Arizona counter sues Feds over immigration.

[JoeTheJuggler]

I am still waiting for some definitive evidence that the feds are deliberately or negligently not enforcing federal immigration laws.

That's the thing that steams me most. People routinely say that the federal government isn't enforcing their laws, when that's simply a false statement of fact.

What they mean is that they disagree with federal policy, and they wish the feds didn't have the authority to set a uniform national policy. It's just dishonest rhetoric when they say the fed isn't enforcing the laws.

And it also ignores the fact that federal immigration policy (including enforcement policy) has to balance concerns beyond the concerns of a state--such as affecting foreign relations and foreign trade.

In fact, current federal enforcement, which focuses on removing criminal illegal aliens, has resulted in record high levels of removals (deportations and such) and almost certainly has contributed to the reduced crime rates in certain geographic areas (including Arizona).

 

[drkitten]

What they mean is that they disagree with federal policy, and they wish the feds didn't have the authority to set a uniform national policy. It's just dishonest rhetoric when they say the fed isn't enforcing the laws.

And it also ignores the fact that federal immigration policy (including enforcement policy) has to balance concerns beyond the concerns of a state--such as affecting foreign relations and foreign trade.

Well, to be fair, a lot of the "concerns" that get balanced should not, in fact, be concerns and are arguably illegal -- such as the "concern" of large employers that hire illegals that they have a cheap, exploitable labor force. Arizona is not a huge agricultural state and doesn't really need farm labor, but they're on one of the main immigration corridors for illegal farm labor.

Or to make it even more blunt, Wal*Mart relies extremely heavily on illegal labor (as some of the recent busts have made clear to everyone except the senators from Arkansas). So the senators from Arkansas have a different set of priorities than the ones from Arizona.

 

[JoeTheJuggler]

Well, to be fair, a lot of the "concerns" that get balanced should not, in fact, be concerns and are arguably illegal

Oh I agree.

That was pretty much my point--though I didn't make it very clear. The fed really is the only entity whose concerns count in establishing a uniform national policy. By definition, any other concerns are at least extra-legal since there is only one authority that can set the policy.

But again, the claim that the states have the right to enforce immigration laws because the fed doesn't enforce is preposterous. When they say the fed doesn't enforce laws, they really mean they disagree with federal enforcement policy. Disagreeing with federal policy certainly doesn't give a state the right to preempt federal immigration authority.

 

[Biscuit]

I don't think Arizona will be happy until things flare up into an all out race war.

As an Arizonian (until pima county forms its own state) I hope this never occurs.

Pierce et al in the state house don't actually want this, it would cost their big business donors to lose billions in cheap labor. Its just another cheap political stunt at the expense of people that have been used and abused by american capitalism for decades. Instead of dealing with our real problems Arizona is once again proving to be the meth lab of american democracy.

Not saying that lots of mexicans haven't had success and a better life in America but our industries have been riding off their backs at much greater profit for too long now. The last thing we will ever do is get rid of all illegal immigrants, we can't afford to.

 

[drkitten]

Oh I agree.

That was pretty much my point--though I didn't make it very clear. The fed really is the only entity whose concerns count in establishing a uniform national policy. By definition, any other concerns are at least extra-legal since there is only one authority that can set the policy.

Well, "the fed" is supposed to be responsive to the individual interests of the individual entities that comprise it; Arizona has a pair of senators that represent the interests of the state of Arizona, and North Carolina has a pair of senators that represent its interests, and the Justice Department is supposed to be responsive to both of them. In practical terms, it may be more responsive to the Carolinians because there's more of them. And if the interests of North Carolina demand lax enforcement of immigration,.... well, that's something the fed has to reconcile.

The problem is that at least in theory the interests of North Carolina shouldn't demand lax enforcement of laws. If the interests of a Mafia kingpin demand that that he be permitted to bribe jurors,.... well, the whole reason we have laws is for them to be enforced. Jury tampering is illegal if you're a mafioso. For that matter, paying off the police department so they look the other way is illegal if you're a mafioso. But if you're a senator from North Carolina, interfering with the Department of Homeland Security is just serving the interests of your constituents.

When they say the fed doesn't enforce laws, they really mean they disagree with federal enforcement policy.

No, they're saying something stronger. They're staying that the federal (non)enforcement policy is wrong and arguably illegal.

 

[JoeTheJuggler]

No, they're saying something stronger. They're staying that the federal (non)enforcement policy is wrong and arguably illegal.

