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A Further Perspective
Unconstitutional or Inconvenient
Arizona has been told: The federal government is simply too busy — or lazy — to enforce our nation’s immigration laws.
Several weeks ago, I made this observation about the Obama Administration’s lawsuit against the State of Arizona and Governor Jan Brewer:
When the DOJ argues that S.B. 1070 “will impose significant and counterproductive burdens on federal agencies” what they mean is that the ICE operated Law Enforcement Support Center in Williston, Vermont could get a lot more phone calls from Arizona. So it could blow the overtime budget of DHS. This is an administrative issue, not a constitutional one. Perhaps it will cause some inconvenience for the feds. But let us never confuse inconvenience with unconstitutionality.
Yet this is exactly what U.S District Court Judge Susan Bolton did when she blocked parts of the Arizona’s immigration law last week. One of the key arguments that led to Bolton’s decision was put forward by David Palmatier, the Unit Chief of the Law Enforcement Support Center (LESC), a hotline available to federal, state and local officials 24 hours a day, seven days a week to determine an individual’s immigration status. Palmatier filed a declaration with the U.S. District Court in Arizona, stating his objections to S.B. 1070:
In my professional judgment, Arizona S.B. 1070 will inevitably results in a significant increase in the number of IAQs (Immigration Alien Queries). The LESC processed just over 1,000,000 IAQs in FY 09. According to the FBI Criminal Justice Information Services (CJIS), in FY 09 criminal justice agencies in Arizona submitted 563,474 arrest records to CJIS, but just over 80,000 IAQs originated from all agencies within the state of Arizona in FY 09. Thus, Arizona’s SB 1070’s requirement that “(a)ny person who is arrested shall have the person’s immigration status determined before the person is released” could, by itself, dramatically increase the LESC’s workload. Moreover, because Arizona’s law calls for status verifications for lawful stops — whether or not such stops result in an arrest — the number of IAQs will increase dramatically. If even a small percentage of these stops, detentions, and arrests lead to new IAQs, the LESC will be forced to process thousands of additional IAQs annually. Moreover, Arizona’s new law will result in an increase in the number of U.S. citizens and lawful permanent residents being queried through the LESC, reducing our ability to provide timely responses to law enforcement on serious criminal aliens.
Needless to say, Judge Bolton was sympathetic to Palmatier’s argument:
Mr. Palmatier states in his Declaration that LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack or exploitation.” Thus an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities.
For these reasons, the United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law.
There is no way the State of Arizona ever intended to have its law enforcement officials check the immigration status of every single person arrested in their jurisdiction. In fact, the State of Arizona said as much in its arguments before Judge Bolton and it is a point she acknowledged in her decision. Yet that did not stop Judge Bolton from writing, “The Court cannot interpret this provision as Arizona suggests.”
Judge Bolton’s thinking (and for that matter Palmatier’s) begs this question. If a person produces a passport, a driver’s license or some other government issued identification during a lawful stop, detention or arrest by an Arizona law enforcement official, why would said law enforcement official then develop a reasonable suspicion that person was in the country illegally? If, in fact, it was Arizona’s intention to check the immigration status of every single person they arrested, then I would argue that Arizona would be doing the very opposite of racial profiling. Yet somehow I don’t think critics of S.B. 1070 would be inclined towards such generosity.
But putting aside the question of whether it is actually mandatory for Arizona law enforcement officials to contact the LESC following every single arrest, let us assume that Palmatier is correct in his assessment that the implementation of S.B. 1070 would result in a dramatic increase of IAQ requests to his agency. So what if does? The LESC will simply have to find a way to deal with it whether by lobbying for more resources or reallocating existing ones. I am not suggesting the implementation of the Arizona immigration law doesn’t present administrative, budgetary and other logistical challenges for the LESC. But it does not present a constitutional challenge. According to 8 United States Code, Section 1373(c) — Obligation to respond to inquiries:
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
Whether Palmatier likes it or not, the State of Arizona and its municipalities have as much right as the FBI, the Secret Service or any other federal agency to inquire about an individual’s immigration status even if it makes life at the LESC more inconvenient. Let it be said once more. Inconvenience must never be confused with unconstitutionality. One can only hope a higher court will recognize this and overturn Judge Bolton’s shortsighted decision.
