Arizona’s Immigration Law Gets its Day in Court

December 12th, 2011 at 12:58 pm | 18 Comments |

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Today the Supreme Court announced that it has granted the State of Arizona’s petition to review the Ninth Circuit Appellate decision striking down most of S.B. 1070, healing the controversial state law prohibiting the employment of illegal immigrants and making it a crime for immigrants not to carry evidence of lawful admission to the country.

The law was signed by Gov. Jan Brewer last year. However, at the request of the Obama Justice Department, a federal judge in Phoenix promptly enjoined the State from enforcing it, and the Ninth Circuit Court of Appeals, considered the most liberal of the federal appellate Circuits, agreed most of the law was unconstitutional on the theory Congress preempted the entire field of enforcing immigration violations leaving the states powerless to act.

The Supreme Court will now decide if the Ninth Circuit was correct without Justice Kagan, who recused herself from the case because of her involvement with it as Solicitor General before joining the Court. Her absence means if there is a 4-4 split, the Ninth Circuit’s decision would be affirmed but without a precedent which would bind other courts. However, in June the Court voted 5-4 to uphold another Arizona law requiring employers to use the federal government’s E-Verify program, to check the employment authorization of all new hires. That decision rejected the “preemption” argument. If that 5 vote majority holds, the Arizona law would be upheld, and the decision would bind other federal courts grappling with similar immigration laws enacted in Alabama, South Carolina, Utah, and Georgia and one municipality in Nebraska.

This will likely be the second most watched case of the Supreme Court’s term, after the challenge to the Obama health care law.

Recent Posts by Howard Foster

18 Comments so far ↓

  • MSheridan

    Without getting into the actual merits of the case, if the Arizona law is upheld in the Supreme Court it will be a gift to the Democrats, as Latino voters (even the many who oppose illegal immigration) will likely be alienated by the ensuing anti-immigrant rhetoric and Arizona-style legislation coming primarily from the GOP side of the aisle.

    Contrariwise, if this law is struck down, the decision will be a gift to the Republicans, motivating a lot of GOP voters to turn out in an attempt to get the SCOTUS they want the only way they can.

    Should be interesting to watch, either way.

  • Lonewolf

    Yes, we can certainly count on a Supreme Court that has previously ruled that Corporation = Person, and Money = Free Speech, to once again correctly interpret both the intent and the letter of the Constitution. I look forward to reading their wise decision.

  • Brittanicus

    Instead of the Department of Justice threatening the sovereignty of Arizona, Alabama, Georgia, South Carolina, Indiana and very likely soon North Carolina,, why doesn’t the DOJ chase down the instigators of the growing financial impact of Sanctuary states as California and Nevada. They have taxpayer’s money to outlay on ‘The Fast and Furious’ gun walking fiasco and getting a US border Patrol agent murdered. We need the border sealed, to halt the Middle Easterners disguised as Mexicans entering through the massive open regions of fencing. That is a National Security issue, which will eventually lead to a massacre of innocent victims. Instead of taking States to court for its policing laws; the Administration should occupy itself, with enforcing the laws already on the books. Subsequently, the original architect of anti-illegal immigration laws of Arizona as its policing laws is to be heard by the Supreme Court. Whether or not sovereignty states has a right to enact its own laws, when the federal government admits dismal failure to protect American citizens from invasion. That Obama’s judiciary stating that a shortage of dollars makes it impossible to secure the border tight. This is an absolute ridiculous, when they are pandering to foreigners with $113 Billion dollars annually in financial support.

