Michelle Malkin and Immigration

I see, your link wasn't working when I posted. That, by the way, is called sarcasm. You might look at getting rid of some.

 

This has been an interesting thread and good points brought up by both sides (the name calling notwithstanding). One thing I have noticed that has been brought up a number of times is that many people in this thread expect that the AZ law will not be able to stand up to constitutional scrutiny. I'm not trying to call anyone out and I know most people are not attorneys, but arguing that the law is or is not constitutional is in essence making a legal argument and I haven't seen much in the way of an explanation as to why the law will or will not be constitutional. I am not a constitutional lawyer, but here is my very brief (and not necessarily complete) take on the law:

I think what many people are saying is that the law unfairly targets, either intentionally or through its pragmatic application, Hispanics - and most notably, Hispanics who are in the country legally. In other words, there is a concern that the law is either designed or will simply be used to discriminate against those of Hispanic descent. Laws that so discriminate are violative of the equal protection clause of the US Constitution and are thus illegal. Laws will generally be determined to be racially discriminative if (1) the law is discriminatory on its face (ie. if the language explicitly targets a particular race), (2) the law, although neutrally worded, is actually applied in a discriminatory way, or (3) the law, although neutrally worded, is shown to be discriminatory in its legislative history, evidence of the law’s disparate impact, or other evidence of discriminatory intent. Let’s discuss these one by one.

1. Language of the Law. The language of the statute does not mention race. No sane legislator in modern history would make such a stupid mistake.

2. Administration of the Law. The law has not actually been implemented yet so no real argument exists that it is being implemented in a discriminatory way. I know there are concerns that it will be, but we have not crossed that bridge yet and thus, legally speaking, this issue is not yet “ripe.”

3. Other Evidence. This is where opponents to the law may have an equal protection argument. Given the percentage that Hispanics make up in terms of illegal immigrants in AZ compared to those of other races/national origins, it can be argued that the disparate impact is a factor supporting an argument for racial discrimination. However, the US Supreme Court has held that disparate impact alone can NEVER suffice as proof of racial discrimination. In other words, you simply cannot say the law is unfair to Hispanics and thus unconstitutional. You need to provide more evidence other than the fact that the vast majority of illegal aliens in AZ are Hispanic. To support the equal protection argument, you would have to look to the legislative history to determine the intent of the legislators. Comments referring to Hispanics or Mexicans would support an argument of an equal protection violation while comments referring simply to illegal immigrants make the argument more difficult. In addition, supporters of the law will likely argue that it does not discriminate based upon race or national origin but discriminates based upon a person’s immigration status. Race and national origins are protected classes under the Constitution but immigration status is not.

In my opinion, defeating the AZ law based upon an equal protection argument is a toss up. There is actually a much better argument that will be a disappointment for opponents to the law as it is more of a procedural argument and is not as sexy as declaring the law discriminatory towards Hispanics. That argument is based upon the doctrine of federal preemption. Generally speaking, a state law will fail where it conflicts with a federal law or addresses an area of law that is essentially taken over (either explicitly by statute or impliedly by conduct) by the federal government. In this case, the law really does not conflict with federal law and in fact, almost completely mirrors it. However, immigration is an area of law that has long been regulated by the federal government. I haven’t researched the federal statutes or cases addressing immigration so I really can’t comment on whether this area of law has been completely preempted by the federal government or the extent to which it has been. Although the race issue will get the most media attention, I suspect the federal preemption issue will drive the real (ie. legal) arguments.

 

Oh my...most excellent analysis dgaspar! Well written and has that legal speak that I seem to understand and follow well. You present both sides without letting us figure out what side you are on...THX again.

Dean

 

fact check: so nationwide there were 1.2 million fewer undocumented workers in the u.s. in 2009 compared to 2008 (a result of the recession?). az had an 18% drop (100,000) during the same time period, but still had an increase from 330,000 in 2000 to 460,000 in 2009. the violent crime rate fact (lowest since 1972) in az was attributed to the fbi uniform crime report. so, obviously, illegal immigrants have made the state a much safer place (numbers don't lie).

j/k.

also, the number of "illegals" caught crossing the border into az dropped 40% over the last 3 years.

and- mark your calendar for sept. 4. that's hispanic heritage day for the diamondbacks. outta be a hoot...

p.s. there are 1.5 million LEGAL hispanics in az. i wonder how they'll be voting in november. political karma is a bitch.

