Patterico's Pontifications

7/29/2010

Arizona Ruling (At Urging of Obama Administration) Undermines “Deport the Criminals First”

Filed under: Court Decisions,Deport the Criminals First,Immigration — Patterico @ 7:04 am

On this blog I have had a recurring series called “Deport the Criminals First.” The idea is that, unless you are in favor of a complete open border policy, you would want to see the most undesirable illegal immigrants deported first: criminals, starting with violent criminals. I have therefore advocated checking the immigration status of every person arrested for a crime, especially violent crimes, and ensuring that we have sufficient resources to identify and deport violent criminals once they have served their sentences.

I see this as a completely noncontroversial and bipartisan proposal. I have repeatedly highlighted the tragic and often fatal consequences that visit victims when law enforcement fails to take this very basic step.

Professor William Jacobsen notes that, in the most startling portion of yesterday’s outrageous decision blocking implementation of most of Arizona’s immigration law, law enforcement officials are now apparently prevented from running such basic, common-sense immigration checks:

The inability of a state to implement a policy of checking the immigration status even of people already under arrest for some other crime is remarkable.

. . . . [S]tates already routinely run searches for a variety of statuses, including outstanding warrants, child support orders, and non-immigration identity checks. Each of these checks potentially could delay release of an innocent person or burden some federal agency.

The Judge’s reasoning, particularly that the status check provision violated the 4th Amendment even as to persons already under arrest, applies just as easily to these other status checks.

With a federal government which refuses to take action at the border until there is a deal on “comprehensive” immigration reform, meaning rewarding lawbreakers with a path to citizenship, this decision will [e]nsure a sense of anarchy. The law breakers have been emboldened today, for sure.

Understand clearly what is happening, according to Professor Jacobsen. Officials who arrest illegal immigrants for crimes, even violent ones, are apparently blocked from checking the immigration status of those suspects, under the reasoning of a decision that invalidates as unconstitutional a policy requiring such checks.

I have not read the ruling myself to verify this, but if this is true, it is stunning.

This can’t get to the Supreme Court fast enough. Let’s hope it gets there before Obama packs the court with more liberals who would turn a blind eye to common sense.

54 Responses to “Arizona Ruling (At Urging of Obama Administration) Undermines “Deport the Criminals First””

  1. Patterico, Liberals do not turn a “Blind Eye” to common sense, they wholeheartedly abandon it!

    PCD (1d8b6d)

  2. “The fix was in”

    Frank Drebbin (8096f2)

  3. You are correct. And the full import of the decision has yet to be seen. However, she did also say that law enforcement agencies can still enforce federal law, but apparently without interviewing the suspects about their immigration status. I am thinking even the 9th Circus will overturn part of her order.

    Federale (161898)

  4. “I am thinking even the 9th Circus will overturn part of her order.
    Not if reinhardt is on the panel

    Joe (4f02ff)

  5. We need to use this to make the Democrat defeat in November as stunning as possible. Double-digit Senate wins and 80+ seats in the House or some such. Make Obama such a repudiated albatross that no one in Congress will stand with him. Then “reform” immigration law so that this is no longer the issue, but rather the alternative: states that do not rigorously enforce federal immigration law lose funding.

    I’ve been of two minds about Mexican immigration for some time now, feeling that federal law unduly restricted it and that the illegals were an unsurpeising reaction. But it has gone way too far (10 million+) and the Left now views illegal immigration as some kind of right. It has to stop, and like most things that are left run amok too long, the stopping will be brutal. So be it.

    Kevin Murphy (5ae73e)

  6. Actually, Patterico, I don’t think the ruling goes quite that far. While it does say that authorities cannot condition release upon passing an immigration check (presumably since this would delay release for many legal residents), it does not say that an immigration check cannot be done.

    Assuming that the excerpts I’ve seen (including Prof Jacobson’s) are accurate, an immigration check that was completed during a normal period of incarceration would be valid under the rule. A violent criminal would normally be held (one would hope) for long enough for that to happen normally.

