Civil Liberties

Responding to More Bogus Restrictionist Arguments by Arizona's Defenders

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Over at The Corner on National Review Online, Ramesh Ponnuru raises two questions about my last immigration column in which I rebutted the bogus constitutional claims that restrictionists make to defend Arizona's harsh, new immigration law. (For convenience, let's just pick a nick-name for this law and call it the Arpaio Law in honor of the Arizona sheriff whose "law-enforcement" tactics include making a pregnant suspected undocumented alien deliver a baby in shackles.)

First Question: if, as I argued, it is unconstitutional for states to pass laws whose primary purpose is regulating immigration flows—even when these laws are patterned after federal laws—then why, asks Ramesh, did courts uphold Arizona's 2007 law sanctioning employers who hire illegal immigrants?

Answer: It is true that the 9th Circuit Court upheld that law, but the matter is now before the Supreme Court – so the issue is far from settled. However, legal scholars of varied political persuasions believe that the Supremes too are likely to uphold this law for two reasons – neither of which applies to the Arpaio Law:

One, the law requires all Arizona employers to use E-verify to check the legality of all their new workers, not just some employers or some workers. Hence, it does not run afoul of the Constitution's equal protection clause. The Arpaio Law, by contrast, empowers Arpaio and his minions to demand papers of only those who raise "reasonable suspicion." Regardless of what defenders of the law claim, this can't help but lead to racial profiling of brown-skinned, non-blue-eyed furhners (like Ramesh and myself) who speak with an accent (unlike Ramesh, but like myself) as I argued here. This is constitutionally problematico – but opponents of the Arpaio Law actually can't make that argument in court until the law goes into effect. Hence, that's not the reason that the courts will throw out this law now, although they might later if it doesn't get thrown out first for the second reason stated below.

Two, the 2007 law passed muster not because, like the Arpaio Law, it mirrored the federal government's language concerning employer sanctions in the 1986 Immigration Reform and Control Act.  The reason is that even though IRCA explicitly barred states from sanctioning employers who hire illegals – it made an exception when these laws are part of a state's general licensing regulations. Arizona used this loophole and made E-verify a general licensing requirement, thereby making it legally clean – although as a policy it still stinks to high heaven because it forces Arizonians to get a permission slip from the government for employment.

There are no similar loopholes that the Arpaio Law can use to cover its derriere. The very existence of a federal law requiring immigrants to carry their papers implicitly serves notice to states that they have no business passing their own laws because immigration is a constitutionally protected federal function. This, I am told by legal scholars of varied political persuasion, is a near slam-dunk legal objection. (Law junkies who want to look up the legal doctrine under which this objection falls can Google "implicit field pre-emption." Everyone else, read on.)

But the real kicker is this: Ramesh and his NRO comrades insist that the Arpaio Law's your-papers-please provision is totally innocuous because all it does is enforce Uncle Sam's own law – nothing more, nothing less.

Bzzzzz. Incorrect.

Actually, it goes beyond the federal law, which only authorizes federal officials to check someone's papers when there is a reasonable suspicion that the person might be in the country illegally. But the Arizona law requires state authorities to do so – or risk getting sued by private third parties. There is no such right to sue in the federal law. And the gulf between "authorizing" and "requiring" is as big as the distance between Tucson and Juarez.

That's because "authorizing" leaves discretion for enforcing the law to individual officers. Say, for instance, that a police officer is chasing a violent criminal who is trying to get away after robbing an old lady and shooting her Chihuahua when he spots Jose, a poor Spanish-speaking, Hispanic male jaywalking en route to his landscaping job. Under the federal law, the officer wouldn't have to stop to check Jose's papers because he has a "reasonable suspicion" that Jose is illegal. He can continue to pursue the homegrown thug who poses a far more imminent danger without fearing a lawsuit.

Granted, this is an implausible, facetious scenario. But the point is that the federal law allows both state and federal officials to set their own law enforcement priorities depending on the facts on the ground. The Arpaio Law has the express purpose of taking that ability away from both. It will not only force state law enforcement officials to apprehend illegals on the slightest pretext, but then it will dump them in the feds' lap for deportation, forcing the feds too to divert resources from other priorities like, say, fighting terrorism. It is highly unlikely that courts will let Arizona get away with this kind of bullying of Uncle Sam. (Assignment Number Two for legal junkies: Google "conflict pre-emption" to check out the legal doctrine under which this objection would be covered. And for a fuller and more erudite elaboration of all of these points and more, check out, "Testing the Limits: A Framework for Assessing the Legality of State and Local Immigration Measures," by Muzaffar Chishti, Director of NYU Law School's Migration Policy Institute.)

Second Question: I wrote in my column that the opening sentence of the Arpaio Law says: "The intent of this act is to make attrition [of the immigrant population] through enforcement the public policy of all state and local government agencies in Arizona." To this, Ramesh asks:

"(I)sn't there a word missing in that 'drive out immigrants' bit? Starts with an 'I'. …"

Answer: Ha, ha. Very clever. I'll take a wild guess and say that the word Ramesh has in mind here is "illegal." But, no, it is not missing. I deliberately left it out. And the reason is that the Arpaio Law will cause the attrition of both the legal and illegal population alike because the racial profiling it unleashes will open both up to Arpaio-style harassment. What's more, many legal immigrants and even naturalized citizens in the Latino community are related to undocumented workers – they are their mothers, daughters, fathers, sons, aunts, uncles, cousins, some of whom are undocumented because the feds have not been able to process their visa extensions in time. Many of the legals will find it hard to stick around if their loved ones are hounded out.