About the Author
Aaron Goldstein writes from Boston, Massachusetts.
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Robbins Mitchell| 8.4.10 @ 6:45AM
Article III, Sec. 2, clause 2 says:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction.
Why did Bolton hear this lawsuit on AZ SB 1070?
11th Amendment:
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
California, or its citizens, cannot sue Arizona.
Mexico cannot sue Arizona.
Ret. Marine| 8.4.10 @ 7:22AM
you just nailed it to it's core. Many thanks for the in your (fed's) face. Impeach this son of a communist/marxist lover already.
Albert| 8.4.10 @ 10:49AM
And while you're at it, impeach Susan Bolton as well. Judges who brazenly violate the US Constitution as Bolton has done, have no business on the bench and should be removed.
Al Adab| 8.4.10 @ 11:44AM
Darn silly old Constitution anyway. How can we let that get in the way of our political advantage?
Albert, I hope your comment applies to Kagan as well.
Whether the nation can extricate itself from this gordian knot we are in remains to be seen. Should the ballot box fail us this November- and Harry Reid might even win?- what recourse is left or is this in fact the final act of Constitutional government in America?
Bill| 8.4.10 @ 7:40AM
It is time to start impeachment proceedings. He has failed to uphold his oath of office and has ignored the security of this country and the will of the people.
Curly Smith| 8.4.10 @ 7:55AM
I celebrate the decision! Think about all of the things that impose a burden on the Federal Government and that are consequently unconstitutional:
ObamaCare, the Income Tax, the soon to be Cap and Trade, Social Security and Medicare, the list is virtually endless. And the long list would conclude with "The Federal Government". That's right, the Federal Government imposes such a burden on itself that it's unconstitutional.
Louis Jenkins| 8.4.10 @ 8:08AM
What? A Federal agency that refuses to take the opportunity to grow? Unheard of. As stated by Curly Smith those programs are new, or at least growing in scope. Not only can they decide not to grow or grow, which ever, now they've decided that Arizona's SB 1070 is too burdensome.
Pete| 8.4.10 @ 10:25AM
This was my first thought as well, and crystal clear proof of the hypocrisy involved.
I also take issue with the last sentence of the article calling the judge's decision "shortsighted." The judge did what he was told to do, period. I don't believe for a moment he deliberated in a scholarly manner, wrestled with the issues, and came to a well supported conclusion, do you? Does anyone?
Ned| 8.4.10 @ 10:44AM
... don't mistake following the Prime Directive (Grow Thine Agency) with actually "doing something useful", or even "doing your job"... this is the federal government we're talking about here, and their right to grow unchecked, without accountability or accomplisment shall not be challenged....
Petronius| 8.4.10 @ 8:39AM
Arizona has been tried inside the beltway for effrontery toward it's pharisees and convicted by it's media. The issue for the Federal Government is not illegal immigration. It's about showing the peasants that they are gods.
Jim O'Brien| 8.4.10 @ 8:41AM
Obama's position is to make it difficult if not illegal to eject illegal immigrants. By doing so, he is waging war against American citizens nationwide, and weakening our national sovereignty and security.
Our soldiers have died by the thousands to defeat terrorists in foreign countries, to prevent them from attacking us here at home. Meanwhile, we have left our own border with Mexico undefended, allowing millions of people to infiltrate. How many, among those millions of illegals, are actually terrorists plotting more attacks? Isn't the Mexican border an obvious choice to enter the U.S. if you are a terrorist?
Is Obama stupid or treacherous? I think he's both.
Mimi| 8.4.10 @ 9:06AM
For GOD's SAKE: Can't they hire a couple of girls and buy a couple of telephones....or get some volunteers up in the great state of VERMONT???
Mark my words....If the DEMS keep up with their political-games....War .. I mean real war...{likeIRAQ} will soon be happening on the Mexican border. The rhetoric is getting hot.... The drug cartel monsters are drunk with POWER,
and BOLD!! War.... like planes flying... is that what the DEMS have brought us to??? Wise- up
Washington!!
