Obama’s incompetent assassins might have a tough time killing Arizona’s new immigration law without looking like totalitarian despots out to micro-manage every attempt at self-preservation by state governments, but despite how it might appear, the Democratic Party has no choice but to fight a futile battle if they want to remain in power.
A 2002 memo written by former Justice Department Office of Legal Counsel Lawyer Jay Bybee asserted that state police officers have the inherent power to arrest illegal aliens. This memo has never been rescinded and is still in effect today. This one memo could pose a serious problem to the current administration’s attempt to scuttle the Arizona law. Of course, the current administration has their own appointee serving as Legal Counsel in the Justice Department, so it is no beyond their ability to find fault with Bybee’s declaration and overturn it with or without significant legal justification. As far as they are concerned the simple fact that the memo was written during the Bush administration should be sufficient justification to eliminate it. However, that is not the only problem the current administration must overcome to destroy the Arizona law.
California, the biggest whiner about Arizona’s recent legislation has far harsher provisions in their state penal code than Arizona with respect to illegal aliens. California Penal Code Section 834b requires that any police officer suspecting that an individual may be in the United States illegally shall contact and fully cooperate with the United States Immigration and Naturalization Service to verify the individual’s immigration status. There is nothing in California’s version of the Arizona immigration law regarding reasonable suspicion, the prohibition of racial profiling, or any of the other safeguards built into the Arizona law. The California law was approved by the voters and is still in effect. Curiously enough, the California statute includes a provision expressly prohibiting any legislative, administrative, or other action by a city, county, or other legally authorized local governmental entity with jurisdictional boundaries, or by a law enforcement agency, to prevent or limit a California state law enforcement officer’s full and complete cooperation with federal immigration authorities. The California law not only requires law enforcement officers to check the immigration status of anyone they suspect may be in the country illegally, it also prohibits any city, county or police agency from interfering with that obligation. In simple terms, the state of California has a law prohibiting the establishment of sanctuary cities and the adoption of policies such as the LAPD’s Special Order 40 which prohibits police officers from asking individuals about their immigration status and/or cooperating with federal immigration authorities. If the state chose to enforce penal code section 834b, the population of the state of California would drop by around 8 million overnight, school overcrowding would disappear and teachers would be able to teach again, the California budget crisis would cease to exist, crime rates would plummet, gang membership would be cut by 75% in many cases, the overstuffed prisons would eventually regain a measure of effectiveness, and the state’s unemployment rate would return to a low single digit. As long as the state government remains securely under the heavy thumb of Democratic incumbents in gerrymandered voting districts largely comprised of sanctuary cities whose open arms welcome all illegal aliens and the support they give to their liberal protectors, there is little fear that 834b will be enforced. 834b is the axe held over the neck of California’s Hispanic population and it guarantees their continued support of the Democratic blackmailers who would rather see the state financially destitute and inundated by hordes of criminal invaders than risk losing their white knuckled grip on the reins of power. While California’s self serving liberal politicians may choose to ignore and violate their own state penal code, the law is still in effect and could be enthusiastically enforced if the Hispanic community failed to support the state’s Democratic power brokers. The Democratic Party’s support for immigration reform and amnesty for illegal aliens is not a position they have adopted as a result of their overflowing tendency towards compassion, it not a matter determined by moral debate about what is right and what is wrong, it is simply a clever maneuver by the party’s adept political strategists to gain support.
The hysterical reaction coming out of California with respect to Arizona’s new immigration enforcement law is not a demonstration of moral outrage by any means. The race baiting Democratic politicians of California are spinning the opportunity for their own political advantage, and the race baiting Democratic politicians in Washington D.C. know a good thing when they see it. Whether or not they can overturn the Arizona law is irrelevant; they could honestly care less about the issue, but the outlandish show of overblown emotional outrage and the continual deluge of rhetorical condemnation will be worth their time and effort either way if it motivates the Hispanic voters in sufficient numbers to overcome the groundswell of popular opinion that now threatens to dismember the Democrat’s control of all three branches of the American government.
