Joe Summer
Footballguy
Wow. I'm shocked.
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Arizona passes nation's toughest immigration law (1 Viewer)
- Thread starter timschochet
- Start date
Dinsy Ejotuz
Footballguy
Tim's got it about right IMO. If police can't randomly stop brown people and demand they prove they're citizens the law has been gutted. That was the heart of this law, and its most publicized feature.
timschochet
Footballguy
Not quite true. That part was extremely controversial as well. Just listening to the Arizona attorney general right now. After declaring victory because of 2b, he says Arizona police will start enforcing it today and will do so without racial profiling. I don't see how this provision can be enforced without racial profiling, unless the state asks for citizenship papers of every person they arrest (consider the bureacracy!) If they only question certain Latinos, then it's clearly racial profiling and will be challenged and tossed out.No the controversy came from applying this to stopping people for looking like immigrants and asking for their papers. Not for checking immigration status as part of an criminal investigation of something else.This is the section of the law that requires police to "check your papers". Seemed that was the most controversial section when this was first being discussed.
Sarnoff
Footballguy
If ObamaCare is overturned, it'll be interesting to contrast and compare the behavior of those on the right after this ruling to the behavior of those on the left after Thursday.Yeah, and unfortunately I think this decision will be thrown back in our faces when us liberals are up in arms 2-3 days from now.I'd keep my thumb in its holster until Thursday.John Roberts.
timschochet
Footballguy
Not sure how one decision has anything to do with the other, EXCEPT that this decision seems to demonstrate that you can't trust what goes on in oral debates in order to predict the outcome. If that is the case, then perhaps the "experts" who predicted the repeal of HCR are wrong as well...Yeah, and unfortunately I think this decision will be thrown back in our faces when us liberals are up in arms 2-3 days from now.I'd keep my thumb in its holster until Thursday.
tommyGunZ
Footballguy
How would you describe the behavior of the left?If ObamaCare is overturned, it'll be interesting to contrast and compare the behavior of those on the right after this ruling to the behavior of those on the left after Thursday.Yeah, and unfortunately I think this decision will be thrown back in our faces when us liberals are up in arms 2-3 days from now.I'd keep my thumb in its holster until Thursday.
Yankee23Fan
Fair Tax!
Look forward to reading this but it won't be until the weekend at least.
Wrighteous Ray
Footballguy
I think the way TGunz is envisioning it, the liberals will accuse the Supreme Court of being a bunch of Republican partisan hacks if they strike down the Health Care law. And the Court's defenders will say "no they aren't -- look at what happened in the Arizona immigration case."
Yankee23Fan
Fair Tax!
I'm pretty sure any attorney that has his commen sense button turned on when debating politics would tell you that. I've had judges broadside me so bad I didn't know what end was up and I've won, and I've had judges joke around with me and make it seem like they were on my side, only to gut me. I actually had one judge after a bench trial pull all of the attorneys in his office and in front of the two other guys that combined had been practicing for close to 100 years said that I did a great job and he was impressed with my argument.And the proceeded to find against me in every single count.
timschochet
Footballguy
I see now. Thanks. It's a good point.
I'm a pretty far left leaner, but I don't think (at least I hope) that many on the left will think this is the case. I'm sure there will be some vocal lefties complaining, and others that might initially make this complaint from emotion.However, I think most on the left don't actually belief Justice Kennedy is anything close to a "partisan hack".
timschochet
Footballguy
Very interesting. I certainly don't get that impression in the case of HCR. Let's face it: ever since Anthony Kennedy's challenging questions in the oral debate, conservatives have been jubilant, and liberals have been despondent. Everyone seems to agree that at least part of HCR is going to be overturned.I'm pretty sure any attorney that has his commen sense button turned on when debating politics would tell you that. I've had judges broadside me so bad I didn't know what end was up and I've won, and I've had judges joke around with me and make it seem like they were on my side, only to gut me. I actually had one judge after a bench trial pull all of the attorneys in his office and in front of the two other guys that combined had been practicing for close to 100 years said that I did a great job and he was impressed with my argument.And the proceeded to find against me in every single count.
Apple Jack
Footballguy
Does this have us any closer to kicking Sheriff Joe out of the country?
Wrighteous Ray
Footballguy
Part of the reason that I think there's likely to be that reaction is because many of us believed that the cases were frivolous when they were filed and that if they made it to the Supreme Court, the law would be upheld by like 8-1 (Thomas dissenting). We've spent a lot of time debating the merits of the cases, and I still think that the arguments to strike down the law are weak. So if the Court strikes it down, partisan hackery seems like the most likely answer. Just like it was a popular sentiment after Bush v. Gore.**Don't start that crap about how Bush v. Gore was bipartisan because part of the opinion was 7-2. The most important part of the opinion was 5-4.
