What the Arizona Court Order Actually Says

There seems to be some confusion about the prelimiary injunction ordered by U.S. District Judge Susan Bolton with regard to Arizona Senate Bill 1070. Reading both the press and the blogs, there are misunderstandings, misconstructions, oversimplifications, and lots of rhetoric, especially wondering how the judge could rule this way when (they presume) the Arizona law mimics federal law. I have read the court order and this is my legal – not political – analysis:

The judge started off by explaning which provisions of the statute are being enjoined from enforcement and which are not. Almost all of the statute stands and is enforceable pending trial on the merits. Four narrow provisions are temporarily enjoined. She concludes this section by stating the legal basis of the injunction, viz., that the moving party is likely to succeed on the merits with regard to those provisions when the case is tried and the moving party would suffer irreparable harm if the court does not provide preliminary relief, as well as the tests of the balance of equities and public interest. This is the same standard used in any case.

In the next section, the judge provides a good overview of federal immigration law that is worthy of reading by a lot of people here and on other blogs who seemed to be confused by it. There is a good overview of the relevant portions of SB 1070.

The judge then gives a good explanation of why she cannot and will not enjoin all of SB 1070 as the Government moved.

Addressing each provision, she starts with Section 2(B), which does not mimic any federal law, but says that if someone who is stopped, detained, or arrested is suspected of being an unauthorized alien they have to have their immigration status determined before they are released. This places a substantial burden on both citizens and lawful aliens (citing Hines v. Davidowitz), as well as a burden on federal resources (citing Buckman Co. v. Plaintiffs’ Legal Comm.) forcing reallocation of resources from higher priorities directly related to national security. The judge then footnoted the possible 4th Amendment issues, but did not use them as the basis of her ruling.

With regard to Section 3, this also does not mimic federal law, but rather creates a separate state offense with state penalties for violating a federal law. This runs contrary to Hines in several ways as clearly set out. Not really a shocker. Preemption is pretty obvious and success at trial very likely.

With regard to their Section 4 challenge, the Government is not likely to succeed, because they are seeking to enjoin a section of the statute that was amended by Section 4 of SB 1070 but not the actual change brought about by Section 4. No injunction.

The injunction with regard to Section 5 involves the portion that criminalizes unauthorized aliens who attempt to get work or actually work. Again, this does not mimic federal law. Congress specifically did not impose criminal or civil penalties on employees when it chose to do so on employers. The judge ruled that because the Arizona statute conflicts with a comprehensive federal scheme, it is preempted.

The Government attempted two further injunctions with regard to Section 5 but did not succeed.

Section 6 of SB 1070 does not mimic federal law and provides that an officer may arrest a person without a warrant if the officer has probable cause to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States.” This would include any offense that might have been committed at any time outside of Arizona. The judge cites Justice Alito in Padilla v. Kentucky:

providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex. “Most crimes affecting immigration status are not specifically mentioned by the [Immigration and Nationality Act (INA)], but instead fall under a broad category of crimes such as crimes involving moral turpitude or aggravated felonies.” M. Garcia & L. Eig, CRS Report for Congress, Immigration Consequences of Criminal Activity (Sept. 20, 2006) (summary) (emphasis in original). As has been widely acknowledged, determining whether a particular crime is an “aggravated felony” or a “crime involving moral turpitude [(CIMT)]” is not an easy task.

As a result or this and the fact that it would also require Arizona officers to make judgments with regard to non-Arizona statutes, Judge Bolton ruled:

Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new A.R.S. § 13-3883(A)(5). By enforcing this statute, Arizona would impose a “distinct, unusual and extraordinary” burden on legal resident aliens that only the federal government has the authority to impose. Hines, 312 U.S. at 65-66.

The judge concluded her order with a detailed explanation of how the provisions she enjoined meet the standards for injunctive relief. This is set out in a clear and reasonable way.

Judge Bolton’s ruling may not be popular, especially in Arizona. That is part of the separation of powers. It is not a judge’s job to do the popular thing. That is why federal judges are not elected. The rule of law and the current will of the people may not be the same thing.  Judge Bolton did not rule in any activist way. She did not bend to the will of the Obama Administration.