Of course, the loss of legals won't bother Ramesh's ultra-restrictionist National Review comrade and director of the Center for Immigration Studies, Mark Krikorian, who wants a moratorium on all immigration and blames immigrants for every problem in America – including raising global greenhouse gas emissions. Indeed, if Krikorian had his way, Ramesh, a first-generation immigrant, wouldn't even be here today.

Surely, this should bother Ramesh enough to direct a few pointed questions toward Krikorian too.

(My bloggingheads.tv showdown with Krikorian here.)

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  1. I thought we were in total agreement that there would be no linking to NR’s Corner.

    1. What’s this we shit?

    2. Fuck Off troll!

  2. Good luck with this “Arpaio Law” thing. I’m sure it’ll catch on. Lefties love dumb slogans.

    1. Spoken like a true super-ultra-restrictionist.

    2. At the very least, it does nothing to promote good persuasive technique, apart from preaching to the choir. Just because you don’t like Arpaio doesn’t mean that slapping something with his name demonstrates that it is, ipso facto, bad.

      While being glib works well in collegial discourse or one-sided opinion commentary, it doesn’t really do well as a debating point. If anything, it costs points.

  3. Wasn’t this law already dubbed “Juan Crow”? Or “El Solucion Final”? Or “Noches de Cristal”?

  4. I really have to say that the vehemence and stridency of the “they’re ILLEGAL” crowd just screams other issues. I’m not saying it’s always racism–though that’s definitely present in some–but man, you can smell the other psychological factors cooking under the lid.

    I mean, really–why the fuck do some people just care so very much that some dude sneaked through the desert to get a landscaping job? Because he parks on his lawn? Because he and 7 of his buddies live in the same tiny house? Because he likes tacos and burritos? Because he wears WAY too much cologne?

    1. Yeah, really. What’s up with the all that cologne?

      1. I literally have no idea. It’s pretty brutal, though.

        1. Um, while they’re doing your lawn for $3 an hour, they’re working up a sweat? Just a guess.

    2. Epi
      Let me try to give you an honest answer, knowing that not everyone who opposes immigration has one. Some people just focus on the jobs issue, they know they are not willing to work at the wages many immigrants are and know that this means immigrant’s prescense will put pressure on them to work for less. Some worry about the overall effect on our polity and culture: for example look at the Islamic shit going on in Scandinavian nations. Were it not for immigration that shit would’nt be happening. Some people worry that something like that will happen here.

      1. Sure, but those concerns are retarded. With the wage thing, the immigrants mostly do shit that natives don’t want to do at the wages that employers are willing to pay. The immigrants occupy a space similar to teenagers in regards to the work they do, except they do adult work.

        And the culture thing is doubly retarded; we’ve been experiencing waves of immigration for the entire existence of this country. Fuck, everyone loves The Godfather now, and us damn wops were initially hated as papists and eurotrash scum. Now, I’m not saying that the folks on Jersey Shore aren’t scum–just realize that.

        1. Are you suggesting that papists aren’t scum, you greasy pizza-tosser?

        2. With the wage thing, the immigrants mostly do shit that natives don’t want to do at the wages that employers are willing to pay.

          …especially when the wage that employers are willing to pay is below minimum wage.

          The immigrants occupy a space similar to teenagers in regards to the work they do, except they do adult work.

          …and employers know they won’t get in trouble for paying them less than minimum wage.

          Now, I’d be all for repealing minimum wage laws as a solution to this concern. Maybe you should bring that possibility up with your open borders friends on the left at the next cocktail party.

          1. That’s it, basically….

          2. “…especially when the wage that employers are willing to pay is below minimum wage.”

            [citation needed]

            All the illegals I’ve ever met made well above the minimum wage. Day labors picked up in front of a Home Depot generally make around $10 an hour… at least here in AZ where I live.

        3. immigrants mostly do shit that natives don’t want to do at the wages that employers are willing to pay

          Gee, we wouldn’t want anything that might cause wages for low-wage jobs to increase, huh?

          we’ve been experiencing waves of immigration for the entire existence of this country

          But not so many from one* poor non-English-speaking culture, when the establishment is in the grip of multicultural mania, and when we have a welfare state that’s going broke. (*Yeah, all Hispanic cultures aren’t the same, but the illegal immigration is mostly Mexican.)

          To address your original post: nobody’s upset over “some dude” getting a landscaping job. They’re upset when tens of millions do it, including gangsters and other undesirables. They hate “pressing 1 for English.” (Though “pressing 1 for Spanish” is OK: see the difference?) They don’t want their country to turn into some semi-socialist hellhole like pretty much every other Latin country.

          1. Where’s that “pink cosmotarian” when his complaint is appropriate?

    3. I have a mother who lives in Arizona and supports this fucking law.

      Her problem with immigrants is that they tend to vote for Democrats. Simple as that. If the majority voted for Republicans, she’d be OK with them.

      1. “A” mother? Where do your other mothers live?

        I haven’t bothered to check if my great-aunt and uncle who live in AZ support it. There’s actually a good possibility that they don’t.

      2. Er, if they’re illegal immigrants, they shouldn’t be voting at all, right?

    4. “Some dude” doing is is not a problem. Tens of millions of dudes and dudettes doing it is.

      It’s also, you now, illegal. I realize you lefty fuckwits don’t care about such details, at least as long as the law-breaking in question assists your own political goals, but the American people think you’re full of shit.