    Kevin Murphy (5ae73e)

  7. This entire controversy, the lawsuit, assigning a Clinton judge, is about politics. Obama wants amnesty and will block ANY immigration action until he gets what he wants, or is run out of town on a rail.

    MIke K (0ef8c3)

  8. OK Federal Government with your Mr. Smoothie president, don’t expect any local help if federal crime is committed. Banks to bombers.

    quasimodo (4af144)

  9. I believe she enjoined only some specific laws, however, she did so on grounds that support Jaccobsen’s concern that all checks by other than feds is now strangely off limits.

    I don’t think that will be the result in practice, but the opinion really had a presumptive quality in my opinion and maybe I just didn’t understand what it ordered. I think Jacobsen has a great point that if law enforcement doesn’t understand what’s been done, and recognizes the “lawlessness” of the policy at the moment, they would be reasonable to just abandon checking immigration status.

    I’ve heard a lot of Republicans, such as my Senator, Cornyn, say this isn’t a state’s place. I think we need to reevaluate that principle.

    The Federal government ought to be the authority on national defense, basic commerce among states, and immigration, but states should be able to step up when the federal government simply refuses to live up to her responsibilities.

    Some have compared this to Texas sending an Army. Do we really want Texas to be barred from self defense if they were invaded and the feds said they won’t respond? This is a silly hypo, but the point is not silly.

    I think we should ask our federal congress to pass a law giving stste courts or governors to right to determine that certain critical responsibilities of the federal government are not being met, and use that determination to activate a federal provision granting them the right to meet those responsibilities. Such as deporting criminals. We could keep this law specific enough to responsibilities that really are critical.

    What I find disturbing is that a lot of folks are cheering and protesting and even demanding that the actual laws of this country go unenforced. Foreign governments are insisting we not enforce our laws.

    Dustin (b54cdc)

  10. Since my last two comments never appeared (or were later deleted) I’m not going to spend much time on this. However, Patterico’s plan should be controversial because of the “first” part. What exactly does he want *after* the “first” part? “Reform”, aka amnesty?

    24AheadDotCom (f10ac5)

  11. Well, I will dissent a little here or at least point out a refinement. It depends on what you mean by “violent” offenders.

    Now maybe you mean this in the ordinary sense of the term. So rapists, murderers, maybe even drunk drivers (because even if they are not trying to hurt anyone, they are a serious danger to all of us). And if that is all Patterico means, I can be unreservedly down with that.

    But there is, as I suspect Patterico might know, a legal component to this. If you commit an aggravated felony, that is grounds for immediate deportation. If you are deported and reenter the country, it’s a crime, but if you do that and you have an aggravated felony in your past, you can go to prison for up to 20 years. And aggravated felonies are defined as various drug offenses and “crimes of violence.”

    The problem is that “crime of violence” has been defined my some courts so broadly as to be ridiculous. Like, okay, you could probably stomach us calling “drunk driving” a crime of violence because after all, you are likely to hit and kill someone. And you can understand how theft of an occupied car would count, because there is a high chance that someone might resist and the encounter will turn violent. Okay.

    But how the hell is theft of an empty car a crime of violence? Oh, because the court says that if you don’t own the car you are driving, you are more likely to drive dangerously. Um, huh?

    And then there are some people getting railroaded. I dealt with one guy who was a legal immigrant, and got in fist fight. He felt that he had a solid defense in terms of self-defense. But his dumbass public defender said, “don’t worry about it. just plead guilty, the prosecutor will recommend probation and that is it. As long as you keep your nose clean, you will be fine.” So he did and guess what? He was an aggravated felon. So they threw him out of the country—when if he knew that would be a consequence of that, he would never have pled guilty. Then, because he had family here and frankly because we have such a clusterf—k of a border situation, he sneaks back in and gets caught. So now it is up to 20 years in the clink.

