The Sound of Silence

It was covered by Fox, but not as a major story. It was also buried in the ABC News.  But CNN, MSNBC/NBC News, CBS? Nothing. Breitbart? Nothing. Redstate.com? Nothing. After Arizona’s SB 1070, there was a general uproar for other states to follow suit. Now that Utah has, nobody’s saying anything.

Utah passed HB  497, with the same sort of enforcement provisions as Arizona’s SB 1070, except that it focuses on felony and serious misdemeanor suspects. It passed with strong support in this conservative state with Republican super-majorities in both houses. So where is all the flag-waving and cheerleading we have come to expect for such measures?

Utah even got innovative and the same overwhelmingly Republican legislature also passed HB 116. That’s the guest worker program for undocumented aliens. As I recall, a lot has been said about Washington in general, and the administration in particular, not dealing with the immigration issue, so it is up to the States to fill the gap. Isn’t this what everyone wanted? A solution by conservative state legislators to deal with all the undocumented workers?

When I saw that this legislation had passed, I thought that when or if I blogged about it, I would be lost in the thunder of all the bigger louder voices. It now appears I will be lost to the deaf ears of apathy.

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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.

Why the Arizona Law Will Not Affect the Drug Wars

I will get back to the fine print of the Arizona law (I know you just can’t wait) but I have been informed by a friend living on the Mexican border that I can’t make any argument at all about illegal immigrants without including the drug cartel wars. I alluded to it in the previous post, but I will be more explicit about it here.

The drug war is one of the reasons the Arizona law is wrong. There I’ve said it. Those of you who don’t want to hear why (and you know who you are) can change the channel now. For those who have asked for an explanation and those who want one, stay tuned because here we go.

There is nothing in SB1070 that will do anything to stop the violence on either side of the border. At best, a drug runner or cartel operative might get pulled over for a broken tail light or coasting through a stop sign and get put through the Arizona system. If he has a gun or drugs with him, ICE might even deport him. For the drug cartels this is merely a cost of doing business and not a very expensive one. SB1070 is not going to build that much dreamed of impenetrable wall along the 1969-mile length of the border. It will not even build one across the 350-mile length between Arizona and Mexico.

In terms of stopping traffic between Arizona and Sonora, SB1070 will do nothing. The border is still the jurisdiction of the federal government. All Arizona is doing is trying to make them not want to come to Arizona. The drug traffickers and people traffickers don’t care whether Arizona allows illegal immigrants to get welfare benefits. The kind of work they are doing is not going to be affected by the new law making it explicitly illegal for an illegal to work in Arizona. SP1070 is not going to increase their visibility to Arizona law enforcement officials, who are supposedly going to be doing what they claim the federal government and federal law enforcement authories won’t do. The people traffickers are not going to lose any business, because the people they are trafficking are not trying to get to Arizona. They are trying to get to the United States.

This now leads to the moral issue. Why are all these people trying to get to the United States? Is it just so they can kill American ranchers? If you honestly believe that, then I have some ranch property on the Moon I’d like to sell to you. If you lived in a place where more than 20,000 murders have taken place since 2006 and both the police and army are incapable of even reducing the rate, not to mention come close to actually stopping it, would you not be trying to get away at all costs? Would you not be seeking refuge in a country where the white people don’t like you, and the authorities might harrass you, but you have a much bigger chance of staying alive?

The drug wars on the border – which are much, much worse  – astronomically worse – on the south side than on the north side – are a reason that we should be letting people into the US.

If I may analogise to all of my friends who have NRA bumper stickers, if immigration is outlawed, only outlaws will immigrate. In other words, just in case I haven’t made it clear enough, people who are coming into the US with criminal intent are not going to be stopped by laws saying they can’t be in the US (or Arizona). Those with crminal intent are not going to stop at border check points and hand over their weapons, drugs or people.