The Immigration and Nationality Act passed in 1952 contained a provision to authorize federal officers and “all other officers” to enforce sections of the federal immigration laws. The inclusion of the words “all other officers” allowed state and local law enforcement officials to actively enforce federal immigration law within their jurisdictions. The authority of local police to enforce federal immigration law, as established under the provisions of the 1952 Immigration and Nationality Act was challenged when the local police of Peoria, Arizona took an aggressive stance towards immigration enforcement in their effort to reduce the high crime rate in several areas of the city. In the late 1970′s, after individuals were questioned about their immigration status by Peoria police officers responding to calls by citizens reporting criminal altercations, during the citation of traffic violators and as part of interviews conducted with suspects in felony investigations, the officers detained individuals suspected of immigration violations and called the federal immigration authorities to investigate further. During this period of time, an unknown number of American citizens of Mexican descent were also questioned about their immigration status. Subsequently, these citizens filed suit against the city of Peoria and its police department on the grounds that the cities involvement in immigration matters led to violations of their civil rights. The primary lawsuit against the city and the police department that was filed in 1978 was Gonzalez v. City of Peoria. After bumping around through the American legal system for five years, the Ninth Circuit Court of Appeals ruled in favor of the police officers and the City of Peoria. The decision of the Ninth Circuit Court of Appeals validated the immigration enforcement policies of the Peoria Police Department and determined that state and local police officers have the authority to enforce federal immigration law. For additional details on this decision the full citation has been included at the end of this posting.
The 1996 immigration control legislation that was passed by Congress further substantiated state and local law enforcement agencies ability to enforce federal immigration laws. The 1996 legislation sought to eliminate the potential for error by requiring local officers to undergo federal immigration law training, but that requirement is far from being a difficult obstacle to any state law enforcement agency. Furthermore, compliance with that simple requirement provides state and local cops as much leeway as federal immigration authorities’ exercise in the pursuit of their duties. The 1996 legislative modification of what was first established by the 1952 Immigration and Nationality Act is minimal and further serves to support the understanding that state and local law enforcement personnel can enforce federal immigration law as part of their routine duties, including full authorization to “detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S.;” furthermore, it specifically states that “reasonable suspicion” can be concluded from “evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens.”
The 1996 immigration control legislation passed by Congress contains nothing to mitigate or prohibit “racial profiling” such as the provisions in the Arizona law. And regardless of the shrill hysterical expressions of acrimonious outrage, state and local law enforcement personnel can legally enforce federal immigration laws in the same manner as federal immigration officers, up to and including the full authority to snatch up anything that looks even remotely like a Mexican, with or without reasonable cause, and shake them down for proof of citizenship which the suspect must produce to avoid detention and further investigation and possible deportation.
The laws enacted as a result of Arizona’s legislative act SB 1070 provide a model of compassion when compared to the federal government’s immigration provisions which afford federal immigration authorities with the authority to arrest and indefinitely detain individuals, who may or may not be illegal aliens, without the necessity of warrant, “just cause,” or “reasonable suspicion” Federal immigration law provides it’s enforcement officers with the ability to conduct warrantless searches of random individuals and contains extensive provisions allowing the seizure of any or all assets, including bank accounts, homes, vehicles, business establishments, merchandise and personal belongings of anyone suspected of violating U.S. immigration law. There is nothing in the ten pages of Arizona’s SB 1070 that can be even remotely construed as to allow for more draconian measures already codified into the U.S. Code by congressional legislation.
