Sooners Scared of Sharia

It’s just about the most ridiculous thing I’ve seen. Oklahoma voters overwhelmingly approved a measure to ban courts in the state from considering Islamic sharia law when considering cases. It also forbids courts to look to the legal precepts of other nations or consider international law when deciding cases.  Each of these provisions is so idiotic that I don’t even know where to start.

State Question 755 (ominously called the Save Our State Amendment) added this to the Oklahoma Constitution (italics mine):

The Courts…when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

This whole thing started because an Oklahoma state representative heard about a case in New Jersey where a trial judge ruled against a woman seeking a restraining order because her husband was acting on his religious beliefs. The trial judge was promptly reversed by an appellate court, but the matter did not even involved sharia. In the New Jersey case, the trial judge did not say that since sharia allows the husband to force himself on his wife, he is entitled to do so. The trial judge said that the man’s sincere religious belief prevented him from forming the necessary mens rea to constitute marital rape. The judge was wrong and justice prevailed.

Another sponsor of the measure fretted because England has embraced 85 sharia courts, “while Oklahoma is still able to defend itself against this sort of hideous invasion, we should do so.” The only problem is that England has not embraced 85 sharia courts. England has 85 sharia courts (or at least the Daily Mail tells us so), but that’s like saying Oklahoma has 111 Rotary Clubs. Has Oklahoma embraced the Rotary Clubs?  Are Oklahoma courts bound to consider the decisions of Rotary Clubs which have hideously invaded the state, unless a constitutional amendment is passed?

People can voluntarily be a part of any organization. The only thing the sharia courts offer that is different is a forum for alternative dispute resolution. ADR is an increasingly popular thing. The idea is that litigants can chose a mediator or arbitrator to help them settle their differences. This saves the courts time and the parties money. Often lots of money. If both of the litigants are Muslims, there is no reason they cannot choose to have a dispute abitrated by other Muslims. If it is a matter which requires court approval, they can then enter a consent order with the court. As long as the agreement between the parties is consistent with the law, the court will usually approve the order. That is what some courts in England have done with sharia court decisions.

But this is nothing new. Courts in both England and the United States have often approved consent orders that are the results of beth din rulings. A beth din is the equivalent of a sharia court for Orthodox Jews. If both parties are Orthodox Jews and want to have their dispute settled in accordance with Jewish law, they come before the beth din judges following accepted rules of legal procedure and the judges decide the case, which is then submitted to the state court, particularly in family law cases. Perhaps someone needs to amend the Oklahoma amendment to forbid the consideration of Jewish law, in case there is an invasion of Orthodox Jews into the Sooner State.

But here’s the kicker. Muslims who submit their disputes to a sharia court and Jews who submit their disputes to a beth din are only doing what Christians should have been doing. Most Christians ignore the first half of I Corinthians chapter 6. I’ll just quote the first verse to refresh your memory and you can go read the rest: “Dare any of you, having a matter against another, go to law before the unrighteous, and not before the saints?”

But what about this “The courts shall not look to the legal precepts of other nations or cultures” bit? This is very interesting. Let’s look at it in reverse order. What is another culture? Clearly for the authors of the proposal, it is any culture where Islam is the dominant religion. But that’s not what the amendment says. And what constitutes a “legal precept” of that culture?

But it’s that “other nations” bit that will cause an interesting problem. The whole idea of the common law and the rules by which it operates did not originate in the United States. They come from England, which is, according to my red passport, another nation. Having lived within it for over a decade, I can assure you that it is another culture as well. It is fortunate that Oklahoma, unlike its neighbors Texas and New Mexico, is not a community property state, because it would then be looking to the legal precepts of Spanish law as well. Nonetheless, it appears that the authors (and is must be said, 70% of Oklahoma voters) imagine that American law just sprang up sua sponte.

And finally there is that bit about international law. This is bizarre because regardless of the amendment, Oklahoma courts will have to consider international law. Treaties to which the United States is a party are the supreme law of the land. So says Article VI Section 1 of the US Constitution. Treaties to which the United States is not a party are irrelevant and would never be considered by a court in Oklahoma. The relevance of international law is a federal matter, because only the federal government has any legal interaction with other countries.

State Question 755 was written by ignorant people to be voted upon by ignorant people.  Somehow a lot of people see the words “Islam” or  “Muslim” and their brain function just shuts off. Muslims are bad, so if something is against Muslims it must be good. It doesn’t have to be good law or even make logical sense. It will probably do something to help stop the great Muslims invasion (they must be massed at Fort Smith and Siloam Springs just waiting to pour over the border) and that’s all that matters.

Lord, save us from ourselves.

