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Ihre Unterlagen Bitte , Teil 2

Yesterday, I gave a brief history of our American Immigration law.   In this post, we’ll talk about the legal aspects of Arizona’s immigration bill (now law) and why I believe it violates several areas of the Constitution.  In fact, I could argue the Arizona law violates the Supremacy Clause of the Constitution as well as the 4th and 14th Amendments.

It is a well established legal precedent that the power to regulate immigration is exclusively a federal power.   And federal is superior to state law under the Constitution’s Supremacy Clause.   However, states are not totally precluded from addressing the illegal immigration issue.  For example, a state may refuse to do business with a company that has been found guilty of hiring illegal aliens.

In addition, federal law does allow state and local officials to arrest and detain illegal aliens under the following circumstances.   First, under the Antiterrorism and Effective Death Penalty Act (AEDPA) state and local law enforcement can arrest an illegal alien if the illegal alien is present in the United States and has been convicted of a felony and is back in the United States.  However, state and local officials can only detain that individual for as long as it takes to get them to federal immigration authorities.  In addition, the determination of whether someone is in the United States legally is a federal power, not a state or local one.

And numerous efforts by local governments to enforce immigration laws have been struck down as unconstitutional. For example, in Lozano v. City of Hazleton, the federal court struck down a local Pennsylvania ordinance that punished landlords or employers that were found to rent to or hire illegal immigrants.

Secondly,   the Arizona law allows the arrests of illegal immigrants based on reasonable suspicion.  Please note, the standard for an arrest is probable cause, a higher legal standard.  Reasonable suspicion is not enough.   In fact, the arrest based on reasonable suspicion violates the 4th Amendment prohibition against unreasonable search and seizure.  Reasonable suspicion is good enough for a stop, but not enough for an arrest.

Thirdly, we all know who is going to be stopped by this law.  It is not going to be the student from the Netherlands who attends Arizona State University and has overstayed his visa.  It is going to be the Latino who is working on someone’s roof.   If he doesn’t have ID, under Arizona law, he’s going to jail.  A good friend is from Puerto Rico and is American citizen.  He actually has friends in Tempe.  If he’s out jogging while out visiting, and has no ID, he can be stopped and because of his thick accent, can be hauled off to jail and having committed no crime.  And because this law will like target Latinos and Hispanics, I think I could go to Court and successful argue it violates the 14th Amendment rights to Equal Protection under the law because of its disparate treatment or disparate impact.

As I said in an earlier post, I can understand the frustrations that Arizona citizens must feel when it comes to the immigration issue.  But the solution is not at the state level it is to hold federal officials accountable.  In Indiana a coalition of small business owners are petitioning Senator Dick Lugar to work for comprehensive reform that not only secures the borders but responsibly deals with the reality of the 9-12 million illegal immigrants who are here.

Tomorrow: How to do meaningful illegal immigration reform.

  • wilson46201

    The Republican Governor just signed that vile law. There goes any hope of the GOP ever getting the ever-growing Latino vote.

  • Rico

    Well, you should be happy then, Wilson. Your Democrat party will have an even greater opportunity to decimate the Latino community as they have attempted (and to a great degree succeeded) in the black community.

    If you have your way, a generation from now the Latino community will largely be dependent on the government to sustain life, virtually guaranteeing their vote. You will attempt to rob them of their dignity and their drive to succeed. You will attempt to control their population by putting abortion clinics in their communities. You will devalue life for them and the importance of an intact, two-parent family. In fact, you will continue to push for welfare legislation that actually discourages the father from being in the home. The crime rate in their community will dramatically increase. A disproportionate percentage of their population will drop out of school and/or go to prison. Their illegitimacy rate will skyrocket. Their American dream will be shattered.

    You Dems do great work. That's quite a resume.

  • Rico

    Well, you should be happy then, Wilson. Your Democrat party will have an even greater opportunity to decimate the Latino community as they have attempted (and to a great degree succeeded) in the black community.

    If you have your way, a generation from now the Latino community will largely be dependent on the government to sustain life, virtually guaranteeing their vote. You will attempt to rob them of their dignity and their drive to succeed. You will attempt to control their population by putting abortion clinics in their communities. You will devalue life for them and the importance of an intact, two-parent family. In fact, you will continue to push for welfare legislation that actually discourages the father from being in the home. The crime rate in their community will dramatically increase. A disproportionate percentage of their population will drop out of school and/or go to prison. Their illegitimacy rate will skyrocket. Their American dream will be shattered.

