.

The Arizona law is clearly constitutional.  But, if it is determined by the courts that the law is unconstitutional, this will have a silver lining.  Basically, the finding would set the precedent that state cooperation with federal authorities to enforce federal laws is itself an interference with federal preemption!  Given that most federal laws, unlike immigration law, are unconstitutional because they are not based on powers given to the federal government, which are few and mostly pertain to foreign powers, and that many such laws are actually interferences with the state police power or the rights retained by individuals, it would be a great thing if the states and local governments could use the precedent of the overthrow of the Arizona law as justification for not assisting the federal government in any enforcement of federal law.  Federal authorities would then clearly have the books loaded with laws they could not enforce, except very selectively and infrequently.  That may result in the People understanding that these laws should not be on the books and need in most cases to be repealed.  It may result in many police powers being returned to the states and many rights violations by the federal government being ended.

How did these many federal infringements come about?  Teddy Roosevelt.  He was the first President who believed and even said that if he thought something should be done, he would do it if the Constitution did not explicitly tell him he could not do it.  Since the Constitution was written under the philosophy that the federal government had few powers and they were each carefully enumerated, there was no effort to create a list of the infinite number of powers an illegitimate government or a megalomaniac President might claim, but which were denied to them.  By inverting the purpose of the Constitution, Teddy Roosevelt gave himself a clean slate to become the tyrant he wished to become.  He observed that he saw no problem with a huge concentration of power in the hands of one leader.  Neither did Wilson, Franklin D. Roosevelt, Harry Truman, John Kennedy, Lyndon Johnson, Richard Nixon, Jimmy Carter, Bill Clinton, or Obama.

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