Adventurers Benefit From Government Slowdown

In the category of "What are they thinking?" the latest addition to my blogroll has some thoughts on the government shutdown slowdown.

When I saw this sign [regarding paying to hike the Red Rock trail] it started to dampen my mood.  I understand that the fees go to maintain the trails but I have always resented paying to experience nature.  My thoughts are, “really? I have to pay $5 to hike up the side of a mountain that will take me 20 minutes”.  The whole paying to be in nature just really gets under my skin, it seems wrong to me.  So decide to pay like the upstanding citizen I am (hehehe), when I notice this:

Thank you Government shutdown, you have officially saved me $5.  So it’s not all bad right? 

Why is the Department of Agriculture operating the toll for Red Rock trails?  Who can know the ways of the Fed?

Our adventurer is clearly having a good time.

Read the whole blog of a San Diego lad adventuring in Arizona.  He also reports that open carry is fairly common in his neck of the woods.

Presidential Petulance

Obama's response to the Supreme Court ruling on SB 1070 strikes me as nothing short of petulant. The law's provision that was upheld (8-0 by the way) merely directs the manner in which Arizona law enforcement will cooperate with federal authorities in the manner already directed by federal law! Obama's response, to suspend agreements between AZ law enforcement and the DHS and to set up hot lines so that citizens with a grudge against law enforcement have a forum. Really? That's some real leadership during tough times. When the going gets tough, the President skirts the law.

Supreme Court AZ Ruling Explained

Fellow blogger and frequent commenter drozz, has a great post today giving a full airing to the issues that the Supreme Court ruled on in Arizona v United States. I liked his notes as well, although I will not fully quote them, check out his blog yourself:

• Three of four sections struck down. All four ruled upon the same way in the majority opinion.
• Justice Sotomayer concurred to uphold section 2(b) (as did the other 7; Kagan recused). Guess she's now a wise white person, because that was the most racist-y racist law to every racist a racism. Or something.
• Justice Kennedy relied heavily on past precedent to draw a clear line in state vs. federal powers. His logic was clear and sound in this opinion.

The Long Awaited Arizona Lawsuit

Some key quotes from the request for preliminary injunction filed by that miserable hack against the State of Arizona's enforcement of SB1070 (H/T Legal Insurrection):

[Arizona]...may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration law. As such, Arizona’s immigration policy does not simply provide legitimate assistance to the federal government but instead exceeds a state’s role with respect to aliens, interferes with the federal government’s balanced administration of the immigration laws, and critically undermines U.S. foreign policy objectives. S.B. 1070 therefore exceeds constitutional boundaries.

S.B. 1070 will also impede the federal government’s ability to provide measured enforcement of criminal sanctions so as to accommodate the many other objectives that Congress enacted into the immigration laws. As a matter of law and in the public interest, this Court should enter a preliminary injunction to prevent S.B. 1070 from going into effect.

I admit I am not a lawyer, but I don't find these arguments persuasive on their face. In what way has the state of Arizona done anything that is inconsistent with federal law? The states have already been brought into immigration enforcement, so that particular horse has already left the barn. To now assert that the states can not pass enabling statutes that support the same federal laws seems like a losing argument. From a 2006 report Congressional Research Service of the Library of Congress:

Congress, through various amendments to the INA, has gradually broadened the authority for state and local law enforcement officials to enforce immigration law, and some recent statutes have begun to carve out possible state roles in the enforcement of civil matters. Indeed, several jurisdictions have signed agreements (INA §287(g)) with the federal government to allow their respective state and local law enforcement agencies to perform new, limited duties relating to immigration law enforcement.

Here is my concern, the conservative justices on the supreme court typically take a dim view of state usurpation of federal power. Whereas, the leftists on the court are known to use any logic to support their political view point, see the dissent in McDonald vs Chicago:

In his dissent in McDonald, signed by three liberal justices, Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk:

Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk.... And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation.

This argument ignores social science evidence suggesting that extreme gun bans like those of DC and Chicago cost at least as many innocent lives than they save. Still, gun rights probably do cause at least some deaths that might otherwise have been prevented.

