Patterico's Pontifications

7/24/2010

How Obama Could Nullify Arizona’s Immigration Law

Filed under: Immigration,Law,Obama — DRJ @ 12:07 am

[Guest post by DRJ]

Legal Insurrection explains how the Obama Administration may nullify Arizona’s new immigration law:

“My expectation is that if the ruling goes as currently expected, and the status check provision alone survives, the Obama administration will refuse to take into custody anyone who is turned over by Arizona authorities who is not already wanted for a crime or who was not picked up in the course of committing another crime.

Call it nullification. Or better yet, willful disregard of the law.”

I think Jacobson is right, especially since this is similar to the Obama Administration’s response to the court’s decision regarding Obama’s offshore drilling moratorium. In the moratorium case, the Administration used federal executive powers to avoid the consequences of the adverse court decision. The Obama Administration could do the same here by refusing to take custody of anyone who wasn’t already wanted for a crime. In fact, federal authorities might even restrict immigration checks to persons charged with felony offenses.

Of course, it’s also possible the Administration will aggressively check immigration status to facilitate its planned lawsuit alleging Arizona’s law encourages discriminatory racial profiling. But I doubt it, because I don’t think the Obama Administration wants to provide statistics that might show how many illegal immigrants are suspected of committing crimes.

— DRJ

46 Responses to “How Obama Could Nullify Arizona’s Immigration Law”

  1. Arizona will still get to take said illegals off the streets and put them in jail – six months for their first illegal entry, two years for any repeats.

    It doesn’t matter too much if Obama then sets them free.

    Others have mentioned that it’s politically untenable to just set them free though – it’s too obvious. Right now, the revolving door is quieter.

    luagha (8e5255)

  2. If I was Arizona, I would keep very good records of every illegal alien I caught, fingerprints etc, including a record of every attempt I made to turn them over to the federal authorities. Every time I caught them committing a crime I would issue a press release. Pretty quickly, and very often after that, one of the illegals that the feds refused to accept is going to commit a major crime. The feds need to be held accountable for allowing these crimes to be committed.

    gahrie (ed7a50)

  3. laugha,

    My understanding is that Arizona can’t incarcerate anyone for illegal entry unless the person has been identified as illegal, and that can only be done via the federal database.

    DRJ (d43dcd)

  4. There is a bit of a Catch-22 there. In order to show that the AZ law is causing legal citizens to have their immigration status questioned, the feds will have to check the status of all those being detained. Well, what if they check the status and come to find that 95+% of the folks being detained ARE illegal? How do they push their “it’s not right because it’s profiling” objection then?

    Icy Texan (6df7c5)

  5. DRJ #3 – if the person detained for a crime is unable to speak English and unable to produce proof of citizenship, then should the lack of English not be probative of lack of US citizenship ? (Or whatever the legal term is)

    Alasdair (205079)

  6. Hmmmm.

    The legal requirement for *naturalized* citizenship is fluency in English.

    memomachine (24fbc0)

  7. If the feds won’t take the illegal aliens Arizona should put them on chain gangs and set them to building a fence along the border.

    ropelight (3203bf)

  8. It would depend on the Arizona judge that the illegal was brought in front of. Without a permanent residence bail can be denied, so the illegal stays in jail until his DUI is tried.

    nk (db4a41)

  9. my understanding was that the state of AZ will be able to check immigration status (something that is already done routinely during criminal stops already since cops like to know exactly who they are dealing with). On traffic stops, more and more often, illegals don’t have drivers licenses because they can’t show legal ID in order to obtain one, and they the often carry no insurance. So during traffic stops the driver is found to be illegal, their car is impounded and the driver is entered into a database and released.
    If the driver is a knucklehead, they are carrying the fake ID they use for work and then they get a possession of fake documents charge and maybe an identity theft charge.
    Most of the time, here at least, the DA and judge ignore all of that out and just allow the impound of the vehicle and charge for unlicensed driver and maybe no insurance. The illegal walks away from the vehicle, lets it get resold out of the 30 day impound since the car is rarely worth the fees; then pays whatever fine that comes with driving without a license and with no insurance (and lately unlicensed illegal drivers buy cheap insurance that meets minimum CA requirements that is cheaper than the CA no insurance fine)
    The car is impounded, the illegal can call for a ride home, but often the cops will find an illegal equipment violation detail on the new car like a huge virgin de guadalupe hanging from the rear view and check for license and insurance and impound that car too.. so now the traffic stop illegals walk to the nearest shopping area and wander through the store for half an hour until the cops move on to bigger things and then call for a ride, or they take the bus home.