There is a much published and circulated explanation by Arizona State Senator Sylvia Allen regarding why she voted for SB1070. She was heavily motivated by all of the violence within 60 to 80 miles of the border, including the rancher who “In the last two years he has found 17 dead bodies and two Koran bibles.” (I have no idea what a Koran bible is, or why one would find it in the Arizona desert – perhaps it is an al-Qaeda conspiracy terrorise the border region.) She is very clear about how the federals cannot/will not control the border, even though she is certain “We have the technology and we have the ability to stop this invasion.” She never explains what this technology is or how SB1070 will now allow Arizona (which she admits is not only out of money but in the red) to use this technology.  If anyone will read Sen. Allen’s open letter carefully, they will see that it is all fluff and no substance. Please, someone actually show me the substance.

Sen. Allen and others bend over backward to assure everyone that SB1070 only allows Arizona law enforcement officers to stop someone due to reasonable suspicion of committing a crime to see if they are an illegal. If they are stopping someone on suspicion of murder, human trafficking, drug trafficking or related crimes, whether or not that person is an illegal is the least of their worries! And whether Arizona officers are investigating these crimes should have nothing to do with whether they were perpetrated by illegals. Violent crime is violent crime – something they are supposed to be addressing anyway. SB1070 does not give them any additional powers in the actual interdiction of crime.

That’s the problem with everything I’ve read by the pro-SB1070 people. It is all sword-rattling rhetoric. When it comes down to it, people like SB1070 because it appears to be doing something. Form over substance. Smoke and mirrors. No one can tell me anything about it other than, “Well, at least they are trying.” So what? What difference does that actually make, beyond creating an ephemeral feel-good factor of camaraderie amongst like-minded individuals? At the same time, it is not conservatively politically correct (yes we have a PC problem as well) to suggest that we address the problems that can be addressed and face up to the real moral questions.

Again, I challenge any reader – and yes, my stats show that there are some of you out there – to show me how SB1070 is actually going to deal with the issues of border violence, drug trafficking, and all of the nerfarious things that are happening.

The Fine Print

There are so many things that can be written (and mostly not read) about new Arizona law or about the issue of illegal immigration. As this resolution from the National Association of Evangelicals (followed up by this ad in Roll Call) shows, I can be encouraged that I am not the only conservative who will admit that something needs to be done other than shipping them across the border, Do Not Pass Go, and above all else Do Not Collect $200.

Before addressing the fine points of the Arizona legislation, let’s look at the big picture. A good friend of mine is an immigration lawyer and for those who vet  sources by ideology or theology, he is conservative both politically and theologically. In a recent email (and with permission to reprint) he said:

Regarding the ~12 million people here illegally now.  I am pretty brutally pragmatic about this.  I move right beyond the moral issues about whether we should grant amnesty to the practical conclusion that we have no choice.  We simply cannot deport all these people.  We cannot just send ICE buses into neighborhoods, round up 12 million people (the population of a pretty good-sized state) and drive them to the border.  Under the Due Process Clause, every person allegedly in the US illegally gets a hearing before an immigration judge in immigration court before they are deported.  You will need to confirm the numbers, but I think our entire immigration court system can process about 300,000 to 350,000 people a year.  At that rate, it would take about 35 or 40 years to deport the 12 million people here now, assuming no more came in.

So the Arizona legislation won’t work. It will work even less if other states take up the same legislation. The essence of the Arizona bill is nothing more than NIMBY- Not In My Back Yard. (From section 1: The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona.) But if the federal court system can’t handle the numbers (that’s after all the added work for the Arizona court system) they have no choice but to release everyone that Arizona rounds up. As many of these people who are able will probably move out of Arizona to avoid having to go through that again, so Arizona’s loss will be the gain of another state. So if you are in a state other than Arizona, the Grand Canyon State wants her problems to be yours.

So how is this attrition of illegals in Arizona supposed to be accomplished? Here’s the rest of section 1: The provisions of  this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. More specifically in section 5: IT IS UNLAWFUL FOR A PERSON WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS AN UNAUTHORIZED ALIEN TO KNOWINGLY APPLY FOR WORK, SOLICIT WORK IN A PUBLIC PLACE OR PERFORM WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR IN THIS STATE. (I’m not shouting – it’s all caps in the original.)

