…Paved with [Bad] Intentions

You know the old adage: “The road to hell is paved with good intentions.” The interesting thing is that the road to hell is also paved with bad intentions. So, all in all, following intentions is not the best way to go.

The 9th Circuit Court of Appeals recently decided on the infamous Arizona law S.B. 1070. The court ruled against Arizona on the basis that the law was in violation of the Supremacy Clause of the Constitution (Article 6, paragraph 2.)

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” –The US Constitution, Article 6, paragraph 2

The purpose of the Supremacy Clause is to eliminate inconsistencies that can arise between state and federal law. It also serves to unify the standards so that federal laws apply to all states without interference and so that a state cannot violate the rights granted under the Constitution (presumably protected by federal law, but not always.)

So the question that the 9th Circuit was asking was, “Is this law unconstitutional under the Supremacy Clause?” Their answer was a wobbly, “yes” propped up by slippery misinterpretations of federal law that are either intentional or just caused by utter ignorance.

The Court found that section 2(B), 3, 5(C) and 6 of S.B. 1070 violated the Supremacy Clause. Their main problem with section 2(B) existed with the first few sentences, which state, “For any lawful contact made by a law enforcement official or agency of this state…[etc.] where reasonable suspicion exists that a person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.” (Emphasis, mine.)

The Court interpreted this statement to say that an attempt shall be made to determine the immigration status. Thus, according to the 9th Circuit, SB 1070 does not allow a person to be released until their immigration status is confirmed. Blatantly ignoring the parts of the statement, “a reasonable attempt,” and, “when practicable.” The Court is jumping to conclusions, to say the least.

But the Court takes it further. They then conclude, under 8 United States Code (USC) § 1357(g) that each officer must have approval of the Attorney General before they can enforce federal immigration law. The Court states, “In sum, 8 U.S.C. § 1357(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General…”

This interpretation is also erroneous. If you actually read 8 USC § 1357(g) you quickly see that this is precisely how the law did not want to be interpreted. 1357(g) consistently states that the Attorney General may enter into an agreement. A wish that the section made explicitly clear in section 9, “Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.”

Section 3 of SB 1070 states that any immigrant who is not in compliance with 8 USC § 1304(e) or 8 USC § 1306(a) will be fined a maximum of $100 and/or jailed for twenty days on first offence and thirty days for later offences. 1304(e) simply states that all immigrants over the age of 18 must carry some certificate of alien registration on his person. Wait… This is federal law? I thought people were tearing Arizona apart because they couldn’t just take their kid for some ice cream or something like that? Why aren’t we boycotting the Feds then? Whatever…

1306(a) is the provision that states that all immigrants must apply for registration, and if they don’t, they can be fined up to $1,000 and/or six months in jail. So, as far as 1304(e) is concerned, the Arizona law is spot on. And as far as 1306(a) is concerned, Arizona is below the penalties of federal law. So what’s the Court’s problem? The problem they have is that this is not an area that states have “traditionally occupied,” therefore they are in violation! Heresy! Wait, does the Supremacy Clause say, “or areas that the Fed has ‘traditionally occupied'”? Um, oh no, I guess it doesn’t… Hmm…

Section 5(C) makes it unlawful for an immigrant who is knowingly illegal to apply for work, solicit work, or work as an independent contractor in Arizona. While the Court recognized — from a 2009 Supreme Court case — that this is an area usually left up to the states; they concluded — with a 1991 Supreme Court case and a 1989 law — that it violates the intent of our government. Is the 9th Circuit trying to overturn the Supreme Court?

Section 6 states that it is permissible for a law enforcement officer to arrest a person suspected of committing a crime that would make him removable from the US without a warrant but with probable cause. The Court argued under 8 USC § 1252(c) that before arresting such a suspect law enforcers must obtain “appropriate confirmation” from the Immigration and Naturalization Service. Since there is no such provision in the Arizona law, it is, according to the 9th Circuit, undermining federal law.

But Hans A. Von Spakovsky (senior legal fellow at the Heritage Foundation) assures us, “Supreme Court precedent recognizes the inherent authority of local police to enforce the civil provisions of federal immigration law — which is exactly what Arizona is proposing to do.”

The Arizona law does not undermine federal law it supports and enforces it. But the Court continually stated that they did not believe the law was in line with Congressional intent.

We stress that the question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way. Arizona’s framing of the…issue assumes that S.B. 1070 is not pre-empted on its face, and then points out allegedly permissible applications of it. This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is pre-empted by the Supremacy Clause.” –USA v. Arizona, 9th Circuit Court of Appeals, 2011

Does the Supremacy Clause protect Congressional intent? No. It protects federal law. It doesn’t matter if Congress doesn’t want the law to be enforced, the law is the law. Also, upholding the standard of Congressional intent drags States under dangerously subjective standards that will likely stifle proper laws.

But, hey, it’s the 9th Circuit, what can you expect? Intelligent and reasonable decisions? Ha! I’d be more worried if the 9th Circuit voted for Arizona. I can only hope that this case ends up in the Supreme Court. They have a better chance of getting it right. 5-4.

-Ben

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