    With no conclusion in sight of the illegal alien occupation, a growing number of politicians namely Republican who symbolize the TEA PARTY membership are co-sponsoring the ‘Legal Workforce Act.’ It will rigorously apply an enforcement law, circumvented by decades of premeditated abuse by Washington. E-Verify has materialized as a champion and has been vigorously certified by thousands of trustworthy businesses. E-Verify has been a voluntary policy up to now, by companies large and small who have shown a patriotic outlook in a exceptionally divided society. Businesses are keen to display their loyalty with the USCIS U.S. Citizenship and Immigration Services sign, as a mark of deference that they are not hiring unauthorized labor. But of course there is the other side of the blemished coin, of entities defiant to applying any law, which cuts across their enormous profits. Illegal workers can be exploited by threatening them with deportation and other insidious actions from ugly company owners. This is especially widespread amongst Contractors and sub-contractors such as in the building trades.

    E-Verify on the other hand is being revised on a continuous basis and a day of reckoning in coming for all corporations and businesses. For every business that doesn’t agree with (ICE) Immigration & Custom Enforcement the majority of the general population want full compliance. This is why we must insist that Congress enacts H.R. 2885, a mandatory E-Verify with no loopholes, which criminal businesses can wriggle through. Both parties have done this since the 1986, so that illegal workers could be hired, as Democrats and ‘establishment’ Republicans could do the favored bidding for the special interest groups.

    Even now we see this with the clever manipulation of the people polls, which indicates the key population is in agreement with as a path to citizenship; as suggested by Former Speaker Gingrich. The polls don’t give voters the alternative of ‘Attrition through Enforcement’. Instead, they achieve through this engineering of the voters, to basically choose between mass deportations or mass legalization. IT’S A STREAMLINED LIE, PUSHED BY THE LIBERAL MEDIA AND THE SO-CALLED PROGRESSIVE MOVEMENT.THEY HAVE ALREADY ACCOMPLISHED THIS, THROUGH THEIR RADICAL ‘POLITICAL CORRECTNESS’ AGENDA. In the case of a National Journal poll just released, voters were given a third choice of half-mass deportations and half-mass legalization (which is essentially the Gingrich Amnesty). Instead, they make voters fundamentally choose between mass deportations or mass legalization.

    But nowhere do voters hear that there is “ATTRITION THROUGH ENFORCEMENT” such as the E-Verify option that doesn’t involve mass deportations or mass legalization. It costs nothing to enforce as access to E-Verify is free and simple verification on the computer. What Attrition does do is: Quickly (over a couple of years) moves illegal aliens out of their payroll jobs. Quickly takes away taxpayer-provided benefits and thereby causes a volume EXODUS. Gradually over perhaps 10 year period, will cause illegal aliens to leave, reliving the major disruption in the job marketplace, specifically for low income labor. The Tens of Millions in the TEA PARTY members are not liable to fall for this clever fiasco.


    Most readers do not want to spend their precious time in the coverage of the illegal alien invaders, when their occupied with family affairs or looking for a job. But the audience interested in the complicated matter of Immigration, can read the all the facts, costs at such pro-sovereignty websites as NumbersUSA, The Heritage Foundation, American Patrol and the Federation of American Immigration Reform. This is only a drop in the bucket of thousands of sites that demand immigration enforcement compliance. There are hundreds of billions of dollars that the U.S. Government and states are forced by liberal courts in pandering to majority ethnic groups. That they demonstrate in city streets demanding the same rights as citizens and legal residents. They come from every corner of the world, or passing through our borders every day and this must–STOP? The chief motivation is we cannot afford foreign nationals slipping into America, bringing their poverty and adding to this countries own homeless, sick and impoverished.

    They are skewering the safety net for our elderly, single mothers and veterans. They must go home and straighten out their own corrupt nation’s political indignation. America is not the place of opportunity anymore as it’s been fleeced by our own policy makers, China, Mexico, India and other cheap labor countries. Our wealth is being washed away by unparalleled greed, corruption and the major influence of bankers and Wall Street. We cannot even get the Obama administration to approve the ‘Keystone’ oil pipeline, which will make us less reliant on Middle Eastern dictatorships that hate us. We have oil deposits in abundance that could power America for another hundred years, but the environmentalists have put a halt to that. My thoughts on Immigration law, that if there was any aspiration by our Maverick administrations to halt illegal immigration, they would have complied with the 2006 Secure Fence Act and enacted illegal entry as a FELONY? Instead we have years of disrespect for what the majority of Americans wanted and that is strict immigration laws, with no exceptions.