NCCommish
Footballguy
The court is going to have go against it's own decisions to strike down the mandate. I have been neither jubiliant or despondent. I think we get a 5-4 and have no idea which way it is going to go. Of course the US Chamber of Commerce has never lost in the Robert's Court so anti-HCR people have that going for them.Very interesting. I certainly don't get that impression in the case of HCR. Let's face it: ever since Anthony Kennedy's challenging questions in the oral debate, conservatives have been jubilant, and liberals have been despondent. Everyone seems to agree that at least part of HCR is going to be overturned.I'm pretty sure any attorney that has his commen sense button turned on when debating politics would tell you that. I've had judges broadside me so bad I didn't know what end was up and I've won, and I've had judges joke around with me and make it seem like they were on my side, only to gut me. I actually had one judge after a bench trial pull all of the attorneys in his office and in front of the two other guys that combined had been practicing for close to 100 years said that I did a great job and he was impressed with my argument.And the proceeded to find against me in every single count.
First, there's nothing wrong with going against its own decisions. Second, there's no previous Supreme Court decision directly on point, so it won't have to go against its own decisions no matter which way it rules. But that's probably a better discussion for a health care thread rather than an immigration thread.
Wrighteous Ray
Footballguy
timschochet
Footballguy
Here is a quote from Scalia's dissent, per CNN:
If Arizona had known about this ruling in advance, it never would have joined the United States in the first place.
Or something to that effect.
If Arizona had known about this ruling in advance, it never would have joined the United States in the first place.
Or something to that effect.
Phase of the Game
Footballguy
How so? They have never had to make a decision like this.The court is going to have go against it's own decisions to strike down the mandate.Very interesting. I certainly don't get that impression in the case of HCR. Let's face it: ever since Anthony Kennedy's challenging questions in the oral debate, conservatives have been jubilant, and liberals have been despondent. Everyone seems to agree that at least part of HCR is going to be overturned.I'm pretty sure any attorney that has his commen sense button turned on when debating politics would tell you that. I've had judges broadside me so bad I didn't know what end was up and I've won, and I've had judges joke around with me and make it seem like they were on my side, only to gut me. I actually had one judge after a bench trial pull all of the attorneys in his office and in front of the two other guys that combined had been practicing for close to 100 years said that I did a great job and he was impressed with my argument.And the proceeded to find against me in every single count.
I have been neither jubiliant or despondent. I think we get a 5-4 and have no idea which way it is going to go. Of course the US Chamber of Commerce has never lost in the Robert's Court so anti-HCR people have that going for them.
This liberal will be happy if ObamaCare is ruled unconsitutional, them maybe it won't be another 30-40 years until we get universal or medicare for all!If ObamaCare is overturned, it'll be interesting to contrast and compare the behavior of those on the right after this ruling to the behavior of those on the left after Thursday.Yeah, and unfortunately I think this decision will be thrown back in our faces when us liberals are up in arms 2-3 days from now.I'd keep my thumb in its holster until Thursday.
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The Arizona case is pretty interesting if you're into federal preemption issues, and who isn't?
Forget about how you think illegal immigration issues should be handled. That's not the point. The point is how to handle a situation where both the federal government and a state government seek to regulate the same sort of thing.
Suppose the federal government passes the Healthy Eating Act, which requires every household to purchase one pound of broccoli each month. Failure to do so results in a $50 fine.
Suppose the state of Mississippi passes a law saying that all broccoli sold in that state must be deep fried and coated in powdered sugar. It also ups the penalty for failing to purchase the federal minimum to $500 and ten days in jail.
The federal and state laws may not be inconsistent with each other on their face, but it's clear that there's some tension between them. How should the courts handle it?
Based on my quick skim of the opinions in the Arizona case, there are a few ways.
Justice Thomas would say that the Mississippi law should be enforced as long as it doesn't contradict the federal law. Since buying fried broccoli is not inconsistent with buying broccoli, it looks like both laws can be enforced. If Congress wanted people to buy fresh broccoli instead of fried, it could have said so. It didn't say so. Therefore, the Mississippi law should be upheld.
Justice Scalia would say that Mississippi is a sovereign state that has a right to regulate food-related matters regardless of what the federal government does. Therefore, the Mississippi law should be upheld.