The "wrong" part is what I've already said. That's the same as saying they disagree with federal policy (that is, they think it's wrong).

They're cloaking it in an argument that federal policy is illegal (that is, that the fed isn't enforcing its laws).

So in your terms, I would say their claims that the fed is doing something illegal (that somehow triggers a state right to preempt) is simply false and disguises an honest argument that they disagree with federal policy (that is, they think it's wrong).

I might disagree with a municipal ordinance--I might think it's wrong--but that doesn't give me the authority to nullify that ordinance or supplant it with one of my own creation. (NB: this is an analogy comparing my relationship as an individual to the city with the relationship of a state to the federal government. It's not exact, but just meant to point out that disagreeing--thinking something is wrong-- doesn't give someone any new legal authority.)

 

[TragicMonkey]

No. A state cannot set foreign policy. A state building a wall along an international border would certainly affect foreign policy. (For that matter, the CC clause gives the federal government authority wrt interstate borders too.)

"Affect" foreign policy isn't the same as "set" foreign policy. Seems to me that if they build the wall a hundred yards inside their own borders there's not much the feds could do to stop them. What grounds would they have? "This structure, contained entirely within your state borders, upsets the feelings of a foreign power"? As long as they let traffic through at points and don't block off access entirely, why not?

 

[JoeTheJuggler]

Well, "the fed" is supposed to be responsive to the individual interests of the individual entities that comprise it

And that responsiveness is reflected largely in how we choose the people to fill the various offices of the federal government. Like it or not, Obama won the election to be the Chief Executive Officer.

Being responsive to the interests of those entities doesn't mean that if one of those entities thinks the federal government isn't being responsive that a state now has the right to preempt federal authority.

Calling the enforcement policy a non-enforcement policy is dishonest. As a matter of fact, any reasonable measure of enforcement (number of deportations, arrests, etc.) shows that enforcement is at an all time high level. The claim that they don't enforce laws really means they don't enforce them at all. If they mean "not enough" then we're back to the idea that they simply disagree with the policy (they think it's somehow wrong). And it's an especially weak argument given that enforcement is at an all-time high level.

The main trouble with asserting that it's non-enforcement or that the federal government doesn't enforce the laws is that it's an unsupported statement of opinion dressed up as a statement of fact.

 

[JoeTheJuggler]

"Affect" foreign policy isn't the same as "set" foreign policy.

I don't think the case law makes that distinction. If a state can undermine federal policy, it has effectively set a different policy (even if that policy is nothing more than the destruction of existing policy).

In fact, I think the word most often used in the SB1070 lawsuit on this point was "undermine".

ETA:

What grounds would they have? "This structure, contained entirely within your state borders, upsets the feelings of a foreign power"? As long as they let traffic through at points and don't block off access entirely, why not?

Doing those things isn't in a state's authority. It is clearly reserved for the federal government. If there is any conflict (and there is), the state cannot preempt the fed. States also can't require passports or establish tariffs or conduct customs inspections, etc.

 

[TragicMonkey]

I don't think the case law makes that distinction. If a state can undermine federal policy, it has effectively set a different policy (even if that policy is nothing more than the destruction of existing policy).

In fact, I think the word most often used in the SB1070 lawsuit on this point was "undermine".

But what policy of the federal government would be undermined by building a barrier? Isn't the current policy to keep illegal aliens out (hence the illegality of them being illegal aliens)? I thought the argument was whether the feds were effectively enforcing a policy, not that there wasn't one or that it was the opposite of what Arizona wants.

 

[Alferd_Packer]

I think we should sue the federal government for failing to protect us from the invasion of zebra mussels. And don't even get me started on Kudzu!

Emerald Ash Borer, White nose syndrome (affects bats), purple loosestrife, Snakehead, Asian carp, Starlings, etc, etc, etc.

 

[JoeTheJuggler]

Emerald Ash Borer, White nose syndrome (affects bats), purple loosestrife, Snakehead, Asian carp, Starlings, etc, etc, etc.

Yep. I'm certain this is what Article IV Section 4 means by saying the federal government shall protect each state from invasion.

 

[JoeTheJuggler]

But what policy of the federal government would be undermined by building a barrier? Isn't the current policy to keep illegal aliens out (hence the illegality of them being illegal aliens)?