Simple enough. We don’t let them work. If they have no money, they’ll have to go on welfare. Oh, except that Arizona passed HB 2008 last year [codified as ARS §§1-501(E) and =502(E)]  that not only denied benefits to illegals, but makes it a crime punishable by four months in prison for an government worker who does not report to immigration authorities any illegal immigrant who requests benefits even if they are requesting them for a citizen child entitled to them, even if they discover the information in casual conversation. According to the the opinion of the Arizona Attorney General, this includes emergency health care, emergency disaster relief, and immunization.

All the better, you say. If ICE won’t do the job, Arizona will. The message: no work, no welfare or healthcare (even for citizen children of illegals), no problem. You have to leave Arizona or starve. Or get diseases from which everyone else gets immunized. A little polio or tuberculosis or rubella will teach you. Get back over the border. Duck if you hear any gunfire. But that’s where you were born and that’s what you deserve. You might not be one of the next 20,000 killed.  And if you just won’t leave this wonderful country that loves legal immigrants who are from eligible countries of origin and have paid lots of money and suffered through years of red tape, at least go to California or New Mexico or Indiana or Texas (Hoosiers and Texans will be glad that you probably won’t get that far).

I’ve only touched on a tiny part of the new Arizona law. Every section, sub-section and clause deserves to be examined closely. For example, section 3 makes it a crime in be anywhere in Arizona without proper federal immigration status, subject to (in addition to the provision of federal law) six months in an Arizona jail and a $2500 fine plus:

C. A PERSON WHO IS SENTENCED PURSUANT TO THIS SECTION IS NOT ELIGIBLE FOR SUSPENSION OR COMMUTATION OF SENTENCE OR RELEASE ON ANY BASIS UNTIL THE SENTENCE IMPOSED IS SERVED.
D. IN ADDITION TO ANY OTHER PENALTY PRESCRIBED BY LAW, THE COURT SHALL ORDER THE PERSON TO PAY JAIL COSTS AND AN ADDITIONAL ASSESSMENT IN THE FOLLOWING AMOUNTS:
1. AT LEAST FIVE HUNDRED DOLLARS FOR A FIRST VIOLATION.
2. TWICE THE AMOUNT SPECIFIED IN PARAGRAPH 1 OF THIS SUBSECTION IF THE PERSON WAS PREVIOUSLY SUBJECT TO AN ASSESSMENT PURSUANT TO THIS SUBSECTION.

That’s right, unlike a citizen, an illegal does not get equal protection under the law (yeah, yeah, big constitutional problem here that those pesky liberals are gonna go and bring up) plus (and remember, this is someone not allowed to make any money) they shall be ordered to pay jail costs plus $500, unless the ICE has previously let them go in which case it is an additional $1000. And if it is second offense or subsequent offense of being in Arizona, it becomes a class 4 felony, punishable by 3 years in prison and a fine of up to $150,000 (no, that’s not a typo), plus jail costs, plus the $1000.

And remember, 3 years means 3 years. No suspended time, no good time, nothing that a citizen can expect. And let’s be honest. This will be at the cost to the Arizona taxpayer (even in a Joe Arpaio tent city with rancid bologna sandwiches and that constant 115F sunshine), because you can demand all those fines and costs but if someone not only doesn’t have the money but is also forbidden to earn the money, there’s not going to be any money.

Don’t forget that HB2008 and SB1070 are specifically designed to catch parents of children with legal or illegal status. Some one’s gonna have to take care of them. To change the lyrics of the traditional song just a bit, “Motherless children have hard time when their mother is Arizona prison for three years.”

I’ve only touched on a tiny bit of SB1070. There’s plenty more. Given my inability to shut up about this (despite the being explicitly asked to do so in one instance), I will probably go and dredge it up. If we just want people to obey the law, it can’t hurt to examine it closely, can it?

Illegal Means Illegal – What Could Be More Simple?

I was leaving a comment on a Facebook thread about illegal immigrants, responding to someone who said,  “I think the problem is when the word “illegal” comes into play. Imagine making a law to punish law breakers, hmmmm…” I thought to myself, it’s really as simple as that. Okay, there are a few minor hitches, but surely nothing we can’t handle.