    You Dems do great work. That's quite a resume.

  • wilson46201

    Rico obviously doesn't have a high opinion of African-Americans…

  • Dobie

    The ability to regulate immigration is a federal power – no question. You become a naturalized citizen of the United States – not of Indiana or Arizona. You are allowed legal entry into the United States – not just one particular state. Once you are awarded citizenship in one state, all states have to recognize it. Nothing in the Arizona law contradicts this.

    However just because something is a federal crime doesn't mean it cannot also be a state/local crime. The state/local authorities are not trying to supercede the federal authority – they are working along side of it. After all, if a person is in this country illegally – but default they are in the state illegally as well. I don't agree that the determination of whether someone is here legally is a federal power – it is a matter of fact. Someone is either here legally or not – there is no decision to be made.

    Who knows if this law will be deemed Constitutional. As absolutely ridiculous as the court sometimes is – it's anyone's guess. To be honest it wouldn't surprise me that actually enforcing a law would be unconstitutional.

    And yes – it will be hispanics that are targetted by this. This isn't racism – it's because that is who the great majority of illegal aliens are. Everyone wants to play the race card on that – but it's a simple matter of geography combined with economics. We don't have a lot of illegal immigrants from the Netherlands because we don't share a border. There isn't a good way to sneak into the US from the Netherlands. We don't have a huge number of illegal immigrants from our northern neighbor because Canadians don't have the economic incentive to come here illegally. That is the same reason why you don't have a lot of Americans sneaking into Mexico or Canada – in general there just isn't any incentive.

    I am tired of being told states shouldn't do anything about illegal immigration – that is the federal government's job. Great – let the federal government do their job and the states will quit trying to do it. In the meantime, let the people that are willing to act do so. Oh – and “dealing with the illegal immigrants” already here needs to be enforcing the laws already on the books – not another amnesty.

  • Rico

    Wow, you must have a copy of the Democrat playbook. I have the highest hopes and regard for those of African-descent. It is your party who should be held to account. You have promised much and have delivered nothing. You have secured their vote, and
    (to those of your ilk) that is enough. But President Alinsky would be proud. Deny the facts, change the argument, and attack the messenger.

    The socio-economic progress of the black community was stifled when your party told them they weren't as capable or smart as white Americans and needed a head start. Those statistics don't lie. Like your hero Andre, you're a race-bater and should be ashamed. (Can a dumpster-diver actually be capable of shame? Now there's the question of the day.)

  • Rico

    The previous was a response to Wilson's post, of course.

  • wilson46201

    Rico's rants and frothings won't salvage the damage done by that Republican Governor signing that odious anti-Hispanic law. TeaPartiers may be ecstatic but Latinos and many others will be loathe to vote for supporters of such draconian and short-sighted legislation…

  • IndyErnie

    Its obvious that he doesn't have a high opinion of you.

  • Rico

    Cross the border illegally into Mexico, Wilson (PLEASE!). You would be arrested and jailed. Maybe that's your fantasy, so perhaps you're not a good choice to make my point.
    I don't wish to send millions of Mexican children home, sentencing them to abject poverty. I do think we need to enforce our borders and discourage immigrants from breaking our federal laws to gain entry into the 'promised land'. When a roof is leaking, we must fiirst stop the leak before we begin to bail out the water (I said bailout. Don't get too excited!). We need to seal our border, first and foremost.
    The law-abiding, hard-working immigrants who are here illegally, should go to the back of the line to await citizenship after proving their identity. Then they should pay a fine that should include community or public service, and be allowed to stay on a probationary status. Let's not pretend we will load Latino families on buses and ship them south. We all know that will not happen, nor should it. We are better people than that.

    What needs to happen immediately is to show to even those we allow to stay that we are a nation of laws, and that there are consequences for breaking them. Besides, as Barry destroys our economy further and makes this once-great nation less attractive to immigrants, illegal entry will become less and less a problem.

    Then, the only illegals will be the Muslim terrorists (is it still legal to say that?) who wish to kill us for being us. What a fun time to be an American!

  • Think Again

    I don't know that the broad-brush works here, Wilson. It might have just the opposite effect.

    Rico is partially right. Americans are fed up with the federal government's lack of attention to this problem.