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.

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.

The Power of Unforgiveness

It is the story that just won’t go away. Jon Venables, one of the killers of Jamie Bulger, was returned to prison for violating the terms of his license. Venables was 10 years old 17 years ago when he committed this crime. He was allowed out of prison after eight years, after appealing to the European Court of Human Rights, which said you can’t lock up 10 year olds forever.

Other than the media, the person who comes out looking the the worst in all of this is Denise Fergus, the mother of Jamie Bulger. She is constantly demanding that she has a right to know the details of what Jon Venables has done to get his parole revoked. Now she has demanded that Maggie Atkinson, the Children’s Commissioner for England be sacked. Fergus didn’t like the way Atkinson referred to Jamie’s murder, and worst of all Atkinson opined that the age of criminal responsibility be raised from 10 to at least 12 and that Jamie’s killers should not have been tried in adult court.

I don’t make it a habit of agreeing with the Government or their appointees. There are arguments to be made for and against Atkinson’s views. But who is Denise Fergus to demand that someone agree with her or be sacked? She honestly seems to believe that she should hold the fate of her sons killers in her own hands and that she should decide the fate of anyone who dares disagree with her.

She has demanded that the Justice Secretary reveal why Venables has been recalled to prison. Under unrelenting pressure from the media, Jack Straw agreed to meet with her, but wouldn’t tell her why Venables was back in prison. First of all, it is none of her business, and second, once he were to tell her, she would tell the world and jeopardise the course of justice.

Fergus will want to make a statement to the parole board when Venables is referred to them. What’s the point? Whatever Venables has done to have his parole revoked is entirely unrelated to the murder of Jamie Bulger 17 years ago. It is as if she believes she can reduce her pain by puting a little more of it onto Venables. Sadly for her, it just doesn’t work that way.

Denise Fergus is an example of the power of unforgiveness. She is the one who has been eaten alive by it all these years. Her knowledge of what Jon Venables may have done recently will not bring Jamie back. Her opinion regarding any new offence he may have committed will not bring Jamie back. Her participation in the process will not protect anyone in the future.

The same is true of the British media and the public. Just leave it all alone. It was sad. It was tragic. It was 17  years ago. Move along, people. There’s nothing to see here.

Show Trial for a Scapegoat

The kangaroo court in Munich is now in session. John Demjanjuk, 89, in a wheelchair, half-conscious, and with no eye-witnesses testifying against him, is on trial in Germany for crimes alleged to have happened in Poland 66 years ago.

The chief question is whether the German state, in an illegal invasion of Poland, captured Demjanjuk and forced him to become a guard at Sobibor concentration camp. It is not the German state that is on trial, or even any Germans. It is not even alleged that Demjanjuk killed anyone. All of the 27,900 counts against him are for accessory to murder. By being a guard at the camp, he kept people from escaping so that Germans could kill them – in Poland, of which he is neither a citizen nor has he ever lived other than under the control of the German army.

The German are really grasping at straws to find non-Germans to prosecute in Germany for crimes perpetrated by a German government.

I made further observations back in April during the extradition proceedings.

When Good News is Bad News

The good news: David Souter is leaving the SCOTUS. The bad news: Barack Obama is choosing his replacement. The worse news: he has a rubber stamp Senate to confirm her. I’m predicting the same as everyone else. He will choose an woman from an ethnic minority. Or as even liberal Time magazine says, “White men need not apply.”

I don’t care whether care whether the new justice is a man or a woman. I don’t care what their ethnic background is. What I do care about is the box-ticking exercise of thinking this is important. On one level care about the affirmative action approach to filling one of the nine most important judicial seats in the land. That is a very poor crtieria.

But the much more important thing it that it reflects a much more troubling aspect of Obama’s judicial philosophy.  “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.” This sounds so wonderful and heartwarming.

We need someone who will bend and change the law to make people happy. We need unelected judges to override elected legislators in making law. We need to change the meaning of the Constitution because we feel sorry for people.  If we get a cultural and gender cross-section on the Court, they can represent the people in choosing what the Constitution should become – more white men are more likely to tell us what it is.

If the law cannot be changed on a case-by-case basis, then we are stuck with equality under the law. That makes it much more difficult to favour minorities or special interest groups, especially ones we for whom we feel sorry because we don’t think they have been as materially prosperous. Enlightened justices needs to protect and promote behaviour that legislators, encumbered as they are by the will of the people, won’t endorse.

I want to say in closing that I don’t have anything against David Souter personally. I am very disappointed that he has shifted from the conservative to liberal side of the Court. That’s why I wish I could be glad to see him go. As an individual, he has always been an outstanding example of public service.