If you look at it that way, the Arizona law doesn’t go far enough. After all, if someone committed a robbery we wouldn’t just arrest them and punish them because they got stopped for doing something else, would we? So if someone has broken the law by entering the country illegally, what are we waiting for? I have heard it over and over from my fellow conservatives:  they have broken the law and entered illegally, so let’s just round them up and send them back to where they came from.

Many of them have large families of children who are US citizens, so we’ll need to deport these US citizens to countries of which they are not citizens – wait, that’s where the word “illegal” comes into play, as you can’t just go deporting natural born citizens.  Okay, Plan B:  take all the children into the care of the State to feed, cloth and house them until they are 18. Yes, that would be the only legal option. I’m sure they’ll grow up to be fine law-abiding, emotionally stable, productive adults having had their parents forceably removed from them to another country and permanently separated.

But the upside is that we will need so many state-run orphages, which will provide jobs. We’ll need those jobs because the hundreds of thousand of illegals won’t be spending any money on food, clothing or shelter, so there’s gonna be some job losses. Of course state-run orphages will have to be paid for out of tax dollars, but it’s worth paying a lot more in taxes to create this social care monolith because we won’t have all those law-breaking immigrants.

What’s more, we’ll be punishing all those businesses that stay afloat employing illegal immigrants. Law breakers are law breakers. They will be paying at least the federal minimum wage and if they can’t afford to let the government rather than the market mandate wages, they go under. And if they need the kind of work that citizens won’t do, regardless of how hard up those citizens are, they go under. I think fruit is overrated anyway, and besides, we can always import it. With all those taxpaying businesses folding, we’ll have to pay even more to make up the difference, but it will be worth it not to have all those law-breaking immigrants!

What’s more, someone is housng all those illegals and their citizen children. Some of it’s not the best of housing, but it is better to have it all boarded up than have illegals living there. With the hundreds of thousands of illegals we have, that’s a lot of buildings abandoned. But looking at it positively, most families with illegal immigrants tend to live around other immigrant families. Most of the houses and aparments will be concentrated in certain areas of towns and cities. It will be easy to drive around those boarded up areas and ignore them. Areas with lots of abandoned buildings tend to attract crime and fire. Ths will mean more jobs for police and firefighters. That’s more public sector jobs costing more tax dollars, but once again it will be worth it not to have all those law-breaking immigrants.

Yes, enforcing that unmoveable conservative principle of “illegal means illegal” will lead to the break up of thousands of families, a massive increase in social services, massive expansion of the public sector, and tax increases. Anyone opposed to that is just a liberal. The law is the law.

Yes, when you think it about in straight-forward terms like punishing law breakers, the answers are all so simple.

Why Arizona is Wrong

I know that most of my friends, enemies, and passing readers will disagree with me. When the Arizona legislature passed a law allowing the stopping and questioning of anyone suspected of being an illegal alien and made it criminal trespass for an illegal alien to be present on any public or private land in Arizona (thus helping to facilitate their detention and deportation due to the commission of a crime), they did the wrong thing. For once (and probably only once) I agree with President Obama and a lot of Democrats. I don’t necessarily have the same reasons for supporting the same policy, because I think the Arizona law is in violation of Biblical principles and the economic free-market principles that made America great.

The Arizona law does reflect the views of the majority of Americans. Sad, but true. In fact, it reflects the view of the majority of Americans for most of the 20th century as well as this first decade of the 21st. It reflects attitudes of isolationism (not so bad) and protectionism (a bit more bad). This idea of coming to America and shutting the door behind us first reached fever pitch in 1882, with the Chinese Exclusion Act, which was made to look a bit more like the current Arizona legislation by the Geary Act in 1892. Almost all Asians were barred from entry in the Immigration Act of 1917.

The Emergentcy Quota Act of 1921 limited the number of immigrants to 3% of the number of persons living in the US at the 1910 census who had been born in that country.  The purpose of this was to keep out eastern and southern Europeans and allow in more northern and western Europeans. The Immigration Act of 1924 reduced this to 2%. Interestingly, it did not restrict immigration from Latin America. No one was worried about Mexicans then. Rather it was an effort to keep out all those Italians.