    I don't know the complete answer, but stopping the leak, as Rico suggests, might be a start. Lozano is a perfect case to cite for the over-arching problem surrounding this stupid law, Abdul. It will, very likely, be struck down. After millions in legal fees and lots of wasted court time.

    Mexicans are here because our economy, for some strange reason, demands cheaper, undocumented workers. Police that thoroughly–I mean completely–and you snuff out much of the reason for illegal border crossings. Ample laws exist today for that to occur.

    THe continued influx of illegals was predominantly a border state issue. Now it's spread to many other states, too. One of Pres. Bush's only smart moves was to try to mitigate this problem, but the hard-right in his own party failed him.

  • George R

    Apparently all criminal law is unconstitutional because, with sufficient cause, anyone can be hauled off to jail and not have committed a crime. “We all know” that the criminal law can be abused.
    Of course, you will not stay in jail if you are not found guilty, but that is apparently irrelevant.

  • George R

    Apparently all criminal law is unconstitutional because, with sufficient cause, anyone can be hauled off to jail and not have committed a crime. “We all know” that the criminal law can be abused.
    Of course, you will not stay in jail if you are not found guilty, but that is apparently irrelevant.

  • Think Again

    Wow, George…did you sprain something reaching that far?

  • Dobie

    I agree with you that those people who are currently in this country illegally should go to the back of the line when applying for legal entry or citizenship. But I need to point out that the end of that line is in their home country – not the US. To do anything else is a slap in the face of those people who want to come to the US and are following our rules – they aren't here.

    Think of it this way – you get want to see a popular movie. Instead of standing in line and paying for a ticket, you sneak in. When you get caught, you get sent to the end of the line for tickets – you don't get to stay in the theatre watching the movie while those people who followed the rules are still outside waiting patiently in line.

    Does that mean I want to load Latino families into busses and ship them south – as you put it? Well, if those families are here illegally, yes I do. How can it work any other way? You either catch someone who is here illegally or that person comes forward voluntarily. At the same time you have someone in some other country that wants to come to the US but is following our rules – so that person is waiting patiently for our extremely slow bureacracy to work. Now you say you want to put the person here illegally at “the back of the line”. How can you put the person who is here illegaly behind the person waiting patiently, if the person who is here illegally is allowed to stay in the US. At that point, the illegal has already obtained what the person following the rules wants.

    I will also argue against your characterization of the “law-abiding, hard-working immigrant”. I will grant you the hard-working part, but not the “law-abiding”. Just being in this country illegally is a crime (hence the “illegal” part). Beyond that, an illegal immigrant in this country is either paying federal/state/local/ income taxes/payroll taxes or they are not. If they are not, then that is a violation of the law. If they paying those taxes, then since they could not possibly have a valid SSN or tax payer ID number – they have to be using a fake or stolen one which is a crime. I know that is a “heads I win, tails you lose” scenario – but that is what happens when you break the law to begin with.

  • Taxpayer 834512

    I literally love Abdul's willingness to do more that pay lip service the fact that the airwaves belong to the public. With more levity and even-handedness than anybody else in the Midwest, maybe anywhere, he routinely airs both sides of issues directly from public. You've got to have more than just a droolcup and labotomy to not get to present your side of an issue on the Abdul show.

    However, that balance doesn't extend to blog writings- nor does it have to. How anyone can be preoccupied with immigration law that can understandably be construed as somewhat overbearing in ONE state, when we've now under legal siege for a suppossed “right” to health care and mandatory purchasing of health insurance in ALL 50 states is way, way beyond me. But, it's his blog.

    I sympathize completely with Dobie & found little to disagree with in TA's comments. The preying upon our citizenry and the illegals by both political parties is something we brought upon ourselves with our lethargy. But, I don't recommend herding immigrants up in trucks because we gave an implicit blessing to their arrival. Our partial disabling of American work ethic with multiple generations of benefits has in-turn enabled ludicrous scenarios like Abdul offering to find you a job if an illegal has taken it.

    The complicated answer to a complicated issue is many in construction have been priced-out by illegal labor. Try pricing a roof job by Americans versus illegal labor. And, there's a sizable amount of Americans that indeed don't want the jobs if they can live minimally on the government, whether extended unemployment, directly or with a girlfriend who's gets benefits as a single mom, some get Medicaid checks that shouldn't- lots of ways. There is legitimate instances and need in all these scenarios- but we've also made it easy to have a declined work ethic in our citizenry. That and our amazing debt are among the reasons it's tough to enable the glorified Euro economic model over here.

