Freedom Line Blog

As CFIF reported, there is more to Kris Kobach than being the principal drafter of the Arizona’s illegal immigration law SB 1070.  Last night, Kobach secured the Kansas Republican Party’s nomination for Secretary of State.  The accomplishment makes him likely the highest profile SOS candidate in the country, and is sure to put election law-related issues at the forefront of the midterm elections.  First up on Kobach’s agenda?  Requiring all voters to provide a photo ID when casting a ballot.

Stay tuned.

Below is one of the latest cartoons from Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

National Review Online’s Andrew McCarthy pens one of the best explanations I’ve seen refuting the Obama Administration’s argument that Arizona’s SB 1070 is preempted by federal law.  A bit surprisingly, McCarthy’s column is in response to (and a bit in contention with) his colleague Heather McDonald.

McDonald wrote a column earlier today fretting about the hypothetical “preemption” consequences of an Arizona law enforcement official deciding to prosecute an illegal alien under SB 1070 after federal officials declined to prosecute under federal law.  McDonald implied such a scenario would trigger a successful preemption claim (i.e. federal law trumping state law) because the actions of the state and federal officials would be in conflict.

Though their actions may be in conflict, argues McCarthy, that doesn’t mean the laws are in conflict.  The distinction is crucial, but too often glossed over by pundits.

In a nutshell, the legislative branch makes a law and the executive branch has the discretion whether and how to enforce it.  Since police officers and prosecutors are agents of the executive branch at both the state and federal level, they have discretion whether and how much to enforce a law passed by the legislature.  (That’s why they can plea bargain cases and drop charges.)

So, if the federal layer of government decides not to enforce its law, but the state layer of government decides it will enforce its identical law, there is no legal conflict; only a different policy choice by each layer.

Thus, claiming that SB 1070 is unconstitutional because it is preempted by federal law is a non-starter since there is no legal conflict between the two.  In fact, they are identical.  Knowing the meanings behind the terms shows that the litigation surrounding SB 1070 is based on nothing more than a policy conflict between the U.S. Department of Justice and the State of Arizona over how to apply the same law.

A federal judge has temporarily enjoined portions of SB 1070, Arizona’s legislative effort to address the flood of illegal immigrants in that state.  The enjoined portions will be put on hold pending the resolution of the underlying lawsuit, and appeal of the ruling is expected in any case.

Two immediate reactions, however, immediately come to mind.  First, it seems curious that the judge would justify her injunction on the basis that local enforcement creates a “burden” that only federal officials may impose, since the entire problem arises because federal officials are simply failing to enforce something they’ve made illegal.  Second, opponents of SB 1070 may be celebrating what may prove a Pyrrhic victory.  Specifically, how do such opponents expect the electorate, which heavily favors the law, to react to a ruling that condones the federal government effectively sitting on its hands while a problem that it has made illegal festers?  The backlash in the voting booth could be severe.  Stay tuned…

Senators Jim DeMint (R-SC) and David Vitter (R-LA) today introduced an amendment that would prohibit the Obama Administration, including the Department of Justice and other federal agencies, from participating in lawsuits seeking to invalidate Arizona’s tough new immigration law.

In announcing the introduction of the amendment, Senator DeMint stated:

States like Arizona shouldn’t be prosecuted for protecting their citizens when the federal government fails to do so.  The federal government is rewarding illegal behavior and encouraging many more to enter our nation illegally when they refuse to enforce our laws. States along the border are facing kidnappings, drug trafficking, human trafficking and gang violence and they have a duty to keep their residents safe. Instead of suing states for doing his job, the President should get serious and stop holding border security hostage to pass amnesty and score points with his liberal base.”

Senator Vitter, who is chairman of the U.S. Senate Border Security Caucus, commented:

The state of Arizona is simply taking responsibility for a problem that the federal government has neglected for years, but Washington’s only response is to oppose these new enforcement efforts and take them to court.  The Obama administration should not use taxpayers’ money to pay for these lawsuits that the American people overwhelmingly oppose.”

According to a statement released by Senator DeMint’s office, the “amendment (#4464) could be voted on next week as part of the debate on the small business bill on the Senate floor.”

Even though the ink is barely dry on the Justice Department’s lawsuit against Arizona’s new illegal immigration law, Attorney General Eric Holder is already speculating about what to do if (i.e. when) his challenge fails: play the race card.

In legal terms, the Justice Department’s current lawsuit is a “facial” challenge, meaning that the DOJ alleges Arizona’s SB 1070 is unconstitutional “on its face,” or by its own terms.  Since SB 1070 mirrors federal law, only the most liberal application of the preemption doctrine would consider identical versions of the same statute to be in conflict, thus requiring federal law to preempt SB 1070.