  5. brown-skinned, non-blue-eyed furhners (like Ramesh and myself) who speak with an accent (unlike Ramesh, but like myself)

    That’s it, Shikha. Get yer ass back to Eurasia!

  6. Shihka give it up, seriously! You’re beating a dead horse and milking the tits on the illegal immigration issue dry. You are becoming that “screeching secretary”. Instead of sitting at a desk bitching about it, go to Arizona and do something about it.

    1. honestly the idea that one person can change a law or policy with the huge leviathan government(whether it be state, or federal) is laughable

  7. I’m sympathetic to arguments that illegal immigrants shouldn’t be jumping on the government teat or simply amnestied in (kinda unfair to the people going through the legal process), but this “evil alien” crap is a bit much.

    1. You don’t see many movies do ya? They’re all evil. Even Starman was a gigantic pain in the ass.

      1. Yeah, he got Jenny pregnant even though she was barren! You’d think that would be the ultimate in birth control, but noooooooo…and then he leaves and becomes a total deadbeat dad. A single silver sphere? That’s all he contributes?

        1. And a contract on a derivative TV series, don’t forget that.

          1. Holy shit, I had completely forgotten about the TV series. Wow. You have impressed me today, ProL.

            1. Strangely, I don’t know how I knew that.

            2. You know, speaking of a series based on a “Star Child”, I think it’s time for a series about the Star-Child from 2001. Maybe a sitcom?

              1. He’s, no, SHE’s all growed up and livin in LA!

                1. They could do it like The Odd Couple, with Star-Child and a revived Frank Poole living as roommates in Central Florida. With a HAL 9000 as their landlord or something like that.

                  1. Maybe the Lost in Space robot as the crazy neighbor?

                    1. What? No, no, no, never cross the genres. Crossing the genres is bad.

              2. I’ll pass, but something based on “Starman” from Ziggy Stardust and starring the Thin White Duke would be pretty cool.

                1. I don’t think Iman would allow that.

                  1. What can she say? She was in Star Trek VI with Shatner, after all.

                    1. I bet Davie is jealous of that to this day, asking Iman whether she has the hots for the Shat.

                    2. What was her immigration status?

                    3. Of course Shatner’s a fooking Canadian. Good thing he stayed outta Arizona.

          2. Wait, Starman had a TV show (furiously checks IMDB and Amazon)? Holy crap, there was! How the hell did I miss this? Awesome. I’m buying it now!

            1. NOOOO! Stop, you fool! It was terrible! It had Robert Hays from Airplane as the star!

              1. Yes, Episiarch speaks quite wisely. Heed his warning!

                1. Epi knows his pop culture, follow his advice dude.

                  1. Does Starman the TV series constitute “pop culture?” Discuss.

                    1. Yes, it constitutes pop culture, you cretin. It had 7 people watching it, including the two of us, so that’s just over the “must have 5 people that know about it” rule.

                    2. Is this the time to tell you that I never watched the show?

            2. If Hell exists, that’s one of the shows on their system.

              1. And this is its thread.

    2. ET with his light up finger. Oh, the kids lit him up in more ways than one. Once the government caught on though, asta la vista babies.

      1. And no, you don’t get a ride in the saucer.

  8. I think the Constitution is pretty clear that both the States and the Feds have authority to regulate immigration.

    But the point is that the federal law allows both state and federal officials to set their own law enforcement priorities depending on the facts on the ground.

    Which is all fine, but raises no constitutional issues that I can see.

    It is highly unlikely that courts will let Arizona get away with this kind of bullying of Uncle Sam.

    So the argument is that its unconstitutional for a state to refer an illegal immigrant to the feds? Color me skeptical. Or is the argument that the states can refer illegals, as long as they don’t refer too many? Color me even skepticaler.

    Conflict pre-emption? Unlikely. Conflict pre-emption refers to preemption of state laws that conflict with federal laws. A state law conflicts with federal law when it requires law enforcement to do something federal law forbids (not the case here). A state law does not conflict with federal law when it requires the law enforcement to do something that federal law is silent on or gives discretion on.

    An example: Federal law says that states may conduct surveys of licensed hospitals. State law makes those surveys mandatory. Is the state law unconstitutional. No frickin’ way.

    Still skeptical.

  9. But the real kicker is this: Ramesh and his NRO comrades insist that the Arpaio Law’s your-papers-please provision is totally innocuous because all it does is enforce Uncle Sam’s own law ? nothing more, nothing less.

    Since many of the law’s defenders are claiming that they are merely enforcing federal law, wouldn’t the law have to specify which of Arizona’s borders someone is suspected of having crossed? More specifically, wouldn’t a law officer be required to prove beyond reasonable doubt that someone actually came into Arizona directly from Mexico instead of from any of the United States surrounding it? It would seem to me that anyone without proper legal status in Arizona could have just as easily arrived there from, say, Texas. Can anyone tell me whose jurisdiction this would fall under? I know this probably sounds stupid to those of you that are far better versed in legalese than I am, but I’m genuinely wondering.

    1. You’re looking at this the wrong way. While crossing a border illegally may break a law, the laws we’re talking about are about being in Arizona illegally. It doesn’t matter which direction they came from, or whether the illegality has to do with crossing a border or having a visa expire.

      1. I don’t really know how I’m supposed to be looking at this, really. It just seems that If a state is to take it upon themselves to prosecute federal offenses, those offenses should at least have been committed in that state. For example, if Arizona law enforcement catches someone that’s in the country illegally but that person actually entered the state through Texas, then it would seem logical that person be extradited back to Texas for prosecution according to whatever Texas’ statutes regarding enforcement of Federal laws are.