If you wish to substantively disagree with my legal analysis, or make other substantive comments, feel free to do so.

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A Matter of Sovereignty

Let me say up front that I agree with David Cameron: Abdelbaset Ali Mohamed Al Megrahi should not have been released from prison. I think he was a fall guy for what was a Libyan government planned and executed operation, but he was convicted and barring a successful appeal, he should have stayed in prison.  However, I think the U.S. Senate is way out of line in investigating his release.

This goes back to my most recent post: it is consistently the view of the US government – at least of the Executive and Legislative branches – that the sovereignty of other countries is always secondary to American interests. The Senate has invited Scottish Justice Minister Kenny MacAskill, Scottish prison health director Andrew Fraser, former UK Justice Secretary Jack Straw, and former Prime Minister Tony Blair to appear before it to answer questions as to how and why Megrahi was released from prison on compassionate ground. (This despite the fact that Blair had been out of office for nearly two years at the time of the release.)

Though I have no political affinity to any of the Brits invited, I have to agree with the assessment of Jack Straw:

“It is, in my experience, highly unusual for the legislature of one sovereign state to conduct an inquiry into decisions of another sovereign state, including, as in this case, decisions by a devolved administration on the release of a prisoner. There are therefore important issues of principle here which could affect UK governments of any party, and which will need carefully to be considered before I come to a final view.”

In other words, it is none of their business. The crime occurred over Scottish airspace. Even if the bomb was put on the plane somewhere else, at no time in question was the plane in the United States or its airspace. Neither was it even in international airspace, as the death of 11 Scots killed on the ground in Lockerbie made clear. Scotland had jurisdiction then and it has jurisdiction now. It may come as a shock to a lot of Americans, but killing Americans somewhere in the world does not give the government of the United States jurisdiction over that place or the power to investigate their killing. If Americans leave the sovereign territory of the United States, they assume the risk that they may come to harm without the US Government having the right to vindicate their cause.

Perhaps it is David Cameron’s admission that the UK is the junior partner in the Special Relationship both now and for at least the past 70 years that has emboldened the Senate Foreign Relations Committee to think its senior status carries some sort of weight.

Even if, as has been strongly insinuated by New Jersey Senator Robert Menendez, BP lobbied – or even, as has been suggested – bribed UK or Scottish officials or ministers, it is not the business of the US Senate. That is true even though BP is responsible for that terrible oil spill in the Gulf of Mexico and apparently needs to be punished further, whatever excuse can be found. If there has been impropriety, it is for the UK government to investigate.

Let’s put the shoe on the other foot, since 67 British people died as a result of the 9/11 attacks. Mohammed al-Qahtani, the alleged 20th hijacker, has been tortured and charges against him have been dropped, re-instated, and dropped again.  Should the British Government open an inquiry and invite US officials to appear before it to answer for how they have dealt with it? Should British parliamentarians and ministers be demanding explanantions? If the American public learned of such an inquiry – that is, if the American press even took it seriously enough to report it – the public would be everything from bemused to outraged that another country would think it had jurisdiction to demand American officials explain themselves.

Sovereignty is sovereignty. It’s time the US respected the sovereignty of other nations to the extent it demands respect for its own.

The Heresy of Exceptionalism

A Facebook friend recently posted a link to an article/newsletter by David Barton. Normally I am loath to read anything by Barton (the self-proclaimed “renowned historian” without even an undergraduate history degree or any clue about historical methodology), but since this had to do with Texas politics and particularly the Speaker of the Texas House of Representatives, I thought it might be worthwhile to give it a look. Barton’s contention is that Speaker Joe Straus isn’t really a conservative and not much of a Republican. Fair enough.

But what really caught my eye was an attack Barton made on one of Straus’ allies. After commenting on a piece of pro-life legislation that State Affairs Committee Chariman Burt Solomons prevented from reaching the floor of the House, he says, “Incidentally, as a reflection of Solomons’ philosophy, he had previously even objected to teaching that America is a blessed and unique nation – i.e., American Exceptionalism…” There’s no indication as to whether Solomons currently objects to this teaching, and the comment is a bit of the cheap ad hominem that is sadly found pervasively in conservative circles.