    First, I suggest we secure the border for both protection and economics. There are still nutcases that would like to blow us up., Every country, historically, has economic limits for benefits. It appears you can do some of this parked in front of a computer watching thru drone cameras. Maybe we volunteer as citizens rotationally. I don't think that's a bad idea either.

    Secondly, identify who's here. Perhaps a national ID program for all Americans. I don't like the latter at all., particularly, with this administration. But, the former is going to elicit more howls akin to the Arizona laws. Somehow, you have to identify who ya got to eventually sift-out the bad guys. Basic stuff.

    Third, issue a fine. They broke the law. How much will be hotly debated.

    Fourth, assimilate the illegals as citizens behind those already in line. It will take awhile.

    Fifth, while this is going on- benefits for EVERYBODY will be lessened through our (I hope) draconian economic recovery. That will take a long while. Unless we continue to be fiscally stupid, in which case we just crash and burn.

    Sixth, temporary work VISAs and everything else that also needs reform. Needless to the timeframe to voting will be a HOT factor.

    What's the better idea, given the economic, political, and behavioral reality?

  • Dobie

    Taxpayer –

    I agree with you that we need to strengthen our border. The drug wars in Mexico are starting to spill over the border. While this is a tragedy, I can only hope that some good will from it and our government will finally give more than lip service to protecting our border. You are correct that there are people that want to harm the US. While to the best of my knowledge no terrorist has come in through our southern border, the vulnerability certainly exists.

    A national ID is an idea whose time has come. We currenlty have a quasi-national ID in your SSN, coupled with a state ID in your drivers license. Neither of these are secure. While I do have privacy concerns, I think it would be better to have a secure form of ID that is as fraud-resistant as possible (nothing will be completely fraud-proof) than what we have now.

    I have no problem with fining people that have broken the law.

    I cannot agree with your fourth point. How can you say you are assimilating illegals behind those already in line if you let them stay in the country they are in line to enter? It makes no sense whatsoever. You are rewarding people for breaking our laws, and basically telling the people that want to come here legally that they are stupid for following our laws.

    In reality we will not be rounding up millions of people. Though as we find people we definitely should be deporting them. What we can and should be doing is making it as uncomfortable as possible for anyone here illegally. Cut off all benefits for people here illegally and require proof of citizenship/legal immigrant status before providing any benefits. Implement severe fines (with the loss of licenses to operate for repeat offenders) for anyone that hires illegal immigrants. This would have to be coupled with an employment verification system that would make it easy for those people here legally to prove that.

    Get rid of benefits and jobs for illegal immigrants and they will go back home by themselves. Many experts are reporting the drop in illegal immigration during the recession.

    Once we have protected our borders and stopped the flow of illegal immigration, we also need to look at our legal immigration system. There are a lot of people in a lot of countries that would like to come here. We need to look at the needs of our country and how they match up with the wants of our would-be-citizens. Right now our legal immigration system is heavily skewed towards those with high-demand skills – making it very difficult in some cases for low-skill workers to come here legally. I an not excusing anyone that has broken our laws by coming here illegally, but I do have to wonder how many would have chosen to come legally had there been an easier way to do so. We need to look closely at how we want to invite to become part of our American family, though the first and foremost criteria has to be what is best for this country.

    We also have to face the fact that stopping illegal immigration would have side effects. I don't believe there is any such thing as a job an American will not do, but I do believe there are wages they will not do them for. So if industries that are currently abusing illegal labor is forced to hire legal workers, you can expect prices to rise. Some agriculture and construction come to mind. Personally I think the rise in prices will be more than offset by lowered costs of providing services to illegal immigrants.

  • Taxpayer 834512

    Dobie-

    First of all I admire your writing. I admire your relatively apolitical, conversational way of conveying your thoughts.

    I concur there's leverage in getting the idenfication system off the ground with illegal immigants in reducing or denying their benefits. No disagreement that ideally, there's a case for anyone entering this country to be deported.

    However, ideally, we should also have country in which our fourth estate investigates all of our Presidential candidates relatively equally, large corporations shouldn't be able to hide funds from taxation in offshore accounts, children should be able to have real parenting after less than two years of dysfunctional parenting, etc., etc., etc.,…..