    And the most foul thing about these prosecutions is that if you go through the congressional record it was exceedingly clear that the United States Attorneys were supposed to exercise discretion on the matter. This law was a classic example of what I call “The Al Capone Theory of Law Enforcement.” The theory goes like this. Al Capone was a mobster. But we didn’t convict him of the crimes normally associated with the mob. Instead we convicted him of tax evasion. Recently I saw some liberal on the Daily Show complaining that Capone was railroaded, that he got a sentence much harsher than most tax evaders of his “caliber.” Yeah, that was the point.

    By the way, there is another popular topic on this blog that also centers on this theory: the statutory rape rule. You can be reasonably sure that when Polanski was arrested, the prosecutors fully believed that he had done, as Whoopi called it, “rape rape.” But they busted him on the sex with a minor charge because that was easy to make it stick.

    So the statutes dealing with aggravated felonies was originally designed to be a tool for United States Attorneys to harass and eventually convict big time organized crime lords. But guess what? Big time crime lords tend to have lots of money and the United States Attorneys want to rack up convictions. So they choose instead to pick on the guy who doesn’t have a lot of money, they tend to do literally the opposite of what congress intended. Which isn’t illegal—I don’t believe that the statute should change because of congressional intent—but it still strikes me as a fubar situation.

    Now as I said toward the beginning, Patterico might have meant “violent” in the more normal way. Us lawyers are capable of talking like regular people. And if that was what he meant, I would whole heartedly agree and would add drug dealers to his list, but I can’t ignore that possible subtext, and felt like sharing in general.

    Aaron Worthing (A.W.) (f97997)

  12. Re #1, they gleefully abandon more than common sense. My Mom, age 80, forwarded something about illegals getting Social Security to my cousin. He wrote back an offensive email, calling her, among other things, a bigot.

    Their sense of moral superiority is more important to them than family. We need to recognize that we threaten their self-concept, and not minimize the lengths to which they will go to preserve it.

    This foolish ruling fits right in.

    jodetoad (7720fb)

  13. The reason we fear amnesty today is that we know that any concessions granted to compromise with us will simply be ignored.

    The deal was that we grant amnesty (in the 80s) and then immigration law is enforced. The beltway cheated, and sues to prevent the enforcement they promised. This outrageous lawlessness is why no one trusts a deal, or amnesty. Not to mention the flood of illegal immigrants.

    This is the more general issue, ignoring immigration itself: when the government simply refuses to follow its own laws, it’s very difficult to legislate new solutions.

    However, Patterico’s plan should be controversial because of the “first” part.

    I don’t think there should be anything controversial about deporting criminals. It’s just not addressing the rest of the problem. Specifically because that’s a tough nut to crack. So what?

    Dustin (b54cdc)

  14. Comment by Aaron Worthing (A.W.) — 7/29/2010 @ 9:56 am

    In CA, and many other jurisdictions (particularly with the Lautenberg bill[s]), simple misdemeanor battery will deprive you of your 2nd Amendment Rights for a period of at least five-years, with restoration possible only upon application to a judge (under CA law – Fed law IIRC is forever), which will result in a full-blown investigation and hearing (I was told to expect a legal fee of around $50K for the process by someone who was considering applying). All this for a simple fist-fight in a parking lot – and yes, alcohol was involved.

    AD - RtR/OS! (3c90d0)

  15. I don’t think there should be anything controversial about deporting criminals.

    Well, we could give them sky-diving training.
    The flights are shorter, so they wouldn’t involve the use of so much carbon-fuels…
    now, if we could only get funding for parachutes?

    AD - RtR/OS! (3c90d0)

  16. I don’t understand the decision on legal grounds–I always thought that as long as a local or STate law mirrored the federal law, that the state or local government could enforce. I take the judge’s decision to mean that the feds have exclusive jurisdiction, and if they choose not to do anything, too bad. I think she equates enforcement policy with jurisdiction and pre-emption.

    rochf (ae9c58)

  17. MD suggested this interpretation yesterday and I rejected it. It’s just too crazy, even though the reasoning supports this line of thought.

    Dustin (b54cdc)

  18. Too crazy for my imagination, anyway… I hate to say that things are getting crazier than I anticipate with regularity.