In my youth I imbibed heavily from the trough of American Exceptionalism and have held to it explicitly or implicitly for most of my life.  As a result, I have done the only logical thing: I have repented.

America has been a blessed and unique nation, but recognising this is not adhering to American Exceptionalism. Many nations have been blessed and all nations are unique, but this is not what David Barton believes. American Exceptionalism is the teaching that the United States is special above all other nations – that God has blessed America and likes America more than the others.

American Exceptionalism has been used as an exemption from the law of nations. The attitude is that international law may apply to the rest of you but it doesn’t apply to us, because we’re special and we don’t have to play by everyone else’s rules.  We will tell you what you can and can’t do in your country, but don’t you dare tell us. In fact, international law so doesn’t apply that we can violate the sovereignty of other countries and have done so with impunity. All countries are sovereign, but some countries are more sovereign that others. The sovereignty of other countries is always secondary to American interests.

This doctrine of American Exceptionalism is not something new. One hundred and seventy years ago it was called Manifest Destiny (though the term is often used for the period between 1812-1860, it was coined in 1839 and only came into common use around 1845). It was used to justify the expansion of the United States at whatever cost. The biggest acquisition was 42% of Mexico as a result of the Mexican War, which started as a dispute over the territory between the Rio Grande and Nueces Rivers in South Texas. This is a bit like taking an area twice the size of France as the result of a dispute about an area the size of, for example, Alsace-Lorraine. This area now contains over 16% of the US population, so it could be argued that we eventually needed the lebensraum.

It was also the justification to gain control of much of the central part of the continent that had been purchased from a European power which claimed it by right of conquest.*  Most of the inhabitants were completely unaware they had been conquered. When they objected to their lands being taken by white folks, the US Army brought this to their attention. They were, after all, savages, so it was okay to kill them. Having no concept of private property, they also had no property rights, so it was only right that it should be taken over and controlled by folks who understood their God-given right to plat and deed every inch land. Now it must be said that out of the goodness of their heart, the American government did reserve some of the Indians’ own land for them, force them to live there, and shoot them if they objected.

The most extraordinary thing about this American Exceptionalism is that it is generally agreed to have its roots in a thesis (it is often called a sermon, but we have no record of it ever being spoken to a gathering of people in church or otherwise) by John Winthrop, written aboard the Arbella on the way to Massachusetts Bay in 1630. The thesis was called “A Model of Christian Charity”. It is best known for the phrase “city upon a hill” which appears near the end.  I reiterate that this is an extraordinary thing, because there is nothing in Winthrop’s thesis that supports the idea of Exceptionalism or Manifest Destiny. If you doubt me, you need to read it. I welcome you to challenge my understanding of it.

“A Model of Christian Charity” is explicitly an exhortation of how the Massachusetts Bay colonists should behave toward one another. This is based upon their religious covenant to each other. Winthrop does say that what they are doing is extraordinary – not in founding a nation that would stretch from sea to shining sea, because they did not see themselves as founding a country nor did they have any concept of the size of North America. They saw what they were doing as extraordinary, so that living by the Golden Rule was going to be essential. The avoidance of usury was going to be essential. Being knitted together as the body of Christ was going to be essential while they struggled to hang on to an existence on the shores of New England.

I have outlined (barely) some of the practical results of Exceptionalism. I have demonstrated, if only enough to encourage you to read the original document (David Barton would be proud), that the connection with the Puritans and the “city on a hill” is non-existent. But none of that relates to the most important aspect of all and the reason I have titled this essay as I have. None of this is the reason I have repented.

Exceptionalism is a heresy. The more one tries to support it with a religious foundation, the more heretical is becomes.

Americans are not God’s chosen people. The Church is God’s chosen people. The Church includes some Americans. Americans do not even make up the largest fraction of national representation in the Church. (That would be the Chinese. Current estimates indicate that there are likely more Christians in China than there are people in the United States.) When St Peter said, “But you are a chosen generation, a royal priesthood, a holy nation, His own special people, that you may proclaim the praises of Him who called you out of darkness into His marvelous light,” he was referring to the Church.