Maddox| 8.4.10 @ 9:30AM
Would it create "significant and counterproductive burdens on federal agencies" if 20 million Americans decided not to file or pay taxes ?
Al Adab| 8.4.10 @ 12:15PM
Maddox,
What if a state, Arizona perhaps or MO, set up an escrow acount and had the citizens remit their federal taxes to that acount until the Federal Government either enforced immigration law or dropped the forceible purchase of insurance?
You might just have hit on an idea whose time has come.
Maddox| 8.4.10 @ 1:16PM
Good idea, if we are no longer receiving the government services our taxes pay for, then why pay?
buckeyeman| 8.4.10 @ 11:05AM
For GOD'S SAKE please stop this fallacy of blaming this debacle on "lazy, stupid, underfunded, ... etc. " Nor is it for democratic votes (just icing on the cake). Obama will not now or ever enforce immigration law because he is an international socialist (Marxist for those of you educated in an American public school). He will not enforce the law because he does not believe it SHOULD be enforced. He believes the illegals have a right to be here just as he believes the poor have a right to the wealth of the rich (some of whom, like me, actually worked for it). Laziness has NOTHING to do with it. It's all about Marxist IDEOLOGY.
Robbins Mitchell| 8.4.10 @ 12:26PM
Then I have a right to share his baby mama's affirmative action pu$$y,don't I?
Maddox| 8.4.10 @ 1:17PM
It is not "we" who are using this excuse. It is Obama's crowd of crooks.
Bob Miller| 8.4.10 @ 11:36AM
Is "open commitment to selective non-enforcement of Federal law" a violation of the oaths of office taken by Obama and his appointees?
Al Adab| 8.4.10 @ 11:47AM
Have we collectivly forgotten the lesson of Pancho Villa? When he led his bandits into New Mexico and shot up Columbus, the United States Army pursued him INTO Mexico under the command of John J. Pershing. From what is happening in Arizona now the parallel is evident. Does this President have the courage of Woodrow Wilson?
martin j smith| 8.4.10 @ 11:56AM
The entire brohaha about The Arizona law, among other things has demonstrated for the nation just how dangerous the BHO policy ( if you can call it that ) really is not only on immigration but national security. A state which takes a non functioning federal government exposes a great deal. and about the nature of the Judiciary. In particular it shows that judges take sides onthe constitution and the Left judges do not uphold their oath to up hold it. Judges such as Bolton should be held accountable but sadly some judges such as on SCOTUS are appointed for life with no accountability. This is wrong and needs to be addressed.
Immigration has now joined the various other campaign issues that are piling it up so high that it is no wonder that Polls indicate major anti-Socialist Democrat sentiments.
Ret. Marine| 8.4.10 @ 3:35PM
This is exactely why we have amendments to our Constitution. This is long past due.
fwb| 8.4.10 @ 12:04PM
Please point to any clause in the Constitution that grants ANY immigration authority to the federal government. Now that you can't. Let's look for information in the Constitution that tells us who is in charge of immigration. That is found in Article 1, Section 9. "states... shall think proper to admit". Let's see. There is no grant of power over immigration to the feds and the ONLY clause in the Constitution that even hints at immigration and emigration states "states...shall think proper to admit". Maybe, just maybe, the STATES RETAINED immigration power.
And the power over immigration is NOT part of the power to make "an uniform rule of naturalization". Immigration and naturalization are independent although related. The power granted also does not allow the feds to naturalize. It gives the fed the power to make a rule which under the supremacy clause, the States are bound to follow. But the States have ever retained the authority to control immigration and to perform naturalization. All persons who were naturalized by the fed are NOT citizens. That was another lie committed against We the People by the government.
So why does anyone want the federal government to enforce laws that are unconstitutional? What MUST occur is that the feds need to get out of State business.
If you want to equate illegal immigration with invasion, then you best learn how the Constitution prescribes invasions be quelled. Yes, the feds are to protect the States from invasion BUT the feds are restricted to using the MILITIA to repel invasions. See Article 1, Section 8. AND the MILITIA are not the national guard, regardless of the crap coming out of the mouths of the judges.
The question is: Do you want Constitutionality restored or not? If you do, then learn EVERY facet of what Constitutionality is.