        1. But the issue for Arizona law enforcement has to do with the illegality happening in Arizona. Anything that happened in Texas is a separate issue.

        2. if Arizona law enforcement catches someone that’s in the country illegally but that person actually entered the state through Texas, then it would seem logical that person be extradited back to Texas for prosecution

          No, if Arizona law enforcement catches someone who is in the country illegally, regardless of how they reached Arizona, the appropriate action is to turn them over to the Feds. And that’s just what the Arizona laws does.

          BTW, illegal immigrants are almost never prosecuted by either state or federal authorities. It’s one reason we have this problem. Instead they are kicked back across the border, which they can recross whenever they feel like it.

  10. Ramesh’s ultra-restrictionist National Review comrade and director of the Center for Immigration Studies, Mark Krikorian, who wants a moratorium on all immgration and blames immigrants for every problem in America

    Hyperbole much?

    1. Not really. Krikorian almost never talks publicly about anything other than too much immigration.

      1. Release the Krikorian!

      2. That’s not really the point, though. Yeah, that seems to be his area, and so of course when he’s invited to speak somewhere, that’s what they want him to talk about. But that’s not the same as “blaming immigrants for every problem.”

  11. First of all, I lay block, don’t like landscaping. Secondly, I wouldn’t dream of J-walking. Have a little respect for the law, Senor Welch!

    1. JUST SO LONG AS YOU DON’T LAY PIPE, SE?OR WENCES.

  12. I’ll say this about that AZ immigration law: damn, Shikha is even hotter when she is pissed and feisty!

    Makes me all excited about the cruise. Just got my new bright orange banana hammock.

    1. She’ll know who to avoid.

  13. So the argument is that its unconstitutional for a state to refer an illegal immigrant to the feds?

    Actually, as far as I know it is perfrctly legal, and perhaps even required, that state and local law enforcement report all aliens to ICE regardless of immigration status. And depending on the alien’s country of origin they are required to contact the alien’s consulate so that the Consul General can give any assistance in arranging representation etc.

    So, I can’t say if Arizona’s law passes any constitutional sniff test, but I am certain that it stinks to high heaven in terms of the kinds of the abuse potential it hands to the likes of Joe Arpaio and any other pig who thinks like him.

    1. First sentence correction:

      “…that state and local law enforcement report all aliens [they arrest for state or local offenses] to ICE regardless of immigration status.”

  14. Now that everybody is jumping on the bandwagon in boycotting my state,is Los Angeles going to boycott the State of California? Please scroll down to 834b

    1. The link died. Click HERE
      Check the box that says Penal Code and search for 834b

  15. It’s an invasion, not just illegal immigration. Hardly any of the old school immigrants from Europe considered themselves the vanguard of an invasion to re-conquer lands lost in war or sold off over a 100 years ago. The official national symbol of MEChA is an eagle holding a macuahuitl (machete-like weapon) and a stick of dynamite.

    The MOST important duty of the federal government is to prevent invasion and it is failing miserably. Bring the troops home from Korea, Japan and Germany. Have them protect the borders of the USA!

    1. Oh, the idiots really come out on these threads. I wasn’t aware that the dude mowing the lawn is a hugely politically active MEChA or Aztlan supporter.

      1. The guy who mows your lawn can stay. But can we kick this asshole and all the others like him out? Can we make La Raza no longer fit for polite society? Can we close down all the hate studies programs in the colleges?

        I am all for the guy who mows your lawn staying. But I would really like to, as a condition of that, do something about all the Leftist assholes that are running around trying to turn the country into the Balkans.

        1. Brewer just signed the law to ban these classes

        2. B-I-N-G-O, in a big way there, John.

        3. I believe you can shoot leftists in most states.

        4. Thank you John, you consistently prove how thuggish and controlling some self-professed liberty lovers tend to be, i thought you should be thanked.

        5. The guy who mows your lawn can stay. But can we kick this asshole and all the others like him out?

          Violates due process. Violates First Amendment right to be a vocal arsehole (a protection John should be thankful for from time to time).

          Can we make La Raza no longer fit for polite society?

          Already happened.

      2. http://www.youtube.com/watch?v=yGqPo5ofk0s

        Forgot the link. Can we kick this asshole out?

      3. I wasn’t aware that the dude mowing the lawn is a hugely politically active MEChA or Aztlan supporter.

        I don’t find your ignorance a terribly persuasive argument.

    2. first….
      dey took yer jerbs
      den…
      dey take yer country

    3. WHUT PARTA ILLEGUL DONT YOU UNDERSTANT

    4. KenK,

      You need a life, or die, i could hardly care which. I’m sure the guys drinking across the ally after a long days work think of themselves as part of an invasion force. You do know there are loads of Mexican immigrants in Northern cities, don’t you?

      1. Um, do you think that’s some sort of counter-argument? “It’s not an invasion, KenK, they’re everywhere!”

        1. I must admit to a blind spot here. When I am confronted with racists I find it very difficult to reason with them. Intellectually I know that they are fellow humans attempting to reason, but I still view them as less than human. This is certainly a defect of mine. Please accept my forgiveness, Monsieur PapayaSF.

          1. That goes double for KenK, I should add.

          2. So would an ethnic group racist enough to name their organization “The Race” and demand everything for their race and nothing for all others seem a bit racist to you?