Not entirely. The current federal policy balances enforcement with interests of foreign relations, crime, humanitarian concerns, cost/benefit of various enforcement schemes and so on. The policy Arizona wants to establish is pretty much purely attrition through enforcement. That Arizona argued it was only trying to execute federal policy doesn't wash.

Even though the specifics of the issue with this hypothetical are a little different, Bolton's injunction decision treated the same issues of federal policy. In fact, I think your hypothetical would be an easier matter to decide than some of the points of SB 1070 that were enjoined.

http://tucsoncitizen.com/mark-evans/files/2010/07/sb1070boltonruling3.pdf

 

[thaiboxerken]

The State of Arizona wants the feds to prevent people from illegally coming into the state. And since the feds are demonstrably unable to do that, they want to be legally able to (try to) do it themselves. What horrible, evil, racists bastards.

What's really interesting is that your sarcastic and snide post is accurate.

 

[thaiboxerken]

The Obama administration has enforced anti-illegal immigration laws more often and more consistently than the Bush administration. Illegal immigration is trending downward. However, AZ is trying to make it seem otherwise. The facts simply do not support AZ's case here.

 

[JoeTheJuggler]

The Obama administration has enforced anti-illegal immigration laws more often and more consistently than the Bush administration.

In fairness, I think the current enforcement policy started under Bush. Any major changes Obama has made has been to appease the right.

But yeah--enforcement levels in recent years have been higher than ever in history.

 

[drkitten]

The "wrong" part is what I've already said. That's the same as saying they disagree with federal policy (that is, they think it's wrong).

They're cloaking it in an argument that federal policy is illegal (that is, that the fed isn't enforcing its laws).

So in your terms, I would say their claims that the fed is doing something illegal (that somehow triggers a state right to preempt) is simply false and disguises an honest argument that they disagree with federal policy (that is, they think it's wrong).

I might disagree with a municipal ordinance--I might think it's wrong--but that doesn't give me the authority to nullify that ordinance or supplant it with one of my own creation.

No. But if an ordinance is being selectively enforced for improper reasons, I can sue to have the situation corrected.

(NB: this is an analogy comparing my relationship as an individual to the city with the relationship of a state to the federal government. It's not exact, but just meant to point out that disagreeing--thinking something is wrong-- doesn't give someone any new legal authority.)

And it's quite a good analogy. Merely disagreeing with the ordinance doesn't give you standing to set it aside, but if you can show actual impropriety -- in fact, if you can plausibly claim actual impropriety -- that will give you standing to have a court examine it and to have the court demand it be set aside.

 

[JoeTheJuggler]

And it's quite a good analogy. Merely disagreeing with the ordinance doesn't give you standing to set it aside, but if you can show actual impropriety -- in fact, if you can plausibly claim actual impropriety -- that will give you standing to have a court examine it and to have the court demand it be set aside.

However, if your "legal" argument that the ordinance is being improperly enforced (and be clear--we're talking about a legal argument, not just opinion) is really just a cloak for the opinion "I don't like this ordinance", your suit would probably never get past a motion to dismiss.

[ETA: And even if you had a legitimate argument that the ordinance was being improperly enforced, the remedy as you correctly say, would be for the court to set aside improper prosecutions under that ordinance; it would NOT be to award you as an individual the authority to establish a new ordinance.]

I think wrt to federal immigration enforcement policy, that's what's going on. They say there is something illegal going on, but they really only mean they don't like or disagree with the federal policy.

Again, if they're making a legal argument against the fed, the burden is for them to prove their theory of the case. I don't think they've even come up with a coherent legal theory of the case much less provided evidence for it.

ETA: And even if it were true that the federal government weren't executing its own policy (something which definitely isn't true), I still haven't seen any reasonable legal theory that would then allow a state to take over that authority.

 

[Alferd_Packer]

The biggest whine seems to be that the Feds have not finished building all the border fences yet.

http://www.scribd.com/doc/48600178/Arizona-immigration-counterclaim

but according to this, the Arizona portion was largely complete by 2009.
http://www.cbp.gov/linkhandler/cgov/newsroom/highlights/fence_map.ctt/fence_map.pdf

 

[JoeTheJuggler]

Similarly, Brewer once said that the majority of illegals were drug mules. You can make just about any case if you're allowed to make false statements like this. (At least that one didn't go unchallenged. I've heard the "federal government doesn't enforce its own laws" claim repeated by members of Congress without being challenged.)