    The article linked seemed to infer that the judge may not allow AZ to usurp Federal authority by incarcerating or deporting people found to be here illegally, for the crime of illegal residency.
    So for minor offenders AZ will have to use ID theft charges, possession of false ID charges, failure to appear (or to pay the unlicensed driver fine) to jail illegals.
    This would put a burden on AZ taxpayers for the cost of jailing offenders and at the end of their jail time ICE would refuse to accept them, and AZ would be unable to usurp the federal authority to deport them or to add more jail time for the federal elements, and thus AZ would have no choice but to release the illegals.
    The feds could then refuse to reimburse AZ for any expenses and cash strapped counties would begin to again refuse to prosecute certain violations… they’d just get as positive an ID as possible, get fingerprints and maybe DNA and then cut them loose.

    If AZ can’t incarcerate an illegal for the crime being here illegally; and also cannot deport an illegal alien upon release because the feds won’t, I don’t think AZ can do anything but charge the minor offense, note the immigration status, appeal to ICE, get ignored, and then release the illegal back out into town.
    That nullifies the AZ law, or reduces it to what most states do now anyway.

    Same goes for minor criminal behavior, if ICE refuses to remove an identified illegal after his/her sentence is up for a narcotics charge, AZ will still have no choice but to release the alien out into society… I may be wrong, but I don’t think the judge is going to allow states to have the right to deport across international boundaries, or to add “federal time for federal crime” to the sentence of an illegal.

    SteveG (11baba)

  10. If SteveG’s scenario turns out to be accurate, Arizona only has to create billboards, a web site, and regular press releases documenting the number of illegals arrested who are not accepted by ICE for processing. When that number reaches the hundreds of thousands, public pressure to actually enforce the federal law would be enormous.

    navyvet (206534)

  11. If they can’t bus the illegals back across the border to Mexico can they at least do it along state lines? Say…Arizona to California?

    Probably not but dumping them in the laps of LA or San Francisco would be sweet.

    tps (dedf5d)

  12. If the feds won’t take the illegal aliens Arizona should put them on chain gangs and set them to building a fence along the border.

    Comment by ropelight — 7/24/2010 @ 4:24 am

    Exactly correct. Then the illegals would indeed be doing jobs that American (government) is not willing to do.

    NavyspyII (df615d)

  13. SteveG, It’s my understanding that Sheriff Arpaio already has a new subdivision of Tent City setup for these detainees.

    Incarceration will be fairly cost effective, and we might just get some work out of them while they’re here. As many of these illegals have a lot of construction experience….see comment above.

    NavyspyII (df615d)

  14. I was going to ask a question, that if Obama does things to circumvent the law, what do the feds have to keep AZ from doing the same, but I’m not going to ask that question on second thought as it might get someone in trouble. What would happen if Brewer orders the state police or AZ National Guard to put people on buses to one of their choice of sanctuary cities or back to Mexico? Obama seems quite persistant in getting what he really wants, whether it is jamming legislation through Congress, making Executive orders when that doesn’t work, making recess appointments, bringing litigation, bringing “repeat” litigation to plug things up when litigation doesn’t go his way. I bet he would get very unhappy if someone answered in kind.

    MD in Philly (3d3f72)

  15. 11.If they can’t bus the illegals back across the border to Mexico can they at least do it along state lines? Say…Arizona to California?
    Probably not but dumping them in the laps of LA or San Francisco would be sweet.

    Comment by tps

    Someone needs to translate the lyrics to “Are You Going to San Francisco” into Spanish, if it hasn’t already been done.