Because Arizona’s the law is valid on its face the DOJ’s current lawsuit will lose, and SB 1070 will be allowed to go into effect.  Then Arizona law enforcement will be able to ask a person about their immigration status if the person is stopped because of reasonable suspicion she is engaged in criminal activity.  According to Holder, a few months after implementation the DOJ would then challenge SB 1070 “as applied” by law enforcement because officers would allegedly ask for immigration papers from a person because of his race – even though SB 1070 explicitly prohibits the officer from doing that.

But in order to get enough empirical evidence to prove systematic racial profiling, the DOJ will have to closely monitor the situations where Arizona officers apply SB 1070.  To do that will require Immigration and Customs Enforcement (ICE)to cooperate with Arizona officers checking a suspect’s immigration status; something the ICE chief is loathe to do.  Moreover, since nearly all of the illegal immigrants in Arizona are Hispanic, nearly all of the suspects questioned and verified will be Hispanic.  Does the near universal application of SB 1070 to these suspects prove racial profiling?  Or, on the other hand, does it prove merely that a particular subset of the Arizona population contains a statistically outrageous number of illegal immigrants?

Both the current lawsuit and this new proposal by the Attorney General are fools’ errands in sloppy litigation.  Eric Holder is 0-for-Everything as the nation’s top prosecutor.  Hopefully, President Barack Obama will let him get back where he belongs: challenging valid laws for the sake of liberal causes as a private attorney.

Yes, he CAN!  President Barack Obama managed to pull off a rare feat this week: convincing conservative Americans to voluntarily contribute more money than they owe to the government to help it fund a program.  The problem for the president is that thousands of Americans from all 50 states were sending the checks to Arizona to fight the Obama Justice Department’s legal challenge to SB 1070, the state’s new illegal immigration law.

Most of the donations were between $10 and $100; precisely the types of contributions that propelled Obama to victory while giving his campaign team reason to brag that his support was wide and potentially very deep.  Faced with a similar kind of widespread movement arrayed against him, will Obama see the nationwide backlash he’s loping towards before it’s too late? 

Do conservatives want him to?

Well, that settles it.  If immigration-friendly Mexico supports invalidating Arizona’s illegal immigration law, then I guess the debate is over.

This can’t come as good news to the Obama Administration.  It’s bad enough that “only” an overwhelming majority of Americans support Arizona’s SB 1070.  Now, the biggest cheerleader for Attorney General Holder’s lawsuit comes from the government whose inability to police the drug cartels or provide a stable economic environment for its citizens helps drive illegal immigrants north.

I wonder how long it will be before the president sends his buddy Felipe Calderon a note saying “No gracias, amigo.”

Rising conservative Kris Kobach lays out a succinct analysis that puts to rest any notion that the Obama Administration has any legal justification for suing Arizona over its tough new illegal immigration law, and concluding with the only plausible explanation:

But even if one were to imagine that the Obama administration had a strong legal argument, there would be yet another reason not to file the lawsuit: It is completely unnecessary. Five suits have already been filed by the ACLU and their fellow travelers. The issue is already teed up for the federal courts to decide. The administration achieves nothing by launching its own litigation. Except, of course, for rallying the Democrats’ open-borders base before the 2010 elections.

In a previous part of his National Review Online entry Kobach shows that every federal appeals court who’s considered the issue “support the authority of Arizona to enact its law.”  Since the lawsuits arrayed against SB 1070 are almost guaranteed to fail, it will be interesting to see how many open-borders supporters will convince themselves that the Administration’s ploy is worth the bother.

In this week’s Freedom Minute, CFIF’s Renee Giachino discusses the temper tantrum being thrown by the City of Los Angeles over Arizona’s new immigration law and the idea of taking border security seriously.

With apologies to Texas, Don’t Mess with Arizona!  One of the state’s utilities commissioners sent an open letter to the Mayor of Los Angeles in response to the City Council’s resolution to boycott Arizona businesses in order to, as the mayor said, “send a message” that L.A. officials disapprove of Arizona’s tough new illegal immigration law. (pdf)

Commissioner Gary Pierce’s letter is short and powerful. (pdf)  My favorite excerpt:

“I received your message; please receive mine.  As a state-wide elected member of the Arizona Corporation Commission overseeing Arizona’s electric and water utilities, I too am keenly aware of the ‘resources and ties’ we share with the City of Los Angeles.  In fact, approximately twenty-five percent of the electricity consumed in Los Angeles is generated by power plants in Arizona.

If an economic boycott is truly what you desire, I will be happy to encourage Arizona utilities to renegotiate your power agreements so Los Angeles no longer receives any power from Arizona-based generation.  I am confident that Arizona’s utilities would be happy to take these electrons off your hands.  If, however, you find that the City Council lacks the strength of its convictions to turn off the lights in Los Angeles and boycott Arizona power, please reconsider the wisdom of attempting to harm Arizona’s economy.”

Like the well-heeled college students protesting capitalism on spring break, it’s time for Los Angeles officials to put their principles where their sanctimonious mouths are.  We’ll see who backs down first.