Then along came the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This allowed for anyone in the country illegally, even with an expired visa, or guilty of the tiniest crminal offense, to be detained for deportation. It was only because the Supreme Court intervened in Zadvydas v. Davis that the detention cannot be indefinite, though the Court held that “Despite the constitutional problem here, if this Court were to find a clear congressional intent to grant the Attorney General the power to indefinitely detain an alien ordered removed, the Court would be required to give it effect.” So Congress can decide that without any criminal proceedings, those with expired visas can be given an effective life sentence. In addition,  IIRIRA imposes draconian sanctions on re-entry to the US after overstaying a visa.

There’s the review of US immigration law. Now how does it hold up to Biblical principles? Throughout the Old Testament, especially in the Torah and in the Prophets, it is very clear how the Israelites were to treat strangers and aliens who settled among them. For the sake of space, and because it succinctly summarises the teaching of Holy Scripture, I will just refer to Leviticus 19:34 – The stranger who dwells among you shall be to you as one born among you, and you shall love him as yourself; for you were strangers in the land of Egypt: I am the LORD your God.

The first part is obvious. You should treat aliens (which is what the term stranger means) as someone native to your country. How you treat him is indicative of whether you are following the second great commandment given by Jesus, to love your neighbor as yourself. However, that last bit of the verse is very instructive, especially for Americans. It applies to us because it reveals the reason we should be generous with immigration.

“…because you were strangers in the land of Egypt” is a powerful statement. It is so hypocritical for the children of immigrants to deny immigration to others. Unless you are entirely of Amerindian descent, then at some time since 1607, your  ancestors washed up on these shores, probably without a visa, and made a life for themselves. The law of Moses was not given just to the first generation of settlers in the Promised Land. In fact almost all of those to whom it was originally given died before getting there. It wasn’t the readers and hearers of Leviticus personally who had been strangers in the land of Egypt, but rather their ancestors. Because their ancestors had been immigrants in Egypt, they were to treat their own immigrant peoples as they would want to be treated. They were to love their immigrant neighbors as themselves. Now you can argue against the applicability of the Law of Moses to civil law, but in this case you argue against the teaching of Jesus, Who said this same thing.

IIRIRA and the INA, just like the Immigration Act of 1917, the Emergency Quota Act of 1921, and the Immigration Act of 1924, fly in the face not just of the Mosaic Law, but of the teaching of Jesus.

But let’s de-spiritualise it for a moment and just look at our nation’s history. Hardly was the bronze plaque fixed to the Statue of Liberty before the words of Emma Lazarus’ sonnet were eroded – worn down now to the point of of being meaningless. We all know them:

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!”

Just like in 1917 and 1924, the US employs quotas. We still only want people from certain countries (if you are from the UK, for example, you can’t even enter the green card lottery). Most of the quota allotments are reserved for PhDs, professional athletes, researchers who are recognized internationally, business executives, and investors. We also let in a few Filipino nurses. The others don’t fit our protectionist, anti-capitalist, anti-free market model.

But for me the standard by which immigration policy and law must be judged: you shall love him as yourself. Does the new Arizona law meet that standard? I don’t think so.

It’s Not All Bad News

Does any know what happens to the legality of the 18,000 gay “marriages” in California now that the people have overturned the state Supreme Court? Will they all have to move to Taxachusetts or the People’s Republic of Vermont?

I’m guessing they won’t want to move to Arizona,  Florida or Arkansas. The first two have banned gay marriage and the last has banned adoption by gay couples.

I have to say that I thought the Left Coast would go whole hog for this, but perhaps where sin abounds. . .

And by the slimmest of margins, Norm Coleman appears to have held on to his Senate seat against the challenge of Al Franken. The current margin is 462 votes and an automatic recount will be initiated by Minnesota law.

It’s not all good news.  While Californians don’t want gays to marry, they also don’t want an adult to be notified if a minor gets an abortion. And speaking of death, Washingtonians have voted to all doctor-assisten suicide.