    MD in Philly (3d3f72)

  16. I like the idea of sending them to sanctuary cities. Of course, they will come back because they cannot bear to be separated from the anchor babies who bring in checks. But enough families might follow the “breadwinner” to the new city. Could Chicago qualify? It would be nice to load up The One’s hometown with the criminals that The One won’t prosecute.

    So digusted (0a57bf)

  17. ropelight and Navyspy have the right idea, it’s the most direct, cost effective, and useful response to the problem of what do do with illegal aliens the feds refuse to take.

    It deserves consideration and support.

    ropelight (3203bf)

  18. I see an advantage in the narrative if Obama does allow deportation of the illegals turned over by the state of Arizona. When a violent crime is committed by an illegal, the administration can claim that they could concentrate on getting rid of the violent illegals if they didn’t have to spend so much time processing all the landscapers that Arizona is sending them.

    However, if the Feds refuse to take action on illegals handed over by Arizona, then whenever one of those specific individuals that was not deported commits a violent crime, it will be a major public relations hit for the administration.

    Mike S (51dc46)

  19. give them to Sheriff
    Joe he make wear pink panties
    eat green bologna

    ColonelHaiku (6d95fe)

  20. they lose face and run
    back to mexico just like
    cat with tail on fire

    ColonelHaiku (6d95fe)

  21. It’s quite a bit more of a drive, but I’d have thought dropping them off in the District of Columbia would be the sweetest response. If it’s a federal issue, then give them to the only part of the country under the direct responsibility of the feds.

    Gesundheit (cfa313)

  22. Few issues seem as intractable and discouraging as the issue of illegal immigration. Or as indicative of the vast differences in the way Americans in our time view America’s worth and values. One would think that if there were a single issue that could unite all American citizens–or at least get them talking honestly about it–it would be the sacred nature and responsibilites of citizenship, and illegals’ costly impact on our nation: on police, the prisons, the language, the school systems, public health, the welfare system, the drug trade, and wages, just to name a few.

    When did something as important and as ennobling as legal immigration and naturalization are to our country get so muddled with illegal immigration and so politicized? At what point did it become OK for our federal government to openly enforce laws with selectivity or to ignore some entirely, even as the public is begging for help? What explanation is there for why the conditions of the Reagan era mass amnesty (that was supposed to solve everything) were not lived up to? At what point did the balance shift so that fear of “discrimination” has been allowed to supersede and devalue the foundation of every single other equally important law, credo, value, and tenet of the American panoply?

    elissa (ac36f5)

  23. The feds did something similar along the border in Texas after Clinton was sworn into office, refusing to take any marijuana smuggling case smaller than 50 pounds. Jammed the county jails so much the state had to create a new judicial district in West Texas, and one county (Presidio) went bankrupt due to the cost involved in having to build a bigger county jail to handle the overflow of inmates normally in federal custody that were suddenly being dumped into the state and local systems.

    John (598ddb)

  24. democrats always
    on hunt for lowest common
    denominator

    ColonelHaiku (6d95fe)

  25. Accertaining from other blogs, and various readings, pro and con, it seems that if the new Arizonia immigration law is circumvented by the feds there will be such a coast to coast explosion all immigration laws will be damned.(except California) Not Good.

    Both Democrats and Republicans are responsible for this.

    From an average person’s view it’s brutally obvious that both paries are so incestously involved the sun and the moon have become one. Frightening.

    And how dare a foreign leader sue us for following our own laws. Not rocket science, because a lack of a formal protest will ensure their personal downfall.

    Its just not about Us.

    Mac (a53d31)

  26. Then put the detainees on a bus, drive to DC, let them off in front of the White House and drive back to Arizona.

    rudytbone (4d0a5c)

  27. For all of you with these wonderful ideas to help us here in Arizona…
    Help this way…
    http://www.keepazsafe.com/

    Jeff S. (b15751)

  28. Couldn’t AZ file a RICO suit against the Feds for their “ongoing pattern of criminal activity”?

    Indy1 (41d7f1)

  29. Indy1: We don’t have THAT many tents here, nor green bologna. lol

    Jeff S. (b15751)

  30. I left a comment on the previous thread, but either it was deleted, it was moderated and never approved, or there was a technical glitch.