    Dustin (b54cdc)

  19. Is it possible that a case like this, between the fed exec and state exec would go to SCOTUS and bypass the 9th circuit?

    MD in Philly (3d3f72)

  20. No, MD in Philly, this kind of case does not skip the court of appeals.

    SPQR (26be8b)

  21. AD

    > yes, alcohol was involved

    When isn’t it involved? :-)

    Aaron Worthing (A.W.) (f97997)

  22. But his dumbass public defender said, “don’t worry about it. just plead guilty, the prosecutor will recommend probation and that is it.

    Which was almost certainly the right advice if the guy had been a citizen.

    Which makes me wonder which of the following happened:

    (a) the PD didn’t ask about the dude’s immigration status;

    (b) the PD asked and the dude lied;

    (c) the PD knew and didn’t check to see if there were unusual consequences because the dude wasn’t a citizen.

    aphrael (e0cdc9)

  23. Dustin opines: “I don’t think there should be anything controversial about deporting criminals.”

    Of course not. However, I don’t just want to do that. I also want to prevent future amnesties (or anything that’s an amnesty under other names) as well as discouraging future illegal immig. as well as intellectually defeating those who support illegal immig. Simply saying the “first” part isn’t that strong and it’s also putting the cart before the horse. If you want things to change, you’re going to have to help those who are willing and capable of engaging the other side and showing their supporters how they’re wrong.

    24AheadDotCom (f10ac5)

  24. 24ahead (I misunderstood your original meaning, btw), as long as everyone (sane) agrees that we should deport criminals… it’s at least a start. A weak start? Yeah.

    It’s not strong to say the ‘first’ part. But that’s what we’re left with. Just look at this mess! We can’t even check to see if illegals are illegal anymore. The government is suing to prevent enforcement of the enforcement side of the last Amnesty deal.

    This seriously poisons the well against any future negotiations. No one seriously believes that any concessions made by the beltway or the left will be honored. We know they will actually sue us to prevent enforcement.

    what would happen is that the left would get to import millions of voters, and we’d be back to new demands for a stop to enforcement and another amnesty down the road.

    I think we should completely abandon negotiating with amnesty. The public largely wants enforcement of the laws already, and the dang laws are on the dang books right now. Why negotiate to have popular laws enforced? We just need to ratchet up the pressure, the way Brewer has done, to get enforcement.

    Dustin (b54cdc)

  25. aphrael

    PD didn’t even ask. Which means in that case PD stands for “Publicly-funded Dumbass.”

    (okay i am cheating on the initials but f— it.)

    And i would say that is dubious advice even if he was a citizen.

    Aaron Worthing (A.W.) (f97997)

  26. OK, if the PD didn’t asks, he’s dumb.

    aphrael (e0cdc9)

  27. This decision also means that illegal alien status or information concerning aliens under deportation orders could not be used at bail hearings where risk of flight is of crucial importance. I though Sonia Sotomayor was the poster child for liberal idiots, but Judge Bolton beats her cards and spades.

    eaglewingz08 (74f660)

  28. Another question:
    Bolton specifically enjoined that portion of the law regarding “papers”;
    does that mean that the Federal requirements that resident aliens and visa travellers have their appropriate documents with them at all times is now moot?
    Will Federal officers be prohibited from asking for papers?
    There is a specific goose/gander question here.

    The more that you think about what this judge wrote, the less that you admire her judicial qualifications.
    This broad is just dumb!

    AD - RtR/OS! (3c90d0)

  29. AD – RtR/OS! #28 – I have a question sorta related to yours …

    If it is unreasonable to have legal residents provide the evidence of legal residence or wait while their legal residence is being verified, then does this not imply that it is unreasonable to require ID at White-House-related functions ?

    Alasdair (24a347)

  30. Alasdair – only if you think that you have the same right to attend a function at the white house that you do to not be detained by the police.

    aphrael (e0cdc9)

  31. Why wouldn’t we have a right to attend a function at the WH?
    The Government serves at the pleasure of the Governed, the WH belongs to the People, and all citizens in a Republic are equal before the law.