Everybody else, as far as I can tell, would say that a state law is unenforceable not only if it explicitly contradicts federal law, but also if it frustrates the purpose or objectives of a federal law on the same topic — or, one might say, if it's inconsistent with the spirit of the federal law, even if not the letter. (The majority struck down three out of four challenged provisions using this reasoning; Justice Alito would have struck down only one of the four. But he seems to take the same general approach; he just disagrees about the extent to which the state law goes against the spirit of the federal law.) Under this approach, requiring broccoli to be deep fried and coated in sugar seems to go against the objectives of the federal Healthy Eating Act, and would likely be preempted.
I think Justice Scalia's approach is hopelessly romantic.
At first blush, Justice Thomas's approach has a few things going for it. First, it generates clearer answers since it's less wishy-washy. Second, it puts the onus on Congress to specify under what circumstances its legislation will preempt state laws. In theory, this should again promote clarity; and it doesn't really limit what Congress can do (or prevent states from doing) — it just forces Congress to be more explicit about those choices.
On second thought, however, I don't think Thomas's approach really does promote clarity. I envision Congress just adding a line to every law saying "this Act shall preempt any state laws that frustrate its purpose." And we're back to using the Kennedy-Roberts-Ginsburg-Breyer-Sotomayor-Alito test after all. (Kagan sat this one out.)
Ultimately, I think the majority's approach makes good sense. (I also think Alito had some decent arguments that a couple of the struck-down provisions don't impermissibly step on federal toes.)
Forget about how you think illegal immigration issues should be handled. That's not the point. The point is how to handle a situation where both the federal government and a state government seek to regulate the same sort of thing.
Suppose the federal government passes the Healthy Eating Act, which requires every household to purchase one pound of broccoli each month. Failure to do so results in a $50 fine.
Suppose the state of Mississippi passes a law saying that all broccoli sold in that state must be deep fried and coated in powdered sugar. It also ups the penalty for failing to purchase the federal minimum to $500 and ten days in jail.
The federal and state laws may not be inconsistent with each other on their face, but it's clear that there's some tension between them. How should the courts handle it?
Based on my quick skim of the opinions in the Arizona case, there are a few ways.
Justice Thomas would say that the Mississippi law should be enforced as long as it doesn't contradict the federal law. Since buying fried broccoli is not inconsistent with buying broccoli, it looks like both laws can be enforced. If Congress wanted people to buy fresh broccoli instead of fried, it could have said so. It didn't say so. Therefore, the Mississippi law should be upheld.
Justice Scalia would say that Mississippi is a sovereign state that has a right to regulate food-related matters regardless of what the federal government does. Therefore, the Mississippi law should be upheld.
Everybody else, as far as I can tell, would say that a state law is unenforceable not only if it explicitly contradicts federal law, but also if it frustrates the purpose or objectives of a federal law on the same topic — or, one might say, if it's inconsistent with the spirit of the federal law, even if not the letter. (The majority struck down three out of four challenged provisions using this reasoning; Justice Alito would have struck down only one of the four. But he seems to take the same general approach; he just disagrees about the extent to which the state law goes against the spirit of the federal law.) Under this approach, requiring broccoli to be deep fried and coated in sugar seems to go against the objectives of the federal Healthy Eating Act, and would likely be preempted.
I think Justice Scalia's approach is hopelessly romantic.
At first blush, Justice Thomas's approach has a few things going for it. First, it generates clearer answers since it's less wishy-washy. Second, it puts the onus on Congress to specify under what circumstances its legislation will preempt state laws. In theory, this should again promote clarity; and it doesn't really limit what Congress can do (or prevent states from doing) — it just forces Congress to be more explicit about those choices.
On second thought, however, I don't think Thomas's approach really does promote clarity. I envision Congress just adding a line to every law saying "this Act shall preempt any state laws that frustrate its purpose." And we're back to using the Kennedy-Roberts-Ginsburg-Breyer-Sotomayor-Alito test after all. (Kagan sat this one out.)
Ultimately, I think the majority's approach makes good sense. (I also think Alito had some decent arguments that a couple of the struck-down provisions don't impermissibly step on federal toes.)
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timschochet
Footballguy
Apparently this remains open to question, and to challenge. Importantly, it can only be done if you're already arrested for some other reason. But it seems pretty simple to me that if an entity like the ACLU waits a few months and then points out that, of those who were asked for papers, 95% of them were Latino, it will be extremely difficult for Arizona to claim that racial profiling is not happening.
Federal law already gives state officers the authority to check immigration status, so that provision of the Arizona law doesn't present any preemption issues.It is possible that Arizona officers will exercise their authority in an unconstitutional way. But a constitutional challenge in that regard will have to wait until it actually happens.
roadkill1292
Footballguy
I'm glad we have you around but you're such a dork.