Below is one of the latest cartoons from Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

He is if he’s guilty of pre-judging the constitutionality and effect of Arizona’s new immigration law, Senate Bill 1070, before even reading it.  When asked at a House Judiciary Committee hearing whether he’d read the law he’s criticized repeatedly, the U.S. Attorney General responded, “I have not had a chance to – I’ve glanced at it.”

Granted, reading 17 pages of legislation is a bit dry; so if the AG is looking for a Cliff Notes summary moved along by some punchy writing, I humbly suggest this piece.

H/T: Fox News

Below is one of the latest cartoons from Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

Sports and politics have once again collided.  Responding to a protest of sorts by the NBA’s Phoenix Suns, Arizona Governor Jan Brewer penned a special to ESPN.com disputing misinformation about SB 1070.  The governor took the unusual step because of calls for boycotting Arizona-based sports events, among other venues.

Along with a few purple prose moments with sports metaphors, Brewer lays out the hard facts about the federal government’s failure to enforce immigration laws.  In 2009, there were 316 kidnappings in Phoenix, making it the nation’s kidnapping capitol.  Today, there are approximately 6,000 prisoners in Arizona who are foreign nationals costing state taxpayers roughly $150 million a year.

Getting back to the boycott issue, Governor Brewer makes an assertion no one can reasonable disagree with:

A boycott that would actually improve border security would be to boycott illegal drugs. Dramatically less drug use and production would do wonders for the safety of all our communities.

We’ll see how that goes over.

Apparently, President Obama’s penchant for dithering is contagious.  Solicitor General and potential Supreme Court nominee Elena Kagan has failed to respond to the Court’s request for a brief describing the Administration’s view on another Arizona immigration law.  (This one fines employers for hiring illegal immigrants.)  Now that the U.S. Chamber of Commerce is fast-tracking an appeal of the Grand Canyon State’s newest attempt to enforce federal law, Kagan very likely won’t be able to ignore taking a side.

Surprisingly, though, the former Dean of Harvard Law School has written or said scarcely anything about law in her two decades as a legal academic.  From the L.A. Times Supreme Court reporter David Savage:

She does not have a record as a judge or legal advocate, and she did not write widely on legal topics, potentially making it difficult for Republicans to oppose her if she is nominated.

Shouldn’t such a statement knock her out of contention?

So far, all we know about Kagan is that she has establishment Ivy League credentials, holds fashionable elite positions, knows the right people, and is a member of a favored Democratic minority group.  Apart from a vague reputation as a “consensus builder” at Harvard, she barely has a year under her belt as an appellate advocate.  Isn’t it a little early to promote her?

C’mon; it’s not like she’s running for President of the United States – this is important!

But if you want a flavor of some immigration laws that are, check out this list put together by Foreign Policy.  In Italy illegal immigrants can get up to 6 months in jail.  Japan offers to pay Latin American immigrants of Japanese descent to go home.  And if a referendum passes later this year, Switzerland could start deporting entire families.  Suddenly, being asked for ID doesn’t sound so bad.

What is it with Barack Obama and his habitual slurs against police, anyway?

Speaking about Arizona’s new immigration law during one of his “perpetual campaign” rallies in Iowa, Obama employed his usual caricature of Gestapo-like American police officers:

You can imagine if you’re a Hispanic American in Arizona, your great-great-grandparents may have been there before Arizona was even a state.  But now, suddenly, if you don’t have your papers and you took your kid out to get ice cream, you’re going to be harassed.  That’s something that could potentially happen.”

“You’re going to be harassed?”

Well, if you’re living in Community Organizer-in-Chief Obama’s world, anyway.  Recall that he descended into the same anti-police slander when he accused Cambridge, Massachusetts police of acting “stupidly” during the Officer Crowley-Professor Gates incident.  It turned out, of course, that Officer Crowley behaved professionally, just as almost all of our nation’s officers do on a daily basis.

Well, at least we know now that Obama was paying attention during Reverend Jeremiah “G-d Damn America” Wright’s sermons.

Pulitzer Prize-winning cartoonist Michael Ramirez on the Arizona immigration enforcement law.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

Perhaps U.S. Representative Raúl Grijalva (D-AZ) should have checked with his constituents before publicly announcing his intention to inflict economic hardship on his own state in response to the immigration enforcement bill recently passed by the Arizona legislature.

According to Rasmussen Reports, “70% of likely voters in Arizona approve of the legislation, while just 23% oppose it.” 

On the issue of amnesty for illegal aliens, for which Grijalva is a strong proponent, “73% of voters in Arizona now say gaining control of the border is more important than legalizing the status of these undocumented workers.” And, “[e]ighty-three percent (83%) of Arizona voters say a candidate’s position on immigration is an important factor in how they will vote, including 51% who say it’s very important.”