            1. You might want to look up the meaning of the phrase “ethnic group”. But assuming you mean an “ethnically-based group” or something similar, sure, I’d find a group like you describe racist.

              But there’s a big gap between “most illegal immigrants” and “members of racist groups”. A gap, I might add, which you seem determined to handwave past.

              1. There is no gap between “most illegal immigrants” and “law-breakers”.

                There is no gap between “La Raza” and “racist”.

      2. http://www.youtube.com/watch?v=5dgh1mrBTZw

        This Santee High School history teacher in Los Angeles has quite a record. In 2007 Gochez stood on the steps of the UCLA Campus and called for a race revolution in the United States. Besides that, he also attended public forums with his minions to rail against the “apes” in the police force who only serve the rich in “Occupied Mexico.”

        He must be a hell of a history teacher, huh?
        http://gatewaypundit.firstthin…..ico-video/

  16. I repeat my previous prediction: Reason Foundation Senior Analyst Shikha Dalmia will vote for rammin’ banana man Barak Obama in 2012. And she’ll be grinnin’ when she does!

    1. “rammin’ banana man”? WTF?

      1. Seconded.

      2. Whatever it means, it’s the first thing Vanneman’s said in months that didn’t make me want to strangle him. VANNEMAN DELENDA EST

      3. I think he meant to say “plantain”. Otherwise I agree that it makes no sense.

    2. Why?

  17. Where does this leave us folks who want to see immigration increased, immigration and naturalization law streamlined and simplified, and the borders controlled?

    Because, really, if your borders aren’t controlled, you don’t have an immigration policy.

    1. I have yet to see anyone that’s against this law have an answer. The radical open borders crowd don’t want the borders controlled. I’ve yet to see any of them advocate for increased LEGAL immigration

      1. They don’t have an answer. That is what infuriates me about Dalamia. She hates borders and doesn’t think the US has a right to enforce any immigration law. But, she is not honest enough or brave enough to admit it. I can respect her position as a trans nationalist. But I cannot respect her lying about it.

      2. Odd… I constantly advocate for increased LEGAL immigration.

        I would like to see a new class of visa that provides unlimited entry, exit, residence, and employment after passing a simple background check. This visa comes with an explicit denial of targeted welfare for either its holder or for its holders citizen children, and this visa does not imply any path to citizenship.

        Those who are presently illegal aliens have 24 months to get this visa and gain legal residence.

        Do you also believe that people who argue against drug laws aren’t advocating for increased LEGAL drug use as well?

      3. “I’ve yet to see any of them advocate for increased LEGAL immigration”

        Then you haven’t been paying attention.

  18. I might add that this article is long on heat, short on light. I love ya, Shikha, but you’re way off base on this one.

    1. You don’t know Shikha from Shine-ola

      1. Shikha’s the cute one.

  19. “What’s more, many legal immigrants and even naturalized citizens in the Latino community are related to undocumented workers ? they are their mothers, daughters, fathers, sons, aunts, uncles, cousins, some of whom are undocumented because the feds have not been able to process their visa extensions in time. Many of the legals will find it hard to stick around if their loved ones are hounded out.”

    So we can’t enforce our immigration laws because doing so might inconvenience legal immigrants. That is just weak.

    1. Yeah, that annoyed me, too. (Except for the visa-extension thing, which is a legit complaint.) It’s like saying you can’t kick the gangster out of public housing because it upsets his grandma.

  20. The radical open borders crowd I refer to are the ones here in Tucson

  21. After a very superficial review:

    (1) Is the law Constitutional as written? Most likely.

    (2) Will there be unconstitutional abuses in practice? Most likely. Just like every other law.

    (3) Will these abuses fall disproportionately on darker-hued people? Most certainly. Just like every other law.

    (4) Would Arpaio violate civil rights without this law? You betcha. Will he do so even more with this law in his pocket? Probably, although given his past abuses, I can’t imagine what he’s been holding back, muttering “Dammit, what I need is a law that lets me ask for papers if I have probable cause.”

    1. After a very superficial review:

      Unnecessary. We expect no less from you.

      1. Or should I have said “no more”?

      2. Perhaps you could share the results of your in-depth analysis that contradicts his superficial review.

        1. My comment was regarding the superficiality of Herr Dean’s analysis. It was not a comment on the article.

    2. i’d disagree with (3). lots of abuses fall disproportionately on whites, too. take, for example, the war on meth.

      meth is disproportionately a white person’s drug.

      i’ve been in at least two dozen labs, etc. and i’ve never even SEEN a black person in one. also, at least in WA state, i have not once found a black person in possession of meth. it’s almost always whites.

      harsh meth laws, laws against having too much ephedrine, etc. almost always affect whites.

      crack cocaine laws, otoh…

  22. Can anyone explain the differences between Arizona SB 1070 and California Penal code 834b?

    1. One is enforced, the other not?

  23. Will this law probably be abused, sure. Although, I really doubt it will result in that much more profiling than already occurs to people of color.

    But this is what happens when for decades the Feds don’t do their job.

  24. Just for funsies, here is California Penal Code 834b:

    834b. (a) Every law enforcement agency in California shall fully
    cooperate with the United States Immigration and Naturalization
    Service regarding any person who is arrested if he or she is
    suspected of being present in the United States in violation of
    federal immigration laws.
    (b) With respect to any such person who is arrested, and suspected
    of being present in the United States in violation of federal
    immigration laws, every law enforcement agency shall do the
    following:
    (1) Attempt to verify the legal status of such person as a citizen
    of the United States, an alien lawfully admitted as a permanent
    resident, an alien lawfully admitted for a temporary period of time
    or as an alien who is present in the United States in violation of
    immigration laws. The verification process may include, but shall not
    be limited to, questioning the person regarding his or her date and
    place of birth, and entry into the United States, and demanding
    documentation to indicate his or her legal status.