    Millions of us can still make a difference, by contacting the do-nothings in Washington, before the Presidential election of 2012. Join the TEA PARTY and read their referendum for America’s future. Start calling your members of Congress and insist you want them to co-sponsor the Rep. Lamar Smith (R-TX) MANDATE of the Legal Workforce Act’, H.R. 2885. A need for a 100 co-sponsors has now been whittled from 100 down to 32, and then the bill can be read on the House floor, to get E-Verify now or in the next session of Congress. So far just one Democrat with a spine and thinking of working Americans have put his House seat on the line, by sponsoring this enforcement law. Call 202-224-3121 and giving your name, address to the political aid, which will bring it to the attention of your legislator. Also ask your politician to sponsor to press for H.R.140, titled the Birthright Citizenship Act of 2011, which was introduced on Jan 5. 2011, by Rep. Steve King a Republican from Iowa; as of last month, the bill had 80 co-sponsors.

    [b]There will never be any kind of blanket amnesty, that’s the revelation of the TEA PARTY.

    • Jack E. Lope

      Right in that first sentence, I see the word “sovereignty”. Whence sovereignty?

      Are U.S. states sovereign? The Constitution, Article I, Section 10, prohibits states from a number of things that a soverign state might be expected to perform. (The very title is “Section 10 – Powers prohibited of States”. ) The definitions I find for “sovereign” all include freestanding, independent rule.

      You must be thinking of the Articles of Confederation, which were not working as hoped, and were replaced by The Constitution.

  • Frumplestiltskin

    Sotomayor recused herself from this case because she recognized she had a true conflict, unlike the pretend one that Foster cooks up for her to recuse herself from the PPACA. Of course Foster doesn’t feel it is fit to praise her for doing the honorable thing.

    “However, in June the Court voted 5-4 to uphold another Arizona law requiring employers to use the federal government’s E-Verify program” Foster somehow bizarrely equates upholding a federal law with being consistent with a state usurping federal power.
    I can’t see how it will not be more than 7-1 in favor of the 9th circuit. The Constitution mandates uniform immigration policy. It is a federal power. Is Foster so dense that even the Constitution is somehow no longer Constitutional? Section 8: To establish a uniform rule of naturalization
    8 U.S.C. Sec. 1252c reads:

    (a) In general. Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who–

    (1) is an alien illegally present in the United States; and

    (2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

    (b) Cooperation. The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.

    The provision contemplates a circumscribed role for state and local officials, to be sure, but the Arizona law authorizes a much broader role. Particularly: The Arizona law authorizes arrest without a showing of a prior felony, the requirement under (a)(2), above. Here’s the provision from SB 1070:

    E. A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.

    An alien’s unauthorized presence in the United States is just such an offense under 8 U.S.C. Sec. 1227. Arizona’s law is thus in conflict with the federal law and likely violates the Supremacy Clause under conflict preemption.

    Can this guy be a bigger hack?

  • Frumplestiltskin

    And here is the Arizona case regarding e-verify: The Court used that clause in its majority opinion.

    Arizona’s procedures simply implement the sanctions that Congress expressly allowed the States to pursue through licensing laws. Given that Congress specifically preserved such authority for the States, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority. . . .

    Because we conclude that the State’s licensing provisions fall squarely within the federal statute’s savings clause and that the Arizona regulation does not otherwise conflict with federal law, we hold that the Arizona law is not preempted.

    Again, I am stunned at how little Foster knows about what he is talking about. For the record I agree with that majority opinion. The power to regulate immigration is federal, a federal law is uniform, Arizona’s law defies uniformity, hence it is unconstitutional

    Really, where did Foster get his law degree? Downstair Law school? Online?