    AD - RtR/OS! (3c90d0)

  32. We here in AZ have been living since April in constant fear.The hands of law enforcement have been tied by a distant, detached,political elite..Robert Krentz was murdered..citizens are afraid to let their children walk alone to school bus stops.Drop houses,kidnappings.drug busts are everyday realities…last evening, 3 Phoenix officers were shot in a drug raid in S. Phoenix, 1 fatally. Our citizens, families and children, indeed a whole State of good people of all races, colors and creeds have been vilified as racists,ignorantly advocating for a ‘misguided’ albeit unread law from the POTUS on down through his administration, although ultimately, the lawsuit spoke to preemption..damage already done. The border remains porous & in want of immediate attention, while the environmentalists scream to save the brown coyote. At this point,humans beings would be best declared endangered to seek relief under protections of the most basic rule of Constitutional law.This now most recent purposeful,aggressive act of tyranny on the people of a sovereign State within the borders of a still sovereign Nation..it is stunning, indeed.

    azendangeredspecies (83f16a)

  33. I don’t know about ever deporting illegal criminals

    1st, even after they serve their sentence these criminals roaming free in another country – especially those with weapon violations, gang affiliation, drugs – they are a threat to this country and must be detained indefinitely

    2nd, prisons should be self funded – prisoners should work for factories be paid a dollar an hour and the rest should be divided between the state and the victims where applicable – prisons should rapidly teach skills, those who refuse to work face longer sentences and loss of all prison privileges.

    3rd, get rid of entitlements – this is all about the rising out of control costs of free healthcare and free schooling 1/13th of the economy or more is spent on education – time for everyone to pay the costs of raising their own kids legal, illegal and space aliens – everyone.

    4th States need to appoint their congressional delegations like in the old days – at least the senate – we need to have a constitutional amendment for that – you get a more responsive less out of touch congress when they are not sitting on multi-million dollar fundraising apparatus’ and its more difficult for journolist, and the alphabet networks to concentrate on thousands upon thousands of state legislators than working their slimy propaganda campaigns focused on a handful of super senators – this would make the congress reflective of the current moods and swings in popular sentiment and less on 90 year old doddering demagogues

    EricPWJohnson (ab6cc8)

  34. The trouble with “Deport the criminals first” is the suggestion that the other illegals are not criminals. They are.

    Subotai (85f322)

  35. “I don’t understand the decision on legal grounds”

    There are no legal grounds. This was a horrid and political decision bereft of real legal sense.

    Travis Monitor (9e3371)

  36. How about a compromise:
    1. Annex Mexico, they want to come here, fine- but you must follow our laws, pay taxes,etc.
    2. Move all Mexicans into the US.
    3. Give Mexico to the Israelis in exchange for the current nation they hold.
    Result, solve both problems and have a strong ally on our back.

    Economically, it would be great. No more aid to Palestine, no more victim inc. in the middle east, we could go to Mexican resorts without fear of getting shot.

    I can dream.

    SpeakEasy (f0218c)

  37. Move all Mexicans into the US.
    Give Mexico to the Israelis in exchange for the current nation they hold.
    Result, solve both problems

    How does moving all Mexicans to the US solve the problem of Mexicans moving to the US? I missed that part.

    they want to come here, fine- but you must follow our laws, pay taxes … vote in our elections for people who’ll make Obama seem like a moderate, etc

    Subotai (85f322)

  38. Meanwhile, the Obama administration is trying to find ways to implement their amnesty agenda without … you know … actually legality in the form of democratically adopted legislation.

    SPQR (26be8b)

  39. Subotai is about to get ripped again, but he’s got a point. A lot of Mexicans, especially poor illegals, would obviously vote for social welfare. That’s why the democrats are importing them and want to give them ‘amnesty’ again.

    We should want individually responsible immigrants. I could care less if we have many immigrants who are Hispanics, but they should be deported if they go on any dependency, commit any crimes. I also think it’s necessary to speak a common language. We should be one country in that basic way.

