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Disturbing: The Ninth Circuit Arizona Immigration Law Decision

The concurring opinion — which quoted Humpty Dumpty — would disturb even Lewis Carroll.

by
Dan Miller

Bio

April 16, 2011 - 12:00 am

Much has already been written about the April 11 decision of a three-judge panel of the 9th Circuit Court of Appeals affirming Judge Susan Bolton’s decision denying a preliminary injunction and holding the Arizona immigration statutes unconstitutional on the ground of federal preemption. As noted here, Judge Bea wrote a well-deserved acerbic concurring, but in reality dissenting, opinion. He quoted Lewis Carroll’s word master Humpty Dumpty and compared the court majority to him:

The majority has apparently mastered its Lewis Carroll:
“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t –
till I tell you. I meant ‘there’s a nice knock-down argument for you!’”
“But ‘glory’ doesn’t mean ‘a nice knockdown argument,’ ” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful
tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Judge Bea pointed out the majority’s strained interpretation of legislative intent which attributed to the Congress the intent of those later charged with enforcing federal immigration laws as though the Congress had, through some previously undiscovered capacity for prescience, divined and approved the subsequent interpretations of the enforcers. Judge Bea quite correctly observed:

It is Congress’s intent we must value and apply, not the intent of the Executive Department, the Department of Justice, or the United States Immigration and Customs Enforcement. Moreover, it is the enforcement of immigration laws that this case is about, not whether a state can decree who can come into the country, what an alien may do while here, or how long an alien can stay in this country. (emphasis in original)

Judge Bea provides a thoughtful analysis of congressional intent, as revealed by the actual wording of the federal immigration laws; the majority opinion does not. As to the allegedly tremendous burden the Arizona statutes would place upon federal immigration authorities, Judge Bea observed:

The majority also finds that state officers reporting illegal aliens to federal officers, Arizona would interfere with ICE’s [U.S. Immigration and Customs Enforcement] “priorities and strategies.” Maj. Op. at 4824. It is only by speaking in such important-sounding abstractions — “priorities and strategies” — that such an argument can be made palatable to the unquestioning. How can simply informing federal authorities of the presence of an illegal alien, which represents the full extent of Section 2(B)’s limited scope of state-federal interaction, possibly interfere with federal priorities and strategies — unless such priorities and strategies are to avoid learning of the presence of illegal aliens? What would we say to a fire station which told its community not to report fires because such information would interfere with the fire station’s “priorities and strategies” for detecting and extinguishing fires?

The majority’s arguments regarding how any of the state officers’ actions spelled out in Section 2(B) could interfere with federal immigration enforcement is consistent with only one premise: the complaining federal authorities do not want to enforce the immigration laws regarding the presence of illegal aliens, and do not want any help from the state of Arizona that would pressure federal officers to have to enforce those immigration laws. With respect, regardless what may be the intent of the Executive, I cannot accept this premise as accurately expressing the intent of Congress. (emphasis in original)

All of this is interesting and useful. However, the perhaps most important jewel in his opinion resonates with substantial force in this globalist world where all nations (perhaps all but the United States) must have a say in the domestic activities of all others. As Judge Bea noted at some length, the majority relied heavily on foreign unhappiness with the Arizona laws. It is hardly surprising that there has been foreign unhappiness, much of it stimulated by the early statements of President Obama and his attorney general — even before General Holder had read the statute. President Obama commented in late April of last year:

You can try to make it really tough on people who look like they, quote, unquote look like illegal immigrants. One of the things that the law says is that local officials are allow[ed] to ask somebody who they have a suspicion might be an illegal immigrant for their papers, but you can imagine if you are a Hispanic American in Arizona, your great, great grandparents may have been there before Arizona was even a state. But now suddenly if you don’t have your papers and you took your kid out to get ice cream, you’re going to be harassed, that’s something that could potentially happen.

These comments were, of course, “poorly conceived,” as a reading of the statutes as amended on April 30, 2010, should reveal. The April 30 changes were intended to and should have diminished President Obama’s stated concerns; of course they did not:

For any lawful contact stop, detention or arrest made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien who and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.  Any person who is arrested shall have the person’s immigration status determined before the person is released.  The person’s immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c). A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.