Blackwatch| 8.4.10 @ 6:49PM
Time to get a declaration of emergency from the Governor of AZ and create a criminal exclusion zone along the border. Call up a 10,000 man fully armed volunteer border militia and put boots on the ground along the entire border.
don't interfear with the feds.
Put a few sherriff's deputies in with the civilian militia to ensure no one's civil rights are compromised. video tape all arrests too. do this from now until 2012. all illegal alien/drug flow will stop in AZ and move to CA or NM or TX.
Richard| 8.4.10 @ 12:30PM
Not enforcing the immigration laws have created--surprise--a lawless frontier with Mexico. If law enforcement is absent, criminals will enter.
Leo| 8.4.10 @ 12:42PM
If the DHS isn't going to do the job we pay it to do, it needs to be defunded. The money is too scarce, and we need to pay for things that actually will get done.
What I expect from the USSC when this case gets there is a simple statement: "The supremacy clause is not a suicide pact." while it's deciding that Arizona is acting well within its authority and rsponsibility to its citizens.
Arizona realizes substantial damage from the federal government's dereliction of its duty. If they accept the funding and refuse to do the job as a matter of institutional policy, they need to be tried as a criminal enterprise and repay Arizona and other states for the damages their dereliction causes under RICO guidlines.
Oldefarte| 8.4.10 @ 4:24PM
According to both federal and Arizona state law, every immigrant from Mexico is required to carry his/her/their immigration paper work that PROVES their LEGAL STATUS. If they do not do so, they are subject to arrest, and, if same immigrant is found to be of illegal status, then they are then subject to deportation process by the government. If the government is overburdoned by said law[s], then that is their problem; and for said governments to NOT CARRY OUT THE LEGISLATED LAWS makes same governments in violation of the law and therefore answerable to the judiciary branches of our government [if government decides to NOT enforce the vehicle speeding laws because of an inconvenience to said government, then governmental officials responsible for same non-enforcement should be arrested, tried in court and appropriately sentenced if found guilty!!!!!!!
CantGetRight| 8.4.10 @ 7:49PM
Republicans love the constitution until it gets in their way and then like Bush said it's just another piece of paper. How many parts are they going to attack?
I don't recall John McCain or Jon Kyl ever pushing for immigration reform, McCain was more worried about campaign finance, I wonder why? This is just not an Obama administration problem, the republicans had a chance at immigration and balked because their voters don't understand that immigration is a bigger problem than securing the border.
Viper| 8.4.10 @ 11:48PM
You obviously do not live in Arizona or near the border. Come down here and spend a couple of weeks with your boots on the ground south of Ajo. I guarentee that you will have a totally different outlook one you have been confronted with reality. Come on down if you've got a pair.
Leo| 8.5.10 @ 7:05AM
Your memory is selective. McCain was a co-sponsor of the attempt at comprehensive immigration reform in 2007, along with Ted Kennedy. Were you reading then?
Leo| 8.5.10 @ 7:08AM
http://en.wikipedia.org/wiki/C.....ct_of_2007
Terry| 8.4.10 @ 9:41PM
We need to remove all the Social Welfare
alloted to the illegals and stop them from
obtaining any american job through illegal
employement pratice's.
DaveinPhoenix| 8.4.10 @ 10:26PM
As a resident of Phoenix, I can tell you that this has nothing in the world to do with "inconvenient", or the Constitution or anything else. It has everything to do with creating millions of new Democratic voters in America.
I seriously doubt if the elite criminals in Congress or the White House would dream of coming to live in Sunnyslope or southwest Phoenix - the drug infested crime ridden areas that they have created with their criminal policies.
There's a lot of honest decent Americans of Mexican decent living in this town who work their tails off and pay their taxes. They don't complain, or whine. God Bless 'em. But I'm sick to death of watching police officers killed in shootouts, chases down the I-10 or I-8, I'm tired of the drop houses all over this valley, the kidnappings, and drugs. I'm tired of seeing whole parts of this town taken over and turned into Mexican sh**holes where even the Mexicans won't live any longer 'cause it ain't safe. My ancestors came to this country in the 1830's and had their papers checked every inch of the way. I'm sick to death of watching these illegal Mexican pussies running away from their own country, coming here and protesting about their rights. "Cause until they bear the responsibilities of being American adults, then they haven't earned these rights.
sunshine| 8.4.10 @ 11:50PM
Government and that are consequently unconstitutional
figusjanus| 8.5.10 @ 9:51AM
I am a Navy veteran and Puerto Rican(Legal Hispanic). I am an American first and Spanish second. I have the solution to all of this brouhaha! This is my first response to an article on line SO BE NICE.