The U.S. Constitution, Article 1, § 8 spells out the specific duties of the United States Congress, and there is only one provision in this section of the U.S. Constitution in which the US Congress has exclusive power and that section has nothing to say about the enforcement of immigration laws. If the U.S. Congress claims the exclusive authority to establish and enforce every provision listed under Section 8 then the states would be prohibited from enforcing any laws related to the subjects mentioned in this section of the Constitution, and it is seriously doubtful that this is a road that anyone wants to take because the consequences would be wide, sweeping and entirely disastrous. Section 8 establishes the authority of congress to enforce the laws prohibiting counterfeit money and the argument that state law enforcement agencies do not have the authority to identify and detain illegal aliens because that is the exclusive jurisdiction of the U.S. Congress, can be logically extended to counterfeit currency. If the U.S. Congress has exclusive jurisdiction, following the same argument, the states can’t enforce federal laws against the manufacture and use of counterfeit money. Every taxpayer in the state of California could print their own currency and pay their taxes with it and the state wouldn’t have the authority to even state that the money was counterfeit because that ability would be restricted to federal authorities. While this may seem somewhat extreme, there is no more weight to the Section 8 provision regarding the naturalization of immigrants than there is to the enforcement of currency laws and counterfeiting. Ironically, Section 8 provides only that Congress establish a uniform Rule of Naturalization. Immigration enforcement and the establishment of immigration laws beyond the scope of Naturalization are not mentioned in Section 8. Furthermore, the congressional claim to have exclusive jurisdiction over the regulation of immigration is not stated in the U.S. Constitution, it is implied, and that implication is subject to debate, especially where the US Congress makes the claim that it has the exclusive power to regulate immigration to such a point that they can deny the individual states the ability to establish immigration enforcement measures similar in every respect to the measures enacted by the federal government. The federal proponent’s ability to deliver a credible argument is also hampered by the well substantiated fact that the U.S. Congress has failed abysmally to enforce the nation’s immigration laws, and as a direct result of their failure the citizens of the affected states have been burdened with the costs directly attributed to the federal government’s failure. Article 1, § 8 also obligates the United States Congress to protect the individual states against foreign invaders and provides them with the ability to call up the state militia to repel all invaders. All things considered, the states have been rather good natured about the government’s failure to protect them against being invaded by an estimated 20 to 40 million foreign invaders. It is actually fairly surprising that the states haven’t sued the U.S. Congress for their failure to fulfill the obligations of their office.
Regardless of the numerous obstacles to the Democrat’s desire to wage war over the Arizona law, it is a war they are going to have a tough time avoiding. The American news media has failed to convince the American people that illegal aliens are good for the nation and we can’t live without them. The growing disgust of the American people, fueled by a failing economy, irresponsible government spending and high unemployment rates is a confluence of deficiencies obvious to most of the voting public, and a direct threat to the Democratic Party’s ability to retain their current level of government control. In order to overcome the immediate threat resulting from their incompetent management as well as their failure to represent the best interests of their constituents, the Democratic Party must solidify and motivate the labor unions who bankroll their efforts and the Hispanic voters whose rapid growth in numbers provides the edge necessary to save the liberals worthless hides in the mid-term elections. Since the Democrats have failed to produce on the numerous promises made to both groups back in 2008 they must be very convincing in their futile fight against the Arizona law while adding incentives to the phony promises they have already failed to keep. Why anyone with an ounce of brain matter would trust them is beyond all comprehension but it should be an interesting diversion for the American people as well as an apt demonstration that the current administration is more interested in pandering to the minority special interest groups like La Raza than it is in doing what is best for the American people. If actions speak louder than words, the elitist despots controlling Washington D.C. are giving the American people a good view of a corrupt administration’s propensity for tyranny.
California Penal Code Section 834b
United States Constitution Article 1, § 8
Gonzalez v. City of Peoria
Gonzalez v. City of Peoria, 722 F.2d 468 (9th Cir. 1983) concluded based on analysis of the legislative history of 8 U.S.C. 1324 by People v. Barajas, 81 Cal. App. 3d 999, 1004-07, 147 Cal. Rptr. 195, 198-99 (1978) that the phrase “all other officers” in 8 Sec. 1324(c) gives state and local officers authority to enforce 8 Sec. 1324, 1325, and 1326 (1324, harboring illegal immigrants; 1325(a), illegal entry of aliens; and 1326, reentry)
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