:cheers:

 

Nice manipulating of the numbers. You realize that you have to be 18 to vote right? That means only 670,000 of those Hispanics are elligible to vote. Considering that is half the number of registered Republicans I'd say that Karma isn't such a bitch.

 

My reason for believing that it's constitutional validity, or lack thereof, stems mostly from the fact federal law expressly states that issue of immigration and its enforcement are strictly the domain of the feds.

A couple of items I found, the first one came from a friend in AZ, while the federal government enjoys substantial deference in enacting immigration laws, the states cannot draw on that deference to justify more restrictive regimes (Takahashi v. Fish and Game Commission 1948).

And that “equal protection of the laws” applies to anyone in the country, regardless of their right to be here.

"To permit a State to employ the phrase “within its jurisdiction” in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection...'

However, you can expect more states who have international borders to attempt to gain more authority over those borders, in particular, who comes through them.

For those of the "papers please" that this legislation might cause belief system, I will offer this to ponder as well, how is a sobriety check point any different?

 

oh, please. i was just stating a fact.

the only numbers i manipulate are living in a halfway house on a one-way street, and i'm a quarter past left alive.

btw- those little ones get older--and smarter--every day. and those ancient repubs like mccain should start dropping like flies in a tucson heat wave soon.

and at sobriety checks everybody gets checked, not just the DWB's.

 

Not true at all.

Not everybody gets checked, about every third vehicle on average. and that what I have witnessed and also corroborated by my cop neighbors.

- its constitutionality was challenged and the courts ruled it was most definitely constitutional.

Hard to find a more constitutionally acceptable use of selective law enforcement.

 

okay...every third car gets checked, regardless of color. see the difference? :lol:

 

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I think that lifestyle option disappeared on 9/11

 

you better move to switzerland or maybe afghanistan, im sure they dont require ID? again ill show my ID anytime, anyplace! nothing to hide!:beer:

 

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I'm not sure I understand the point you're trying to make here. How does this statement specifically relate to the law recently passed in AZ? (And please don't insult me, I'm just looking for clarification). Thanks.

 

I prefer such a lifestyle as well, and I lived it for the most of my life until about 10 years ago.

Our country, and the World are very different and the reality of those changes have surpassed the laws and their intent. Our so called free country is anything but and the laws need to catch up to the realities of the modern world, good, bad or indifferent.

All one has to do is talk directly with those who are in the trenches of law enforcement, medical care, education and any other set of social services to see that continuing down this path with the same inaction and idea of quiescence is just no longer acceptable.

Closing the borders to all immigration should be the first step. Then stepped up enforcement and deportation of any and all illegal immigrants.

Another loophole to close is the baby anchor nonsense. Being here illegally never should be rewarded by citizenship just because a mother managed to get through in time to give birth in this country. Being transported here illegally does not make you legal.


"WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c)."

How else do you enforce this (already existing Federal) law other than by stop and search?

If the Feds won't do it, then what alternatives do states with extreme illegal immigration have at their disposal?

Why should states face the very real possibility of economic and social ruin due to illegal immigration?

Why shouldn't states have at their disposal the tools to combat illegal immigration and to rid themselves of its impacts?

Illegal aliens IMHO should have absolutely no rights in this country. Why we give them medical, housing, food stamps etc, for free and yet I, and many other US citizens, can barley afford our families health care is beyond the pale.

To put the welfare and "rights" of illegal aliens ahead of US citizens is one of the most despicable things this country allows to happen. It is wrong no matter how you look at it.

The Federal government has not enforced our borders properly for decades and it's way past time to start doing so.

 

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By absolutely no rights, I mean anyone here illegally to have no rights to be here, get any benefits funded by taxpayers, or be able to gain any of those in this country.

They do deserve to be treated humanely as they are being deported by the swiftest method possible.

"I don't want MY rights, a legal citizen, treaded upon just so smokey can arrest someone who is breaking the law."

But you are willing to give up rights so those breaking the law can have them? I'm not.

 

Looking vaguely Mexican.

Americans are pretty ignorant about other cultures, so I'd guess you'd have to include any sort of Spanish accent, whether it be Cuban, Argentinian, or Brazilian.

(Let's see who the first clever person is...)

 

It bothers me that even though at this time we are looking at illegal immigration what happes in the future?

Is it going to be Europe 1930's? Ve vant to so your papers!

Seems to me this is just another way of us losing our rights.