Tuesday, July 13, 2010

By The Time I Get To Arizona (The Remix)

In law school there's an annoying character known as "the gunner" who sits in the front of the class every day, constantly raising his or her hand because not only are they in love with the sound of their own voice, but they also feel that they have the correct answer to every question that the professor ever asks (even if the professor didn't ask a question).  Other than passing the bar and perhaps graduation, there is no greater feeling in the law school universe than when the forces that be provide you with the perfect opportunity to catch a "gunner" slipping on their argument by revealing that the 15-minute diatribe that they just presented to the entire class as the greatest legal argument of all time has one huge glaring logical flaw that unravels everything that they just said, thereby destroying their credibility for all the world to see and forever revoking their public speaking rights for the remainder of their time in law school.  In light of the United States Justice Department's lawsuit against the State of Arizona with respect to its recent immigration law (read it HERE), it would appear that such an opportunity has presented itself once again.  Ladies and Gentlemen, I present to you exhibits A, B and C: Fox News, Arizona Governor Jan Brewer, and the architect of Arizona's immigration law, Kris Kobach.

EXHIBIT A:  A Fox News "legal analyst" Lis Wiehl had this to say about the DOJ's law suit against Arizona:

The federal government has just filed suit challenging the state of Arizona’s new anti-illegal immigration law. The basis? The Supremacy Clause, which says that federal law trumps state law.  But that argument should fail in a court of law because the Arizona law mimics the federal law. It basically gives the state a mechanism to enforce federal law, to turn over people police have a reasonable suspicion to believe may be illegal over to the feds. The Supremacy Clause only comes into play when a state law is “contrary” to a federal law or the Constitution.
The Supremacy Clause only comes into play when state law is contrary to federal law?  Are you kidding me here?  I don't know what's scarier about this, the fact that this flawed legal analysis is being presented to the public as credible news or the fact that Ms. Wiehl graduated from Harvard Law School.

As I've mentioned before in our previous Arizona post, as a general rule, state law is usually preempted from doing something that federal law does. Because of the Supremacy Clause, whenever the Federal government sets up shop in a particular field, depending on what that field is, State governments are usually "preempted" from trying to regulate the exact same field, even in cases where the State regulations would assist the aims and objectives of the Federal regulations. See Morales v. Trans World Airlines, 504 U.S. 374 (1992); see also City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973).  Money quote from Justice Antonin Scalia himself in Morales:
"The pre-emption provision . . . displace[s] all state laws that fall within its sphere, even including state laws that are consistent with [a federal law's] substantive requirements."
*Ahem*  I'm sorry, Fox News...you were saying something about an argument "failing in court?"

The Fox News analyst goes on to proclaim the following:

It is also being reported that the other ground for the legal challenge is racial profiling but the Arizona law specifically prohibits that. It states that the police officers must have a “legal” reason for stopping a person before questioning.
Being "reported" by whom?  Fox News?  Did you even read the DOJ's legal challenge? (I'll link it again in case you missed it)  As we can all clearly see, the complaint is 25 pages long and has 3 counts (1. Violation of Supremacy Clause; 2. Preemption under Federal Law; and 3. Violation of the Commerce Clause).  Nowhere in any of that does it mention racial profiling once!  This is just flat out factually incorrect.  In fact, the common criticism from the Left was that the complaint "failed to mention" racial profiling.

Lastly, before I move on, I just wanted to point out that the whole "legal reason" for stopping a person requirement of the law is complete nonsense.  If a cop stops you on the street to talk about the weather that is a quote-unquote "legal reason" for stopping you.  In other words, just about any reason you can think of is a quote-unquote "legal reason" for stopping somebody, whether they're doing anything illegal or not.

EXHIBIT B:  Arizona Governor Jan Brewer (R), earning her true "gunner's" badge, had this to say recently about illegal immigrants: 
"Well, we all know that the majority of the people that are coming to Arizona and trespassing are now becoming drug mules...They're coming across our borders in huge numbers. The drug cartels have taken control of the immigration...So they are criminals. They're breaking the law when they are trespassing and they're criminals when they pack the marijuana and the drugs on their backs...I believe today and in the circumstances that we are facing, that the majority of the illegal trespassers that are coming in the state of Arizona are under the direction and control of organized drug cartels, and they are bringing drugs in." 
In the immortal words of Senator Clay Davis:  "Sheeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeit."  The "majority" my ass!  If you all would kindly direct your attention to PolitiFact for a moment, we can all clearly see from the flat out "FALSE" rating here that "the majority" of what Gov. Brewer is saying is here bullshit.  As My Cousin Vinny would say "and now I'm done with this guy."


Kris Kobach, the person most responsible for the legal language used in crafting Arizona's new immigration law, recently wrote an article on NRO defending the law.  His first claim is that AZ's law expressly prohibits racial profiling in its text, therefore the law will not encourage racial profiling in practice.  This argument is tantamount to saying that there were weapons of mass destruction in Iraq BECAUSE somebody wrote it in the text of a report.  I'm sure the Oakland police officer's manual has text that expressly prohibits shooting unarmed people in the back at point blank range, but that didn't exactly stop it from happening to Oscar Grant now did it?  The fact of the matter is this: when you enact a law that requires cops to stop people that they suspect of being illegal immigrants, logic dictates that the law must, by necessity, encourage racial profiling in practice.

Kobach's next claim is that the law's provision requiring immigrants to carry their paperwork is legit because federal law already requires aliens to carry their papers.  First point - Kobach concedes that this law overlaps federal law (see preemption argument above).  Second point - Kobach fails to address the true concern here - which is that AZ's law is too broad because it will also require US citizens to carry paperwork as well or risk being mistakenly penalized for being an illegal immigrant.  (it doesn't get any more Un-American than that, folks)

Kobach goes on to make a number of claims that we have already addressed here, but the main crux of his argument is that the AZ law is constitutional because States have the right to enforce their own immigration law.  A Federal Court in California has already ruled on this issue, making it crystal clear that States can NOT enact their own immigration laws.   Furthermore, it is only a matter of time before the DOJ's law suit will soon make clear once and for all that AZ is no exception to this rule.

Arizona gunners, you may put your hands down now.
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