    • nhthinker

      Frumples is an uninformed idiot. Foster is a nationally renowned Chicago trial lawyer that has represented many union workers in law suits against companies that employ illegal workers.

      Foster sees the illegal immigration as hurting US workers and tries to make money off of it while the law is not properly enforced.

      Clearly, Foster knows immigration law much better than some two-bit language teacher that languishes in a narco-state third world country with a higher homicide rate than Iraq’s.

      • baw1064

        Foster is a nationally renowned Chicago trial lawyer that has represented many union workers….and wrote a recent column entitled “Union wages hold back job growth.”

      • Frumplestiltskin

        “Foster sees the illegal immigration as hurting US workers and tries to make money off of it while the law is not properly enforced.” Ha ha ha, nhthinker, you are hilarious. Is English even your second language because no native speaker would write such nonsense. You are saying that Foster is trying to make money off (it), it being illegal immigration. This is some kind of defense?

        As to my “languishing”. I have a house not far from the beach, I also have a home in Pa. and in Shanghai, China. I also speak 4 languages (though my German is very rusty). Simply put, you and I both know that I am far smarter than you and have led a far more interesting and vital life. Your obvious jealousy is just sad. I don’t think I am better than most posters here, I know I am better than you because you choose to wallow in your resentment.

        I notice how you did not rebut what I wrote, instead went into hackneyed insults, as though my doing charity work trying to make the lives of people here makes me some kind of loser.
        I could have stayed in Shanghai and made a fortune but I decided to try to give something back and go where people are needed.

        Now I have to go do what I love to do, which is teach a class.

        • nhthinker

          “I notice how you did not rebut what I wrote”

          I made the irrefutable assertion that Foster knows immigration law much better than your sorry arse and your head that is in it.

          Do you have any facts to rebut this? Would you like to double down and explain to the FF audience what makes you think you are better informed on immigration law enough for an ad hominem attack on Foster’s legal education?

          No? Didn’t think so.

          As to who is smarter? You want to compare GRE scores? Number of patents? Industry accolades? Salary? The last thing I have for you is any jealousy. You can’t even keep the same moniker here for more than about a year before you run away and start a new one.

        • Frumplestiltskin

          oh good lord, are you so stupid as to write what you just did? Try to focus on this one line and tell me where the reasoning is faulty:
          An alien’s unauthorized presence in the United States is just such an offense under 8 U.S.C. Sec. 1227. Arizona’s law is thus in conflict with the federal law and likely violates the Supremacy Clause under conflict preemption

          Waving around credentials is irrelevant, you have a lot of really stupid lawyers around, are you really so stupid as to be suckered in by everyone of them? And for the record I teach the ILEC exam and am certified to teach it, so how the hell do you know how much law I know or don’t know? The University I teach at has a Law degree program, which is why I teach the ILEC. You really are dense.

          You really are a sad, sad little man who can’t think for himself. You see a law degree and think he must know EVERYTHING there is to know about the law. Just yesterday I attended a conference specifically devoted to this topic sponsored by SEGOB and the Grupos Beta de Proteccion a migrantes. Foster is a guy who sues companies in order to make money. My opinions are formed by internationally recognized Lawyers, not some ambulance chasing hack.
          So yes, I just did refute you. So I win again.

          You got nothing. You can’t refute my argument, you are wrong that Foster knows more than the people I consulted on this issue. I win again.

          Time will show that I was right and you and he are wrong, will you acknowledge that? Of course not.

          As you can’t argue the law, I have no more reason to argue with you as you are a complete waste of time.

        • Frumplestiltskin

          oh, and nhthinker, I am a better person than you. Of that there is no doubt. I have worked on the island of Pohnpei in Micronesia, in China, and in rural Mexico devoting my life towards the education of some of the worlds poorest people. There are literally thousands of young people whose life I have helped make better. In the process I have seen the world, been to extraordinary places and done wonderful things.

