Freedom Line Blog

Politico reports that Arizona Republican Governor Jan Brewer has formally petitioned the United States Supreme Court to overturn the 9^th Circuit’s opinion that important parts of the state’s tough immigration law (SB 1070) violate the U.S. Constitution.

Brewer said in May that she was “frustrated” by the court’s ruling and planned to appeal it.

“The bottom line is, is that everyone knows that the 9th Circuit has a reputation of being very, very liberal,” she said. “After deliberating and thinking about it, I said, ‘Let’s just go to the Supreme Court.’”

As usual, the outcome will probably hinge on the moderate views of Justice Anthony Kennedy.

Heaven help us.

As a former staff member in the Texas House of Representatives, I have an interest in news that the chamber may be headed for conservative leadership.  This morning, Rep. Ken Paxton (R-McKinney) announced his bid to unseat current Speaker Joe Straus (R-San Antonio).  If successful, Paxton would be the third Republican Speaker in under three years, since Straus ascended to power by beating former Speaker (and my old boss) Tom Craddick (R-Midland) in 2009.

What does an intra-party fight in one of the reddest states in America mean for citizens outside the Lone Star State?  Plenty.

Texas is already the exemplar of low-tax, low-regulation state government.  Moreover, because the legislature only meets for 140 days every two years, Texas government has not had a chance to weigh in legislatively on issues like Arizona’s approach to illegal immigration and Virginia’s response to block implementation of ObamaCare.  With the kick-off of the legislative session next January, a more conservative Republican House majority will be able to make some big statements about the power of the 10^th Amendment in our federal system.

That is, if the House is run by a true conservative.  Stay tuned…

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.

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…

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.