    Dustin (b54cdc)

  40. Dustin,

    This is why entitlements must be scaled back for complete phase out – we are enslaving generations upon generations with this voe buying schtick that has to end

    EricPWJohnson (0f0a26)

  41. Now libs all busy
    comparing law to Berlin
    Wall and internment

    ColonelHaiku (ac3c3c)

  42. The Beltway gang is going to have this explode in their faces come November. A lot of people are sick and tired of the attitude that illegal immigrants have every right to come here in violation of our laws. The Beltway-ites tend to listen to each other too much, and to other people not enough.

    Technomad (e2c0f2)

  43. A couple weeks ago I wrote a post about how the drug cartels are here in my county, growing weed in any canyon that has water, and killing their workers who steal a little bud or maybe are thought of as snitches… last year they shot a guy in a vineyard… this year they set the “mexican national” on fire… touching off a small brushfire up at a rest stop by Mariposa Reina up on the Gaviota coast.
    The grows got raided after the body was found….

    So, maybe it was “one of their own… no harm, no foul” but can we pretend that this kind of brutality should be ignored or diminished?
    Only animals would set someone on fire and leave him to die over a marijuana grow…

    These guys deserve the death penalty… not deportation.

    SteveG (d45bb7)

  44. Subotai is about to get ripped again

    I am? I was in the past?

    Subotai (821c7a)

  45. Yeah, in some other immigration thread, you commented that a mostly Hispanic USA wouldn’t be what America was supposed to be. As far as I can tell, you just mean that a lot of these people would vote for socialism, same as if America was 90% Bostonian, but some thought you meant something else.

    Dustin (b54cdc)

  46. Does anyone know whether this Constitutional clause would allow for Arizona to bypass the 9th Circuit?

    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.

    Megan (356b88)

  47. Comment by Megan — 7/30/2010 @ 9:21 am

    Megan, Megan, Megan…
    This is the Obowman Administration, they aren’t limited by Constitutional restrictions, or anything else it seems.

    AD - RtR/OS! (595de0)

  48. AD – who cares about the administration? Whether the Supreme Court takes the case directly is a decision made by the 8 people on it, only 1 of whom was appointed by the current President, and only 3 of whom have been appointed by Democrats.

    aphrael (e0cdc9)

  49. The InstaPundit notes that a vast majority of the American People want a real fence along the border, but the vast majority of “the Political Class” in DC is opposed.
    My message to him:
    “..‘But while 76% of Mainstream voters think the United States should continue to build the fence, 67% of the Political Class are opposed to it.’
    Simple solution: CHANGE THE POLITICAL CLASS, replace ALL incumbents in 2010, and again in 2012, rinse and repeat as necessary.”

    If not now, when?
    If not by us, by whom?

    It is time, once again, to reform the Union, in order to establish Justice, insure the domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.

    AD - RtR/OS! (595de0)

  50. Comment by aphrael — 7/30/2010 @ 10:18 am

    In case you failed to notice, it was the Obowman DoJ who filed this suit in the District Court for AZ instead of at SCOTUS.

    A Disrict Judge who actually knew the various provisions of the Constitution she is sworn to uphold and defend from all enemies foreign and domestic,
    would have directed DoJ to the proper venue for their hissy-fit.

    AD - RtR/OS! (595de0)

  51. search for the missing “t”…..
    Ah, found it: District.

    AD - RtR/OS! (595de0)

  52. AD – sure, but Arizona ought to be able to appeal directly to the Supreme Court, regardless of what the DOJ does.

    aphrael (e0cdc9)

  53. Why aren’t they then?
    The appeal is being filed in the 9th as we speak – perhaps the fact that SCOTUS is on vacation (historically they would be out “riding circuit”) has something to do with it, though I have seen reports that a hearing at the 9th will probably not be possible to schedule until after Labor Day (most likely due to their Summer Vacation schedule).

    AD - RtR/OS! (595de0)

  54. I asked the SCOTUS question ae #19 (though much less eloquently) and SPQR said no, but didn’t give a reason. (But I didn’t ask a reason, so that was OK for me.)

    MD in Philly (3d3f72)


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