National Review Engages in Poppycockery

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Andrew McCarthy, of the National Review, wrote in his article “Illegal Aliens: Law and Sovereignty in Arizona” that:

“The law[SB1070] is clearly constitutional.” because, in part,  “Arizona is a sovereign state. Its citizens have a natural right to defend themselves, particularly when the federal government surrenders. The state’s new law does precisely that, in a measured way that comes nowhere close to invoking the necessary, draconian powers Leviathan has but refuses to use.”

By any reasonable standards, SB1070 is not clearly constitutional. Here are some attorneys/legal experts’ opinions that contradict McCarthy’s absolute confidence:

Fox News’ Judge Napolitano:

“This will be a disaster for Arizona — to say nothing of the fact that it’s so unconstitutional that I predict a federal judge will prevent Arizona from enforcing it as soon as they attempt to do so. That will probably be tomorrow.”

Law Professors Erwin Chemerinsky and Karl Manheim were asked by the Wall Street Journal if the law was constitutional:

“The Arizona law appears to be “facially unconstitutional,” Manheim said. “States have no power to pass immigration laws because it’s an attribute of foreign affairs. Just as states can’t have their own foreign policies or enter into treaties, they can’t have their own immigration laws either.””

Yale Law Professor Jack Balkin wrote:

“There is a much stronger argument [than was available in De Canas] that the new Arizona law, while purporting to be helpful, actually sticks a thumb in the eye of the federal government by engaging in draconian measures. The Arizona legislature appears to be saying, in effect: “since you won’t police the borders, we will, and if you don’t like it, pass some new legislation.” If this is the point of the new Arizona law, then the law isn’t really an attempt at cooperation but an attempt at provocation and one-upmanship, and the chances that it is preempted increase.”

There are many more attorneys, pundits, etc. who have made solid arguments as to the unconstitutionality of SB1070. For in-depth analysis, the ACLU in Arizona wrote out a step-by-step analysis of SB1070, concluding that many of its provisions are likely unconstitutional.

From my personal analysis of the law and what I have read on it, it is likely that many provisions of SB1070 are unconstitutional. McCarthy, however, concludes–without citing to any Supreme Court cases–that SB1070 is clearly constitutional. Vague opinions based on personal political beliefs(it appears this guy absolutely despises Obama because he harps on for over half of his column about the health care bill although the constitutionality of SB1070 has nothing to do with the health care bill.) are fine but to make such an unequivocal conclusion without anything backing it up is negligence at best. And he didn’t back it up because by not citing to relevant Supreme Court jurisprudence, his conclusion on the constitutionality of a law is hollow. Last time I checked, SCOTUS is the official interpreter of the Constitution.

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15 Responses to “National Review Engages in Poppycockery”

  1. Liquid Reigns Says:

    http://www.politifact.com/truth-o-meter/statements/2010/apr/28/alfredo-gutierrez/arizona-immigration-law-allows-police-question-any/

    Gutierrez’ statement — that the law “says that any police officer can stop anyone who appears to them to be reasonably suspicious of being an undocumented person” — is fairly accurate, but not entirely. While the law does appear to provide significant latitude for law enforcement officers in Arizona to question people about their immigration status — on a pretext as basic as a broken tail light — the law also says the grounds cannot be based on race or ethnicity alone. This is a somewhat more narrow standard than Gutierrez indicated, so we will downgrade his comment to Mostly True.

    And a Law Professor here:
    http://jonathanturley.org/2010/04/28/report-justice-department-moving-to-challenge-arizona-law/

    An early challenge by the Justice Department would indicate that it is not going to wait to create an “as applied” challenge based on actual enforcement. That would make it more likely that the challenge would be based on preemption. That would be a tough challenge in my view. I do not see in the legislative history or language any congressional intent to preempt state laws to block concurrent jurisdiction. That would leave an implied preemption argument under the Supremacy Clause of Article VI.

    lyer v. Doe, 457 U.S. 202, 228 (1982),

    “Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.”

    • bjohns15 Says:

      I saw that article on politifact–did you notice that gutierrez’s opponent was ranked as false? Have you also noticed that the bill’s main backer–russel pearce–is flat-out crazy? If you haven’t seen him speak, you should.

      Also, Turley’s argument is not that it is clearly constitutional. I will give you this much: since SB1070 is so unprecedented in its scope, the need to legally analyze it in depth will be required.

      One thing that stood out to me are the consequences if U.S.C. 1304(e) is extensively prosecuted on the state level. I tried looking for how much this section has been prosecuted by the Feds, but found nothing definitive. Clearly, though, ICE probably does not prosecute actual LPRs much simply for not carrying ID.

      On the full-out state level, the implications could be much different. Thus the concurrent jurisdiction would appear to be undermined.

      Either way, McCarthy’ conclusion is not supported by anything but anti-obama animus and a non-case specific opinion of what the Constitution is.

      • Liquid Reigns Says:

        Either way, McCarthy’ conclusion is not supported by anything but anti-obama animus and a non-case specific opinion of what the Constitution is.

        This seems to only be your mere opinion of what you think McCarthy’s statements mean. He’s using Obama’s words and their meanings to make a point. I don’t agree with him, or you.