In that oft-used phrase, John Winthrop refers to Matthew 5:14 – “You are the light of the world. A city that is set on a hill cannot be hidden.” The “you” to whom Jesus is referring are His disciples – those who are hearing and following His teaching – the Church. Winthrop was referring to his fellow Puritan settlers as Christians living out the Gospel, not to the Declaration of Independence, Constitution, or a democratic Republic, which would have been the furthest things from his imagination.

With all due respect to Ronald Reagan, who co-opted Winthrop’s phrase in his Farewell Address, as well as by his own admission having use it all his political life, the city on a hill is not prosperity nor is it freedom. No, if we go back to the Original Document and Original Intent (I hope David Barton would be pleased), the city is the light of Christ. Inasmuch as it refers to freedom, we would have to cross-reference to John 8:38, “Therefore if the Son makes you free, you shall be free indeed.”

Has the United States been blessed? Certainly. Has the US as a nation done some good things? Of course. Has this blessing been because we have somehow fulfilled Winthrop’s vision for Massachusetts Bay? Absolutely not. It has been by the grace and mercy of God, despite some very terrible shortcomings as individuals and as a nation. How dare we say, “Our fathers expanded and built the United States this way and look at how God has blessed us – surely this is evidence of our righteousness!”

Everyone knows the bit of Winthrop’s thesis that says, “For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us.” The important bit follows: “So that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-word through the world. We shall open the mouths of enemies to speak evil of the ways of God, and all professors for God’s sake.”

As Christians we are the light on a hill. It is we who have a responsibility to live out the Gospel. Not because of what John Winthrop wrote and a connection we feel to the Puritan fathers, however tenuous that may be. Not because we are Americans. Because we are Christians. We have a responsibility to live charitably toward one another. Again, if you want to know the characteristics of the city on a hill as outlined by Winthrop, as true and biblical today for all believers, read the whole thing.

God does not love America more because some of the first white settlers of an area that eventually became a colony and eventually broke away from England were good Christian folk. (And just for the record, we have no covenantal connection to those good Christian folk of Massachusetts Bay, so we are not reaping what they have sown. But that’s an article for another time.) Nor does He love us more because a lot of people that were involved in the American Revolution and the Constitutional Convention were Christians and even those who weren’t occasionally used Christian shop talk.  Nor does he love us more because we are a democratic Republic that has tried to spread our form of government around the world, whether other people wanted it or not.

I’m blessed to be an American, but that does not make me special to God, nor did it make the generations of my forefathers going back to colonial times any more special to God. Nations rise and nations fall. The United States hasn’t been around all that long and it won’t be here forever. God operates on a completely different time scale.

The exceptional thing is that while we were yet sinners, Christ died for us, whether we were blessed to be born in America, Europe, Africa, Asia or anywhere else. As the Church, we are God’s special people and unique nation. That is the Gospel.

*Technically, it was purchased from a country (France) which acquired it in a treaty from another country (Spain) which had acquired it in a treaty from the first country (France), which had laid claim by conquest.

Why I’m Giving Up My American Citizenship

This might have been a better post for the Fourth of July, but most readers were probably out watching the fireworks and wouldn’t have seen it. So perhaps it is better to write it and post it today.

Yes, it’s true. Soon I will no longer be an American citizen.  Don’t worry, I won’t be a British citizen either. I’m giving up both citizenships. But then again, so are you. Whichever one you have. The reason is very simple. I’ll be dead and so will you. Heaven doesn’t take passports. Hell doesn’t either for that matter. (And if you are one of my atheist friends who doesn’t believe in either and thinks you will just cease to exist, annihilation brings loss of citizenship, too. But I’m going to continue in a Christian perspective…)

I say soon, because this life is but a moment, whether you live one year or one hundred. Kerry Livgren described us as dust in the wind. Moses, in Psalm 90, says were are like grass that grows up in the morning and in the evening whithers away.

