Disturbing: The Ninth Circuit Arizona Immigration Law Decision

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.