{"id":6335,"date":"2010-07-30T18:11:55","date_gmt":"2010-07-30T22:11:55","guid":{"rendered":"http:\/\/cfif.org\/v\/freedom_line_blog\/?p=6335"},"modified":"2010-07-30T18:11:55","modified_gmt":"2010-07-30T22:11:55","slug":"nro-debates-the-politics-and-law-of-arizona%e2%80%99s-illegal-immigration-statute","status":"publish","type":"post","link":"https:\/\/cfif.org\/v\/freedom_line_blog\/6335\/nro-debates-the-politics-and-law-of-arizona%e2%80%99s-illegal-immigration-statute\/","title":{"rendered":"NRO Debates the Politics and Law of Arizona\u2019s Illegal Immigration Statute"},"content":{"rendered":"

National Review Online\u2019s Andrew McCarthy pens one of the best explanations I\u2019ve seen refuting the Obama Administration\u2019s argument<\/a> that Arizona\u2019s SB 1070 is preempted by federal law.\u00a0 A bit surprisingly, McCarthy\u2019s column is in response to (and a bit in contention with) his colleague Heather McDonald.<\/p>\n

McDonald wrote a column earlier today fretting about the hypothetical \u201cpreemption\u201d consequences<\/a> of an Arizona law enforcement official deciding to prosecute an illegal alien under SB 1070 after federal officials declined to prosecute under federal law.\u00a0 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.<\/p>\n

Though their actions may be in conflict, argues McCarthy, that doesn\u2019t mean the laws are in conflict.\u00a0 The distinction is crucial, but too often glossed over by pundits.<\/p>\n

In a nutshell, the legislative branch makes a law and the executive branch has the discretion whether and how to enforce it.\u00a0 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.\u00a0 (That\u2019s why they can plea bargain cases and drop charges.)<\/p>\n

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<\/em> conflict; only a different policy choice by each layer.<\/p>\n

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.\u00a0 In fact, they are identical.\u00a0 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

National Review Online\u2019s Andrew McCarthy pens one of the best explanations I\u2019ve seen refuting the Obama Administration\u2019s argument that Arizona\u2019s SB 1070 is preempted by federal law.\u00a0 A bit surprisingly, McCarthy\u2019s column is in response to (and a bit in contention with) his colleague Heather McDonald. McDonald wrote a column earlier today fretting about the […]<\/p>\n","protected":false},"author":9,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[1627,846,144,1453,1626,514,1628,1452],"class_list":["post-6335","post","type-post","status-publish","format-standard","hentry","category-posts","tag-andrew-mccarthy","tag-arizona","tag-constitution","tag-department-of-justice","tag-heather-mcdonald","tag-illegal-immigration","tag-preemption","tag-sb-1070"],"_links":{"self":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/6335","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/users\/9"}],"replies":[{"embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/comments?post=6335"}],"version-history":[{"count":3,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/6335\/revisions"}],"predecessor-version":[{"id":6338,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/posts\/6335\/revisions\/6338"}],"wp:attachment":[{"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/media?parent=6335"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/categories?post=6335"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cfif.org\/v\/freedom_line_blog\/wp-json\/wp\/v2\/tags?post=6335"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}