Even in that moment, it will have mattered very little. If there was pride to be had in American citizenship, I think I could have it. I could sound like St Paul in Philippians 3:5 describing his Jewishness. I am of the stock of the United States, of the state of Texas, an American of the Americans; concerning the law a Strict Constructionist; concerning zeal, persecuting the liberals; concerning the righteousness which is in the law, a law-abiding citizen. I can trace my lineage in North America to before the American Revolution several times over.

If God has so chosen, I may be an American for another 46 years, maybe even a bit longer. I’m going to be stateless for eternity. In between is the Judgement Seat of Christ. As far as I know, the relative zeal of my flag waving will not be mentioned. My committment to national sovereignty probably won’t be challenged. There may not even be a query about whether I supported and defended the Constitution. Now I don’t know all the questions that Jesus is going to ask me or you, so you may dismiss this as pure speculation. However, I believe there is a practice exam with the correct answers in Matthew 25.

For as long as I’m an American and living inside the United States, I will participate in civic activities, including voting in elections for those candidates I think will best preserve the good things about the United States for future generations of blown dust and whithering grass. After all, living in the US provides one of the best opportunities for a life of relative ease and safety and modern conveniences. And liberty and justice for all, of course.

Now as I understand it, this life of relative ease and safety and modern convenience is a scare commodity and can’t be spread too thin, or people start to suffer. Well, not suffer, exactly, but their quantum of relative ease and modern convenience could be marginally reduced. Therefore if anyone is going to be allowed come along and enjoy it (along with that liberty and justice for all, of course), they need to prove that they will be net contributors, and we’ve set up rules to make sure that’s the case.

People who arrive with needs will only be a drain on the whole system of relative ease and modern convenience (though not necessarily on liberty and justice for all, but that’s secondary, really). So as it has been explained to me by those with minds greater and sharper than my own, it is my civic duty to keep them out. An example of drain is having to print things in other languages. (I’m guessing this causes massive demands on both the ink and paper industries, with a domino effect on the rest of the economy.) A country needs to have everyone speak and write one language. Otherwise we end up like Canada, Belgium, Switzerland and the UK. Where would we be then? Even if some people get in who have needs, but I’m sure Jesus is going to understand if we insisted that they learn English first.

Real Americans don’t like socialism. Except for Social Security. Even the most conservative Republicans will not touch the socialist/ponzi scheme that is Social Security. It is possible that those who come here to drain the system will end up getting a Social Security number, working forty quarters, paying in, and drawing benefits. Benefits that are for American citizens who worked forty quarters and paid in. There’s no actual legislation pending that would give the drainers a chance to do this, but all good Americans are upset that it could happen, and I’m sure Jesus understands that.

Social Security is one thing, but health care is another. While we tolerate providing minimal health care to the poorest of the poor, people who arrive with needs have been known to receive health care this way. Once again, they are putting a drain on the relative ease of those born here or invited here because they are net contributors.  Jesus understands this.

I hope so, because after I give up my American citizenship, I will have to answer for how I used it. No, there won’t be questions on the flag, sovereignty and the Constitution, but there is an awful lot covered on that practice exam in Matthew 25.

In sermons, my father often quotes a couplet from his childhood for which the source is unknown, but the sentiment entirely biblical:

Only one life, ’twill soon be past,
Only what’s done for Christ will last

What’s done for Christ?

Assuredly, I say to you, inasmuch as you did it to one of the least of these My brethren, you did it to Me.

Standing before Christ, it may be possible to plead that while being personally supportive of those in need, volunteering at the soup kitchen, putting change in the poor box at church, and sending a check to the charity of your choice (those people who look after other people for a living so as not to interfere with your relative ease and convenience), as a voting member of the State, your civic duty was to look after the relative ease and modern convenience of your former fellow citizens and keep others away from liberty and justice for all, at the point of a gun or the barbed wire of a fence if necessary.

You go ahead and try that approach. I’ll have enough on my plate that I won’t have a chance to look over, give you that Sarah Palin wink and say, “How’s that workin’ for ya?”