    In any case, whatever the outcome of the case and whatever the Obama admin decides to do, you can still take action. In case anyone is willing to do a little work and support the AZ law in smart and effective ways, see my name’s link.

    What you can do (4627c9)

  31. So would those who speak out against the Arizona law feel the same way if…so one of those illegals they are SO WORRIED about won a mega lottery, and still didn’t pay taxes, but bought a huge mansion big car etc? Would they feel the same way if their employer called them into the office and said that they were fired because they could be replaced by those who could be paid less and not demand fair rights? Would they feel they same way if they were passed over for food stamps because they made $10.00 more than they should, yet because the illegals do not have to report ALL their income THEY qualify for OUR FOOD ASSISTANTS PROGRAM. If the federal government would help maybe Arizona would not have had to do this. I have nothing against those that are here legally and have gone through the process to become legal, we would have to do the same in their countries to live there. Why must America be different, we don’t have it any better right now then most of the rest of the world.

    sagitvmpyr (61805d)

  32. I’m concerned that the judge will rule that AZ cannot sentence and incarcerate and/or deport illegals for the crime of being here illegally as that would be strictly a Federal issue…. but the judge will allow AZ to ask.
    I’m also interested in how the judge will treat the sanctuary city provision and the right to sue public officials who refuse to enforce the new law

    SteveG (11baba)

  33. Some of these judges should be concerned about being the guest of honor at a T&F party.

    AD - RtR/OS! (9ca489)

  34. Here’s an example from Texas of what ICE will do in Arizona if local officials turn over suspected illegal immigrants:

    More than 100 federal agents and local police served the federal arrest warrants Saturday afternoon at the Sunny Flea Market on Airline Drive near Gulf Bank Road. The members of a multi-agency anti-fraud task force piled out of unmarked trucks and vans around 2 p.m.

    Witnesses reported that some agents screamed “Don’t run!” in Spanish as people fled the flea market.

    Michael Feinberg, the acting special agent in charge for investigations for Immigration and Customs Enforcement in Houston, declined to provide details Saturday about the specific type of document fraud the suspects were accused of committing, saying they were selling a “variety of IDs.”

    Lance Solano, a 29-year-old illegal immigrant from Guerrero, Mexico, said he was at the flea market shopping for phone cards when he heard yelling and saw the agents pouring out of vehicles. Solano said he was detained with the other shoppers for about 20 minutes.

    “They checked my (Mexican) consular ID card, and then they let me go,” Solano said.

    Feinberg said agents were targeting only the suspects identified in the criminal arrest warrants and were not making immigration arrests at the flea market.

    DRJ (d43dcd)

  35. Is this scenario legal:
    alternative 1: sentence the alien to jail, but remit the sentence on condition that he agrees to return to his home country immediately.
    alternative 2: add a term of probation to the sentence, and make return to his home country a condition of probation.

    The legal requirement for *naturalized* citizenship is fluency in English.

    from my experience that requirement can be applied rather flexibly, if y’all know what I mean–or at least here in Florida.

    kishnevi (cc4419)

  36. Alasdair,

    I don’t think language would be a determining factor. There are many people in my community that I know were born here but they barely speak English. In West Texas, many businesses cater to Spanish-speaking individuals and our bilingual education and legal systems means it’s possible for citizens to live comfortably, even if they primarily speak Spanish.

    DRJ (d43dcd)

  37. alternative 1: sentence the alien to jail, but remit the sentence on condition that he agrees to return to his home country immediately.

    alternative 2: add a term of probation to the sentence, and make return to his home country a condition of probation.

    I believe law enforcement in my area has done both (or something similar) for years. It’s rarely effective because many illegal immigrants change identities and use forged or fraudulent documents. The only way to be sure who they are is by fingerprinting, and that is rarely done except if they are arrested for another offense. It isn’t done at all in sanctuary cities.