      • bjohns15 Says:

        McCarthy was not interested in actually analyzing the AZ law; it appears his whole point was to just attack Obama.

      • Liquid Reigns Says:

        This is about the only thing I think we agree upon, but again not completely, since there are numerous precedented cases already out there. I have given you the links to some of them already:

        since SB1070 is so unprecedented in its scope, the need to legally analyze it in depth will be required.

      • bjohns15 Says:

        You should read the Hazleton and Farmer’s branch cases.

      • Liquid Reigns Says:

        You should read the Hazleton (sic) and Farmer’s branch cases.

        I have and agree to an extent with the rulings, it is not the responsibility of City and County officials nor that of Citizens to determine who is legal and who is not. Neither of your examples refer to the ability of the police to question and determine through questioning to proceed further into a persons legality.

      • bjohns15 Says:

        Ok, here’s a concrete example of how the AZ law could run afoul of fed. imm. law.

        Many individuals who are eligible for political asylum, but who have not yet applied, will not be carrying around alien registration cards. In fact, these same people will probably be “ruled” to be unlawfully present in the United States through a status check. Keep in mind that the asylum process can take years to be finalized.

        Obviously, if ICE detained a potential asylee, they would be put immediately into removal proceedings, where the potential asylee can plead asylum as a defense to removal. In this situation, the Federal government is highly unlikely to charge the asylee with any type of criminal offense.

        However, under AZ law, the State may bring criminal charges for this potential asylee without the latter having gone through the extensive asylum-application process. (if AZ really wants to modify the law to shore-up its constitutionality, it should eliminate the “trespassing” offense, and just align itself like a 287g program, agreed?)

        In other words, in many situations where on the surface the “illegal” seems to just be “illegal” their presence may turn out to be authorized after all.

      • bjohns15 Says:

        Correction: immigration-related criminal offense that does not involve fraudulent intent.

      • Liquid Reigns Says:

        Many individuals who are eligible for political asylum, but who have not yet applied, will not be carrying around alien registration cards.

        I would argue it is there own fault for failing to apply to begin with. If they are here they need to be made aware of their own situation, they must take the initiative and find out. Again, I see it as personal responsibility. If they are arrested and in ICE they find out they can apply for asylum, then let them do so from their.

        The rest of your comment I would mostly agree with.

      • bjohns15 Says:

        “I would argue it is there own fault for failing to apply to begin with.”

        As a preface, I participated in the political asylum clinic at my law school, and both of my clients faced the one year filing deadline provision, which is what your statement reflects.

        However, there are exceptions to the filing deadline, for “extraordinary circumstances” or “changed circumstances”. I won’t go into the detail, but suffice it to say that it is a common dilemma for asylees because of what many of them have suffered–persecution. So the current federal law addressed your concerns, but also has exceptions because personal responsibility is hard to impose upon individuals who have suffered persecution.

        I can foresee some abuse in this department as it relates to AZ’s enforcement of it.

  2. Tweets that mention National Review Engages in Poppycockery « Life Through the Lens of Bryan -- Topsy.com Says:

    […] This post was mentioned on Twitter by voz latina, Bryan Johnson. Bryan Johnson said: The supporters of SB1070 dig their heads into the sand: http://bit.ly/duHS83 #immigration #nationalreview #SB1070 #legalizeAZ […]

  3. Liquid Reigns Says:

    I saw that article on politifact–did you notice that gutierrez’s opponent was ranked as false?

    Yes, I read the other articles politifact wrote. The Guiterrez article was only labeled as mostly true due to the fact hat his citation of the wording of the law was correct, not the fact that his interpretation of the written phrases meaning, which is what is found to be incorrect.

    As for the false allegation of Huppenthall in the other article, it claims against Huppenthall what it says in Guiterrez: While the law does appear to provide significant latitude for law enforcement officers in Arizona to question people about their immigration status — on a pretext as basic as a broken tail light — the law also says the grounds cannot be based on race or ethnicity alone.

    I see it as a double standard, where in fact Huppenthall’s claim is also mostly accurate as Guiterrez statement of the phrase is, but not his interpretation.

    George Wills statements are also found to be mostly true.
    http://www.politifact.com/truth-o-meter/statements/2010/apr/28/george-will/will-says-arizona-law-merely-echoes-federal-immigr/

    The AZ Congress has already made some changes to SB 1070 through HB 2162, mostly wording changes.

  4. Funny Guy Says:

    As an Arizona resident, I am really getting tired of being portrayed as a racist because I am in favor of SB1070. I hope this legislation leads to reform on the current immigration laws. It’s a travesty that more illegals aren’t even given an option to enter the country legally. However this law isn’t going to “legalize profiling.” The law is going to require officers to obtain proof of citizenship only in situations where a crime has taken place.

  5. bjohns15 Says:

    Funny Guy,

    You wrote: “It’s a travesty that more illegals aren’t even given an option to enter the country legally.” I agree, but if you ask the brains behind SB1070–groups like FAIR–you will find that they do not think it a travesty at all. In fact, FAIR advocates cutting down on the current level of legal immigration, which does nothing to address “illegal” immigration. In fact, their position may lead to even more volume of illegal immigration.

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