There are three steps. First take away the anchor baby law. I think it is the 14th amendment. Forgive me if I am wrong. Second, go to the Fair tax. Third, make everyone in an entitlement program that is able bodied,go to work for the local government in the areas they live in.
They (illegals) would now not be able to leach off of the government. The children that would become citizens because they dropped to the ground on U.S soil will still be illegals.
Illegals would now be able to purchase homes, insurance, drivers licenses. Everything they need to be an American without being citizens. We no longer have to get mad when they get hospital services because they put into the system. They would not have to feel hunted by the police. They no longer have to hide from immigration authorities.
Illegals would learn that they have to be proud of the country they want to be part of. It would give them more of an incentive to be a citizen.
Only around 40 to 50% of all Americans actually pay taxes. The Fair Tax would ensure everyone would pay into the system. No one could hide from it. What you buy is what is taxed. No more income tax. IRS is now no more. Illegals now pay into the system because they have to buy items in local stores to survive. Instead of the 50% of Americans paying you now have all Americans plus the illegals in the system. That would be the 16 to 30 million illegals now residing in the U.S..Everyone now is a tax payer. More than a 100% increase of the tax base.
Budget crisis is over due to the influx of money. Local, State and Federal agencies would have a massive work force due to the large amounts of people on Welfare and other entitlement programs.
When everyone pays their fare share, these Marxist will lose all support for a socialist utopia and give up there fight.
I believe the ruling class will never address these solutions because they need people in poverty so they can have constituents that will vote them in to office. They need people in poverty to keep them hating conservatives for being racists! Even conservatives like me are viewed as Uncle Toms!
respectfully,
E.M.| 8.6.10 @ 9:52PM
Congress did not expressly prohibit states from enforcing immigration law
As we all know, it would be one thing for states to draft new legislation beyond the purposes and scope of existing federal legislation - but that isn’t the case with 1070.
The text, vernacular and spirit of 1070, as you know, were lifted directly from existing legislation (already properly enacted in accord with the supremacy clause) and is clearly intended to enforce existing federal immigration law.
You might be interested to know that Bolton, a good yet fallible judge, has been reversed by the 9th circuit (see, 1 CA-CV 00-0516, Camelback Plaza v. Hard Rock Cafe). The parties fought over legislative intent to empower, and whether Bolton had authority for her ruling. She was reversed.
The 9th circuit reversed Bolton and stated that “costs, efficiencies and principles of economy were not arguments which illuminated the legislatures intent”…”instead, they simply advance an argument for legislative change” (Court of Appeals State of Arizona, Division One). The same is true as it relates to 1070. Did Congress expressly prohibit States from enforcing federal immigration law? It did not.
Since Bolton has already been reversed on issues surrounding legislative intent, she should have learned then that Congress would have [expressly] prohibited State enforcement if that was its intent. It did not.
There are numerous federal laws which can only be enacted by Congress that are enforced by States.
The 9th circuit previously reversed Bolton because she erroneously based her decision on issues that did not illuminate legislative intent. Bolton made the same mistake again.
Under the law it doesn’t matter if it is inconvenient or cost too much to enforce immigration, or any other law. The Supreme Court will look to see if Congress expressly prohibited States from passing laws to enforce immigration legislation.
*****
The Obama administration’s lawsuit seems to be a material abuse of process inasmuch as Arizona is endeavoring to enforce, while Obama is endeavoring to enjoin, acts which would advance the purposes existing immigration law.
****
Arizona should file a parallel action seeking a writ of mandamus from the Supreme Court to compel the Obama administration, DOJ and others to perform its duties to enforce America’s immigration laws, and to refrain from using the judicial branch to thwart the rule of law.