Even before General Holder had got around to reading the statutes, but after he and President Obama had commented on them, there were protests throughout Latin America:

South American presidents issued a declaration condemning it during a 12-nation summit in Argentina, the first week in May, as part of the Union of South American Nations.

The South American presidents that signed the declaration included Brazil’s Luiz Inacio “Lula” Da Silva; Uruguay’s Jose Mujica; Ecuador’s Rafael Correa; Paraguay’s Fernando Lugo; Chile’s Sebastian Pinera; Bolivia’s Evo Morales; Venezuela’s Hugo Chavez; and Argentina’s Cristina Fernandez. Foreign ministers represented by Peru, Colombia, Surinam and Guyana also co-signed the declaration.

None of those countries, of course, behave as rashly and without regard to human rights as the Arizona statute would permit it to do; of course not. On August 20, 2010, the Arizona immigration statutes were submitted in a report to the United Nations Human Rights Council which many nations enter but few leave (rather like a Roach Motel) to which Arizona Governor Brewer objected, calling the report’s reference to the law:

… “downright offensive” and demanding that it be removed from the report.

The idea of our own American government submitting the duly enacted laws of a state of the United States to “review” by the United Nations is internationalism run amok and unconstitutional.

The State Department even raised the Arizona immigration laws with that bastion of freedom, human rights, and democracy, Red China. At a press conference, Assistant Secretary Posner was asked whether the new Arizona law had been discussed with China. He responded:

We brought it up early and often. It was mentioned in the first session, and as a troubling trend in our society and an indication that we have to deal with the issues of discrimination or potential discrimination, and that these issues are very much being debated in our own society.

With only modest exaggeration, Judge Bea states that the majority opinion allows “any complaining foreign country to preempt a state law.” He stated:

The majority fails to identify a federal foreign relation policy which establishes the United States must avoid “spillover effects,” if that term is meant to describe displeasure by foreign countries with the United States’ immigration policies. The majority would have us believe that Congress has provided the Executive with the power to veto any state law which happens to have some effect on foreign relations, as if Congress had not weighed that possible effect in enacting laws permitting state intervention in the immigration field. To the contrary, here Congress has established — through its enactment of statutes such as 8 U.S.C. §§ 1357(g)(10), 1373(c), and 1644 — a policy which encourages the free flow of immigration status information between federal and local governments. Arizona’s law embraces and furthers this federal policy; any negative effect on foreign relations caused by the free flow of immigration status information between Arizona and federal officials is due not to Arizona’s law, but to the laws of Congress. Second, the Executive’s desire to appease foreign governments’ complaints cannot override Congressionally mandated provisions — as to the free flow of immigration status information between states and federal authorities — on grounds of a claimed effect on foreign relations any more than could such a foreign relations claim override Congressional statues for (1) who qualifies to acquire residency in the United States, 8 U.S.C. § 1154, or (2) who qualifies to become a United States citizen, 8 U.S.C. § 1421 et seq.

Finally, the majority errs in finding that the threat of all 50 states layering their own immigration rules on top of federal law weighs in favor of preemption. In Buckman, the Supreme Court stated: “As a practical matter, complying with the FDA’s detailed regulatory regime in the shadow of 50 States’ tort regimes will dramatically increase the burdens facing potential applicants burdens not contemplated by Congress in enacting the FDCA and the MDA.” 531 U.S. at 350 (emphasis added). I fail to see how Congress could have failed to contemplate that states would make use of the very statutory framework that Congress itself enacted. Congress created the Law Enforcement Support Center “to provide alien status determination support to federal, state, and local law enforcement on a 24-hours-a-day, seven-days-a-week basis.” Congress also obligated ICE to respond to all immigration status inquiries from state and local authorities. 8 U.S.C. § 1373(c). In light of this, all 50 states enacting laws for inquiring into the immigration status of suspected illegal aliens is desired by Congress, and weighs against preemption. (emphasis in original)

It is possible that decisions of the 9th Circuit are the most frequently overturned by the Supreme Court simply because the 9th Circuit is the biggest in the country. However, in light of many of the decisions coming from that esteemed circuit, it is quite likely that there is another and more reasonable interpretation: the 9th Circuit chooses to sacrifice judicial integrity on the altar of political correctness and global multiculturalism transcending the basic notions on which the nation was based and which continue to have substantial importance to most.

The 9th Circuit decision will certainly be appealed to the Supreme Court, and the sooner it hears the appeal the better.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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