    DRJ (d43dcd)

  38. Mike Dukakis, call your office, President Obama is holding.

    daleyrocks (940075)

  39. “Few issues seem as intractable and discouraging as the issue of illegal immigration.”

    elissa – I’m not convinced of this. I am convinced that Washington is out of touch with what Americans want in this regard. The last bill to almost pass the Senate was supported by only 21% of Americans. The public overwhelmingly prefers securing the borders before addressing legalization issues. It’s the politicians getting in the way, not the public.

    daleyrocks (940075)

  40. Mike Dukakis, call your office, President Obama is holding

    Big Zero want to
    borrow Rocket J. Squirrel
    cap Dukakis use

    ColonelHaiku (ac3c3c)

  41. alternative 1: sentence the alien to jail, but remit the sentence on condition that he agrees to return to his home country immediately.

    alternative 2: add a term of probation to the sentence, and make return to his home country a condition of probation.

    In Illinois, judges are not alllowed to depart from the statutory sentencing factors. (For most of my career, plea bargains were an orphan child because the legislature had made no provision for them — they were a “gentleman’s agreement”, off the record.) I don’t know how much discretion Arizona gives judges to fashion sentences.

    nk (db4a41)

  42. If Obama orders one of his minions to break the law, why is that not impeachable?
    In that thought, The Republican Platform should include impeachment for activist judges.

    Paul Albers (23002d)

  43. As it stands now, ICE will not take any illegal alien on a misdemeanor charge unless they are a prior deport and/or have been VR’d back to Mexico. Illegals can be stopped for petty theft/traffic charges and unless their name pops up in ICE databases as an agg felon/prior deport, ICE will not come out and pick them up.

    The Last Recluse (c9bf85)

  44. For a man who is supposedly a constitutional scholar Obama is unbelievably dense. The federal courts will hand him and Holder their asses.

    His willful non-enforcement will play legally to Arizona’s favor. Obama’s and Holder’s willful non-enforcement constitutes a constitutionally impermissible tax. In addition a proper ruling of the Supremacy Clause requires that Arizona enforce federal law concurrently with its own laws. Indeed Arizona can and should counter sue the federal for failing to uphold federal law under the Supremacy Clause. The Supremacy Clause simply means that the Federal Statutory scheme is superior to State statutes and State statutes cannot contravene federal law and the federal constitution and ratified treaties. It does not mean the federal government is superior to the states, both are coequal sovereigns with different competencies. The executive branch is obligated to enforcing federal law. Obama and Holder by their actions are creating federal law which is a constitutionally impermissible action on the part of the executive branch and it is highly unlikely the courts will stand for that. Then there is the clause in the constitution about the federal obligation to protect the states from invasion.

    The only question is on how many different points the court will rule against the government, not if.

    cubanbob (409ac2)

  45. #16–we here in Illinois have enough trouble without dumping more illegal immigrants into the cesspool that is Chicago. How about California or Washington State instead? Isn’t Seattle a sanctuary city?

    rochf (ae9c58)

  46. Rolling Stone magazine does their little “with us/against us” segment each issue. Judging by this news item, Elton John is against them:

    Elton John Slams Musicians for Boycotting Arizona

    One thing you can say about Elton John — he’s not shy about stating his opinion or taking an unpopular stance. The Arizona Daily Star reports that when Elton played in Tucson, Arizona Thursday night, he had some harsh comments for the many musical acts who have chosen to boycott Arizona due to the state’s anti-immigration law.

    The paper says Elton told the crowd, “We are all very pleased to be playing in Arizona. I have read that some of the artists won’t come here. They are [bleep]-wits! Let’s face it — I still play in California, and as a gay man, I have no legal rights whatsoever. So what’s the [bleep] with these people?”

    Elton has lately made headlines for performing in places that many folks thought he shouldn’t. When several artists boycotted Israel in June over that country’s continued blockade of Gaza, he went ahead and performed in Tel Aviv. And he also played at Rush Limbaugh’s wedding, which horrified many fans, as well as some of Elton’s fellow musicians.

    Icy Texan (1fc458)


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