    As I read subsection (b) it requires (note the “shall”) CA officers to verify the immigration status of any person who is arrested and is suspected of being an illegal immigrant. The verification can include the dreaded demand for papers.

    Typically, the law is dreadfully drafted, as there does not appear to be a reference for “any such person who is arrested . . . .”

    It does sound awfully similar to the AZ law, doesn’t it?

    1. Thank you R C .
      Let Reasons California hate begin.

      1. There are lots more, and better, reasons to hate California.

        1. I should withhold judgement until the Anon Bot weighs in.

          1. Thanks for the great info RC.

            1. What the hell? How addled are all of you? Does that law require police to verify citizenship during a traffic stop?

              This kind of thing is exactly why Herr Dean is one of the worst commenters here. If you give a light read to his comments they make a kind of sense. He sounds smart. But if you take a minute to evaluate what he writes, it’s bunkum.

    2. Haven’t several cities in California proclaimed themselves to be “sanctuary cities” where the local law enforcement is directed to not enforce any immigration law?

      It looks like those cities are violating their own state law.

      1. And you expect the Attorney General in CA to do anything about it?

      2. Not to mention federal law.

      3. Where’s my sanctuary city for marijuana, cocaine, and mushroom use?!?

        1. Where is my sanctuary city for refusing to pay federal income taxes?

    3. It does sound awfully similar to the AZ law, doesn’t it?

      Well, except for that minor little bit about the Arizona law making being in the state without proper papers a state crime.

  25. Too bad Ms. Dalmia still hasn’t answered the naysayers about her article on Hummers being more environmentally friendly than Priuses.

    I’m not a lawyer, but wouldn’t Ms Dalmia’s argument imply that states can’t pass laws against anything that the feds have already banned? Considering the essentially unlimited bounds the SCOTUS has set up for federal power by its interpretation of the Commerce Clause, it’s hard to see how ANY state law can be constitutional if we accept that argument.

  26. Hmm, googling as instructed by Ms Dalmia yields the following case text re: implicit field preemption (Pacific Gas & Elec. v. Energy Resources Comm’n, 461 US 190, 203-04, 103 S Ct 1713, 75 L Ed 2d 752 (1983) ):

    Absent explicit pre-emptive language, Congress’ intent to supersede state law altogether may be found from a scheme of federal regulation* * *so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, because the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject, or because the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.

    I don’t see slam-dunk anywhere in there. Looks pretty murky to me.

  27. Shikha,

    In your prior article you describe the Arizona law as “harsh” on people. What illegal immigration law won’t ever be harsh on people? Detention and then deportation is a matter of law correct, and how can that ever not be harsh?

    1. I guess they could give you a teddy bear on the way out

      1. Maybe one of the famous Obama “Hope” posters too. 🙂

  28. I like your scenario, but it’s a little fanciful. Y’see, you need to have the cop shooting the chihuahua because he thinks the old lady has drugs, or perhaps bought too much Sudafed in a 30 day period.

  29. Not a supporter of the law and an AZ resident

    Can we lay of the “Arpaio’s Law” schtick (and I’m no fan of Arpaio)

    And while you’re at it how ’bout leaving out the too cute “comrades”

    Just argue the facts. The snark detracts from the message

  30. I love the “let them stay and mow my yard” comments, as if those jobs are not important to unskilled/uneducated or teenage Americans. And what would happen if the motivated and bright illegals and their supporters get the licensing laws changed and lawyers, doctors, and other college educated people lose their jobs to illegals that will do their 250K jobs for 100K? I can’t wait for that day lol

    1. I can’t wait for that day either, as I’ll finally be able to afford lawyers and doctors.

    2. DEY’LL TUK YER JERB

      1. No one has a right to job Warty.

        Thanks for playing though.

    3. Yes, those teenagers, lawyers, and doctors have a right to their jobs and salaries.

      Damn collectivists…

      1. Who said anything about a right to a job? I never called a job “mine” in all my working years.

        This is really a simple concept about obeying the immigration rules of this country.

        1. Immigration rules that are based, first and foremost, on raw protectionism — i.e., saying that jobs in the US belong to certain classes of people and not other classes of people.

  31. I honestly don’t care if a fellow worker is an illegal immigrant, or even in another country. As far as I’m concerned, if he/she has the skills and the qualifications to do the job, he/she has every right to have as much an oppurtunity to the job as I do.

  32. Answer [to 1st Question]: It is true that the 9th Circuit Court upheld that law, but the matter is now before the Supreme Court ? so the issue is far from settled. However, legal scholars of varied political persuasions believe that the Supremes too are likely to uphold this law for two reasons ? neither of which applies to the Arpaio Law:

    One, the law requires all Arizona employers to use E-verify to check the legality of all their new workers, not just some employers or some workers. Hence, it does not run afoul of the Constitution’s equal protection clause. The Arpaio Law, by contrast, empowers Arpaio and his minions to demand papers of only those who raise “reasonable suspicion.” Regardless of what defenders of the law claim, this can’t help but lead to racial profiling of brown-skinned, non-blue-eyed furhners (like Ramesh and myself) who speak with an accent (unlike Ramesh, but like myself) as I argued here. This is constitutionally problematico ? but opponents of the Arpaio Law actually can’t make that argument in court until the law goes into effect. Hence, that’s not the reason that the courts will throw out this law now, although they might later if it doesn’t get thrown out first for the second reason stated below.