          Yet you talk of Gre’s and salary. You really are a sad little man. I am far smarter than you because I have the wisdom of experience. I know the measure of a man is how much he loves and is loved by others. Yes, I have money, but that is mostly by happenstance. I bought land over the Marcellus gas shale deposit without knowing it decades ago and made a killing. I also bought a place in China when housing prices were dirt cheap and made a killing from that. But this was luck.

          I also note how much contempt you have for those who aren’t rich or famous, I take it you feel aid workers in hospitals in Africa also “languish” because they are not rich or have industry accolades.

          You really have no idea how much of an anti-Christ you are in your attitudes.

          As to my moniker, I have never hidden it, it is a form of amusement. At first it was takeoff of Shakespeare, but then I read Rumplestiltskin to my 2 year old and thought of Frum. Are you really so humorless that you find being playful with monikers represents something insidious?

          As I said, you really are a sad little man, so resentful. I really wish you would just give one year of your life to the worlds poor, it would make you into a real human being.

        • nhthinker

          “Time will show that I was right and you and he are wrong, will you acknowledge that? Of course not. ”

          Do you want a sentence diagram to show you the error in your sentence, English teacher?

          You claimed you were smarter than me: when I asked for an objective measure of intelligence/smartness you run away.

          You are still claiming you have at your disposal as you read this essay, more law knowledge than Foster. Keep up your bluster- it is knee slapping hilarious.

          You are an elitist with a high opinion of yourself and use many postings to indicate such.
          Can you point to a reference where Christ indicated he was smarter or better or more Christ-like than anybody?

          No. I didn’t think so.

          As to “languish”, you are an idiot. It was obviously a joke. You have indicated how well off you are in dozens and dozens of postings. You really are a stupid, easy mark.

      • WaStateUrbanGOPer

        NHThinker, as a self-described libertarian, don’t you hold American drug laws at least partially responsible for Mexico being a “narco” state?

        Of course you don’t. For no authentic libertarian could support a law as plainly unconstitutional as AZ 1070, so why would he or she defend Mexico against the disastrous results our country’s narcotic policy has had on it?

        Why don’t you cut it out with the phony libertariansm and just come out as what you actually are: a rightwing populist who favors big government.

        • nhthinker

          “Of course you don’t.”
          You don’t know squat about what I think.

          I’m between Romney and Ron Paul. Romney is electable and we need to transition to a more libertarian country.
          I tend to agree with Paul that it is mostly a waste of government spending to fight illegal narcotics.

          Ron Paul supported the goals of AZ 1070 but does not like that businesses are required to use e-Verify and other mechanisms as he sees those as roles of the state.
          The same libertarian type of argument could apply to forcing a business to card for underage drinking. I’m not that libertarian as to say a business has no obligations for helping to prevent underage drinking or preventing illegal labor.

          BTW, I am for much larger quotas on legal skilled immigrants, and wealthy immigrants, for that matter. It would very much help the housing market.

        • WaStateUrbanGOPer

          NH, thank you for clarifying. I withdraw my objection.

          However, the next time you defy your libertarian principles in order to side with Sarah Palin or the Teabaggers (et al) on bogus culture war grounds– as you have often done on this blog– I’m going to call you out on it and force you to retreat back into sanity.

        • nhthinker

          Thanks for withdrawing your objection.

          As to your unsupported charge of me siding with Sarah Palin types based on culture war grounds: please try making a specific charge for a contribution I made on a specific issue unless you want to be viewed as simply a drive-by “contributor” that does not really pay attention.

          As to your use of the slur “Teabagger”, you obviously are not a libertarian yourself. People that use the term generally deserve to be figuratively tea bagged by people that support most Tea party ideals.

          You and Frum seem to be the “rat’s head in Coke bottle”, big fed government type Republicans.

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