Given this make up of the court, there is a chance that the Supremes may find a federal supremacy argument sufficient to carry the day. However, I think the federal government's own precedents of enrolling the states in the enforcement will be more important. Hopefully, the Court will look at the fact that Congress passed the laws that gave the states the limited authority to cooperate with federal immigration officials by turning over illegals. They should then say to the Justice Department, too bad, you don't like this, get Congress to repeal the laws that require cooperation of state law enforcement.

P.S. Dean makes some of the same arguments here. KT points out the absurdity of suing Arizona while effectively declaring portions of national parks off limits because they have been ceded to illegals. Temple of Mut provided the graphic for this article and a little link love.

Desert Discomfort

I have been a bit quiet on the Arizona law regarding illegal aliens (SB1070) for a number of reasons. First, I am sympathetic to a state that has been over run by crime exported from Mexico across a border that the federal government of both administrations has refused to patrol. The legal definition of national sovereignty is:

The supreme, absolute, and uncontrollable power by which an independent state is governed and from which all specific political powers are derived; the intentional independence of a state, combined with the right and power of regulating its internal affairs without foreign interference.

Note the last line, regulating its internal affairs without foreign interference. This implies a control of its own borders, because if its borders are not under control, then logically, the state (in this case the United States) have left them open to foreign interference.

Next, the wikipedia definition of a failed state includes this bullet:

• Loss of physical control of its territory, or of the monopoly on the legitimate use of physical force therein,

Note the emphasis of physical control of its own territory. This isn't some right wing definition either, it was proposed by noted lefty Noam Chomsky. Both the U.S. Constitution and customary law puts the onus for enforcement of the border on the federal government. Further, its failure to enforce its borders calls into question the sovereignty of the of the federal government.

However, this is part of my trouble with the law. It is manifestly not the proper province of local government to enforce the border. Now technically, AZ is not really performing border enforcement, merely requiring that police check the legal residency status of persons stopped for other reasons by law enforcement. However, the federal law governing illegal aliens do not make it a criminal offense, only a civil issue, which penalty is deportation. The Arizona law:

Requires a reasonable attempt to be made to determine the immigration status of a person during any legitimate contact made by an official or agency of the state or a county, city, town or political subdivision (political subdivision) if reasonable suspicion exists that the person is an alien who is unlawfully present in the U.S.

I think this goes slightly too far, I would prefer that the immigration status only be checked if the suspected illegal is in a custodial situation. Checking on background for all contact seems onerous and interfering with officer's daily routines and opens the potential for abuse. In general, I am not in favor of increased police powers, I believe they have enough at their disposal.

But is this the greatest injustice in the land? No. Does it send a message that the federal government is failing in its responsibilities? You betcha. I just think that the law could have been trimmed a little to achieve those ends. Further, if it was written as I proposed, I guarantee it would survive every court challenge and that the federal government would lose in court if they failed to receive illegals brought to them by the state. So I don't support the Arizona law wholeheartedly, but also I oppose the opposition to the law, because it is being opposed for the wrong reasons, namely as a wedge issue to introduce open borders. I favor vastly increased legal immigration, but not open borders, for reasons previously cited.

A second and less commented upon part of the law requires:

...E-Verify, which allows employers to electronically confirm the employment eligibility of all newly hired employees. LAWA requires all Arizona employers to use E-Verify to verify the employment eligibility of new hires. Proof of verifying the employment authorization of an employee through E-Verify creates a rebuttable presumption that an employer did not intentionally or knowingly employ an unauthorized alien.

[LAWA is the Legal Arizona Workers Act, a 2007 law.] The Obama administration is attempting to block this provision in court. This puts them in the interesting position of arguing that e-verify is essentially voluntary, and therefore worthless as an enforcement tool, despite previous Congressional efforts to make it mandatory. Interestingly, this law has survived every constitutional challenge. [See Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d856 (9th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3065 (U.S. July 24, 2009) (No. 09-115).] That reference offered without editorial comment. Key issue in the administration's legal challenge, Congress re-authorized the bill in 2009 after Arizona passed its own law. We can assume that the Congress was aware of the AZ law, but re-authorized e-verify anyway, meaning that the Congress intended to allow states to make it mandatory. Lengthy analysis at The Volokh Conspiracy.

I look forward to seeing the administration smacked down by the Courts.