    REBUTTAL: Well formed answer and nice touch adding that the prior case is still not settles as it helps to roved cover to the flaw in your argument.

    Case in point “..the law requires all Arizona employers to use E-verify to check the legality of all their new workers, not just some employers or some workers. Hence, it does not run afoul of the Constitution’s equal protection clause. The Arpaio Law, by contrast, empowers Arpaio and his minions to demand papers of only those who raise “reasonable suspicion.” ~Ramesh

    The problem with this argument is that selective ‘demanding of papers’ already goes on for flatirons ranging from DUI to speeding. Your argument, if applied equally (and not just in defensive of non-W.A.S.P.s) would require law enforcement officials to stop any and all drivers to check their blood alcohol because we can’t have them simply pulling over or in your words, “demanding of papers” of only those who appear to be driving as an intoxicated individual would.

    ANSWER [to 2ND Question]: Ha, ha. Very clever. I’ll take a wild guess and say that the word Ramesh has in mind here is “illegal.” But, no, it is not missing. I deliberately left it out. And the reason is that the Arpaio Law will cause the attrition of both the legal and illegal population alike because the racial profiling it unleashes will open both up to Arpaio-style harassment. What’s more, many legal immigrants and even naturalized citizens in the Latino community are related to undocumented workers ? they are their mothers, daughters, fathers, sons, aunts, uncles, cousins, some of whom are undocumented because the feds have not been able to process their visa extensions in time. Many of the legals will find it hard to stick around if their loved ones are hounded out.

    REBUTTAL: Again you are injecting a biased, emotional response to what should be a question of legality with a dash of logic and common sense. To say that because some illegal immigrants may be related to legal immigrants is justification to let everyone be is akin to saying because a criminal might be related to a non-criminal we should leave them all alone; after all they like the illegals aren’t doing anyone any harm right?

    Actually the truth, which you clearly like to ignore as much as any law you find disfavor with, is that illegal actions by legal and illegal immigrants alike is wrong and will cause harm directly or indirectly to one or more other citizens of this country. I assume you are here legally, perhaps as a spoiled rotten second generation immigrant whose parents had to bust their butts to get here and raise you but to which you were able to avoid and so now you’re as much a brat as the other second and third generation illegals who believe they are owed something by those who are not illegal. If you are a legal resident or visitor and you don’t like the laws then run for political office and do something legal about it.

    Be warned however that as much as you would like to believe this is a democracy (where 2 wolves and 1 sheep vote on whats for dinner) it is in fact a representative republic which means the rights of the minority are protected from the majority and the BILL OF RIGHTS enumerates those rights which are inalienable. That means you can’t take them away no matter who you are including the President because they are endowed to us by our creator whoever we may believe that creator is and an inalienable right is not one granted by the government and therefore can not be taken away by or altered nor even restricted by any LEGAL government action.

    Have a nice day comrade and long live the revolution!

    NeverForget1776

  33. Answer [to 1st Question]: It is true that the 9th Circuit Court upheld that law, but the matter is now before the Supreme Court ? so the issue is far from settled. However, legal scholars of varied political persuasions believe that the Supremes too are likely to uphold this law for two reasons ? neither of which applies to the Arpaio Law:

    One, the law requires all Arizona employers to use E-verify to check the legality of all their new workers, not just some employers or some workers. Hence, it does not run afoul of the Constitution’s equal protection clause. The Arpaio Law, by contrast, empowers Arpaio and his minions to demand papers of only those who raise “reasonable suspicion.” Regardless of what defenders of the law claim, this can’t help but lead to racial profiling of brown-skinned, non-blue-eyed furhners (like Ramesh and myself) who speak with an accent (unlike Ramesh, but like myself) as I argued here. This is constitutionally problematico ? but opponents of the Arpaio Law actually can’t make that argument in court until the law goes into effect. Hence, that’s not the reason that the courts will throw out this law now, although they might later if it doesn’t get thrown out first for the second reason stated below.

    REBUTTAL: Well formed answer and nice touch adding that the prior case is still not settles as it helps to roved cover to the flaw in your argument.

    Case in point “..the law requires all Arizona employers to use E-verify to check the legality of all their new workers, not just some employers or some workers. Hence, it does not run afoul of the Constitution’s equal protection clause. The Arpaio Law, by contrast, empowers Arpaio and his minions to demand papers of only those who raise “reasonable suspicion.” ~Ramesh

    The problem with this argument is that selective ‘demanding of papers’ already goes on for flatirons ranging from DUI to speeding. Your argument, if applied equally (and not just in defensive of non-W.A.S.P.s) would require law enforcement officials to stop any and all drivers to check their blood alcohol because we can’t have them simply pulling over or in your words, “demanding of papers” of only those who appear to be driving as an intoxicated individual would.

    ANSWER [to 2ND Question]: Ha, ha. Very clever. I’ll take a wild guess and say that the word Ramesh has in mind here is “illegal.” But, no, it is not missing. I deliberately left it out. And the reason is that the Arpaio Law will cause the attrition of both the legal and illegal population alike because the racial profiling it unleashes will open both up to Arpaio-style harassment. What’s more, many legal immigrants and even naturalized citizens in the Latino community are related to undocumented workers ? they are their mothers, daughters, fathers, sons, aunts, uncles, cousins, some of whom are undocumented because the feds have not been able to process their visa extensions in time. Many of the legals will find it hard to stick around if their loved ones are hounded out.