    Given political and sociological reality, I'm ready to settle for a temporary immigration fix. I don't like it. It's not fair. In some ways it's not right”. But, I'm after a long term depolarization and economic recovery of this country, rather than further escalating what amounts to class warfare between producers and lesser producers.

    There are some aspects we've discussed that can make the thing more or less “fair” and “right”: the size of the fine, the length of time before an illegal can become a citizen before someone that played by the books, the length of time before they can vote, the reduction or elimination of some benefits before becoming a citizen, etc.

    But, as much as part of me concurs, I think it's a bigger long term loss than gain to haul everybody en masse to their homeland. Maybe, maybe, a long term, not all at once, transistion to citizenry in which you have to go out and back-in – legally. But, most importantly, securing the border FIRST, so WHATEVER the solution is, we don't go through this again.

    Thanks for posting your thoughts, and welcome to the ranks of pseudo-hater/racist/xenophobehood. It's always hot in this kitchen.

  • IndyAries

    “Thirdly, we all know who is going to be stopped by this law.”

    Yep, the massive majority of people violating our laws will be stopped.

    Of course, Abdul cannot abide this. In his world, of 100,000 illegal aliens stopped, 99,999 could be latino, and 1 could be from Sweden. Yet, he would claim racism, and how 'unfair' the law is.

    As I understand, the government south of our border is corrupt. Well, why don't the Citizens take up arms and change their government.

    It worked for us, once upon a time.

    They won't change the government in their country, because we make it so easy for them (illegals) in our country.

  • Name

    Simple question…. if you could break a law by sneaking into another country but your children if born in that country would be citizens of that country and guaranteed a better life, would you do it? If hypothetically in Canada you would get better healthcare, make 200-300% more in wages allowing you to send money back to your relatives supporting them, and enjoy a better system of government and your children born there would get to stay forever would you sneak across into Canada?

    I remember a very interesting piece on the national media a few years ago. It was very pro-amnesty and they interviewed a woman who was the daughter of an illegal (she is a citizen and a law student). She argued for amnesty, etc and was very fluent in English. She continued by how unfair it would be to deport her father who had been here in the US for 30 years. They showed an interview with her father which was translated into English. 30 years and he doesn't speak the language of the country? Lot of effort on his part.

  • Dobie

    Taxpayer –

    Thank you for you rational discussion of this topic. It seems to many times any discussion of this topic degenerates very quickly into accusations of racism or socialism.

    I agree with parts of your post. There are a lot of things that should happen in an ideal world that doesn't in reality. However I still have trouble with idea of doing a “temporary immigration fix”. Beyond the very important concept that it is not fair or just, I don't think it would work. This was the method that was tried in the 1980s that was supposed to fix all the issues – yet here we are today. I have seen nothing that indicates to me that granting an amnesty again would produce a different result. And to use an old cliche – fool me once, shame on you. Fool me twice, shame on me.

    I'm also not sure that I agree that the goal of all (or even most) illegal immigrants is citizenship. Many come here to work to send money home with the idea of getting enough money to be able to live comfortably back in their home country. I don't think withholding citizenship but allowing an illegal immigrant to stay and work would be much of a punishment to many of them. As for the fines – make them too small and they are worthless. Make them too large and people won't pay them and will simply stay here illegally. Really, the biggest difference between a citizen an someone legally allowed in the country is the ability to vote. Think of how many natural born citizens don't bother to vote.

    The only method I see to actually solving the problem we have with illegal immigrants is to get rid of the incentives that draw people here coupled with a strong border defense. Actually if Mexico's government was less corrupt we should also at least consider aid to help them bolster their economy – which would dramatically reduce the incentives that draw people here.

  • George R

    I have not read the legislation, but proponents of the legislation claim:

    1. The wording of the legislation was copied verbatim from federal statutes, therefore, there should not be any variance between state and federal standards.

    2. The legislation was not intended to create an Arizona based border patrol, so your friend from Puerto Rico is safe. The purpose of the statute is to require Arizona police to investigate illegal immigration when it shows up as an issue during the ordinary operations of the police departments.
    For example: When the police are investigating a theft and it becomes clear that a suspect is an illegal alien. The police would be required to pursue both the theft angle and the citizenship angle. Formerly the citizenship issue was ignored.

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