IvanKaramazov
Footballguy
I agree with Klein here, which is why I think we should all expect the liberal justices to side with the conservative majority for the good of the court. Glad you guys are with me on this.
If it does get overturned, I hope it isn't 5-4 and some of the liberals on the court agree. I don't think 5-4 votes along partisan lines are good at all. If HCR holds up, I wouldn't be surprised if Roberts comes along and makes it 6-3.
Bottomfeeder Sports
Footballguy
That is generally how I feel about most of your post. Very impressed with your arguments, but you are still wrong most of the time.... I actually had one judge after a bench trial pull all of the attorneys in his office and in front of the two other guys that combined had been practicing for close to 100 years said that I did a great job and he was impressed with my argument.And the proceeded to find against me in every single count.
In this case I guess the Supreme Court disagreed with your assertion that this law was a bunch of nothing.
Bottomfeeder Sports
Footballguy
Read the thread. Many of our knowledgeable attorneys largely whiffed from day one in this thread. Though you have to acknowledge that some of our attorney members routinely make idiotic assertions just to keep their debating skill well polished.
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Todd Andrews
Footballguy
Posner owns Scalia.
Cold Dead Hands
Footballguy
Estimated. You think that Illegal immigrants in Arizona are lining up to be counted in the census? Could it be that in a state as tough on immigration as Arizona has been, illegal immigrants may be less public?'Todd Andrews said:
Yankee23Fan
Fair Tax!
Posner is usually better than that. I don't find this very compelling of anything other than his opinion of Scalia, but we've pretty much known his opinion of Scalia for some time. Although, he does raise an interesting point. "If [Arizona] succees in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net fain to society would have been from Arizona's efforts..."'Maurile Tremblay said:
Without sitting down to write a brief against Judge Posner (although that would be fun in a nerdlawyer type of way) I think he raises an issue that might not be fair to Arizona. The Arizona law, such as it was, was a law passed by Arizona for the people of Arizona. The greater societal good - I read that to be all of our country, or at least the part ofthe country dealing with illegal immigration issues - is not their concern. That is the concern of the federal government, if at all. The Arizona legislature is empowered to administer, along with the Governor, the State of Arizona. They aren't there to makes the lives of people in New Mexico better. This is a rather fundamental point in federalism. Each state is its own sovereign. And I still find Arizona's overall theoretical argument valid - if the federal government won't enforce the law and the result is a harm to Arizona, why can't Arizona enforce it? It's a comelling question to me that calls into question the nature of our federalist system.
As for sharing the brunt of the illegal immigration problem, again, if he recognizes a problem, we fall back into a federalism argument again. Is the government of Arizona supposed to do nothing for its citizens because what they do might hurt citizens of New Mexico? If that is a true position than the State of Delaware needs to be decertified as a state because their business formation and taxaion laws make them a great place to house a business to the deteriment of the tax base of other states. But I know Posner doesn't think that, so why add this part to his comments? It's like we all recognize a problem but we disagree on a solution, and in that disagreement we lose sight of the problem. The old axe to a friends forehead to get a fly type thing.
If I was on the Court I probably would have sidded with Arizona on this one, but I understand why they didn't, and in some respects it was a fair holding. But the question still bugs me about the enforcement or nonenforcement of the federal government. What is a state to do in this situation? I don't know if we have a good answer, or even if there is one.
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Todd Andrews
Footballguy
Posner stands head and shoulders above Scalia and should be a Supreme Court justice.
Easterbrook kicks his ### too.
timschochet
Footballguy
Is there any doubt that this law, and the one in Alabama, increased Latino support for the Democrats last night? 73%!!!
Until and unless Republicans are willing to confront this issue and agree to some sort of Path to Citizenship for illegals, they're not going to win very many national elections.
Until and unless Republicans are willing to confront this issue and agree to some sort of Path to Citizenship for illegals, they're not going to win very many national elections.
Reepicheep
Footballguy
Completely agree. People coming here from Mexico and elsewhere are looking for opportunity and a future. They want to work hard and make a life for themselves, I've seen it. Policies based on liberty and economic freedom should be an easy sell to these folks. The Latino vote is there for the taking by Republicans IMO. Old white people afraid of brown people is a dwindling demographic. Latino is a skyrocketing one. This should be pretty simple, every state from Florida to Arizona are locked up basically forever. It's not like the Dems are going to try to pick up the anti-immigrant vote in response.
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