    REBUTTAL: Again you are injecting a biased, emotional response to what should be a question of legality with a dash of logic and common sense. To say that because some illegal immigrants may be related to legal immigrants is justification to let everyone be is akin to saying because a criminal might be related to a non-criminal we should leave them all alone; after all they like the illegals aren’t doing anyone any harm right?

    Actually the truth, which you clearly like to ignore as much as any law you find disfavor with, is that illegal actions by legal and illegal immigrants alike is wrong and will cause harm directly or indirectly to one or more other citizens of this country. I assume you are here legally, perhaps as a spoiled rotten second generation immigrant whose parents had to bust their butts to get here and raise you but to which you were able to avoid and so now you’re as much a brat as the other second and third generation illegals who believe they are owed something by those who are not illegal. If you are a legal resident or visitor and you don’t like the laws then run for political office and do something legal about it.

    Be warned however that as much as you would like to believe this is a democracy (where 2 wolves and 1 sheep vote on whats for dinner) it is in fact a representative republic which means the rights of the minority are protected from the majority and the BILL OF RIGHTS enumerates those rights which are inalienable. That means you can’t take them away no matter who you are including the President because they are endowed to us by our creator whoever we may believe that creator is and an inalienable right is not one granted by the government and therefore can not be taken away by or altered nor even restricted by any LEGAL government action.

    Have a nice day comrade and long live the revolution!

    NeverForget1776

    1. Actually the truth, which you clearly like to ignore as much as any law you find disfavor with, is that illegal actions by legal and illegal immigrants alike is wrong and will cause harm directly or indirectly to one or more other citizens of this country.

      That means you can’t take them away no matter who you are including the President because they are endowed to us by our creator whoever we may believe that creator is and an inalienable right is not one granted by the government and therefore can not be taken away by or altered nor even restricted by any LEGAL government action.

      It’s hard to believe that the same person wrote the first of these passages as wrote the second.

      Those very rights that are endowed to us by our creator and that are inalienable and therefore cannot be taken away by government are exactly the rights that are utterly abrogated by current immigration law.

      All migration should be prima facie legal. Prohibition of immigration should be the exception and used only when a specific migrant can be individually proven to be dangerous.

  34. I’ll have to remember this trick of misrepresenting other people’s efforts to quote me. Ramesh clearly put ‘drive out immigrants’ in quotation marks, so I found it odd that he was quoting from the sentence Shikha restated, which doesn’t include “drive”, “out” or “immigrants”. I followed the link provided, and it is clear to me that he was quoting from where Shikha misrepresents (intentionally or not) the intent of the law.

  35. Arizona’s harsh, new immigration law

    Arizona’s “harsh, new immigration law” is identical to US immigration law.

    if, as I argued, it is unconstitutional for states to pass laws whose primary purpose is regulating immigration flows

    It’s not unconstitutional. The Constitution does not vest in the Federal government the sole power to “regulate ummigration flows – meaning, in this case, enforce immigration law.

    The very existence of a federal law requiring immigrants to carry their papers implicitly serves notice to states that they have no business passing their own laws because immigration is a constitutionally protected federal function.

    So, does the existence of federal laws against murder or kidnapping mean that state laws against murder or kidnapping are likewise invalid?

    In any case, the sum total of what the US constitution says abut this topic is “The Congress shall have Power To .. establish an uniform Rule of Naturalization”.

    Nobody is challanging that. If the US Congress wants to grant US citizenship to the illegals, nobody can stop them. What the Feds CANNOT do is refuse to enforce the law while insisting that nobody else enforce the law either.

    If Shikha Dalmia took her own constitutional arguments seriously, she be forced to call for an end to the “sanctuary city” polices so common in America. These are instances of localities, and sometimes states, making their own immigration polciy. And unlike the case with Arizona, they are setting a immigration policy which is in direct opposition to US law.

    But US con-law expert Shikha Dalmia is unable to see a problem with that.

  36. the reason is that the Arpaio Law will cause the attrition of both the legal and illegal population alike because the racial profiling it unleashes will open both up to Arpaio-style harassment.

    It’s hard to believe that this sort of goofy left-wing crapola is what the Koch brothers pay you good money for. Hell, I can write them better open-borders argments for less money! You’re an affirmative action hire, Dalmia.

  37. Indeed, if Krikorian had his way, Ramesh, a first-generation immigrant, wouldn’t even be here today.

    Surely, this should bother Ramesh enough to direct a few pointed questions toward Krikorian too.

    In other words, “Hey Ramesh, we Indians have to stick together against those Euros!”

    That’s a nice coda to a column which tries to pretend, however poorly, to be against racism.

  38. “First Question: if, as I argued, it is unconstitutional for states to pass laws whose primary purpose is regulating immigration flows …”

    Why is that? What provision(s) of the Constitution authorize(s) the federal government to allow or deny passage across the border, or to track foreigners while they are here? I know that there is a “repel invasions” provision in the Constitution, and various people characterize illegal immigration from Mexico as part of some alleged “reconquista” invasion, but does anyone seriously view immigration power as being reasonably necessary and proper to exercise the authority to repel invasions? On the other hand, if not that, then what DOES grant immigration power to the federal government? And if it is not granted to the federal government, then doesn’t that power rest with the individual States?

    (Related thought: Maybe someone should ask aspiring Justice Kagan where SHE locates immigration authority in the Federal constitution.)

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