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  1. Subscriber no1marauder
    It's Nice to Be Nice
    25 Jun '12 14:38 / 1 edit
    Still reading the whole thing (http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf) but by a 5-3 vote the Court has tossed out the provisions making it a State criminal offense not to meet the registration requirements of federal law and making it a State crime for an unauthorized alien to seek work. Also Section 6 which: Section 6 authorizes officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.” All are gone based on preemption grounds i.e. regulation of immigration is a Federal, not State, matter.

    Section 2(B) provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the Federal Government. See §11–1051(B) (West 2012).

    This provision seems to have been kicked back to the lower courts on technical grounds; I'll look over that part of the decision and get back.

    EDIT: 2(B) has been upheld essentially on the idea that it is too early to say whether it will be applied in an unconstitutional manner. At p. 24:

    There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a waythat creates a conflict with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277 (1915) (“So far as statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts” (citation omitted)). As a result, the United States cannot prevail in its current challenge. See Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 446 (1960) (“To hold otherwise would be to ignore theteaching of this Court’s decisions which enjoin seeking outconflicts between state and federal regulation where none clearly exists&rdquo. This opinion does not foreclose other preemption and constitutional challenges to the law asinterpreted and applied after it goes into effect


    Big loss for the right wingers and Kennedy and Roberts joined the majority (with Kagan not participating).
  2. Standard member sh76
    Civis Americanus Sum
    25 Jun '12 15:00 / 2 edits
    Originally posted by no1marauder
    Still reading the whole thing (http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf) but by a 5-3 vote the Court has tossed out the provisions making it a State criminal offense not to meet the registration requirements of federal law and making it a State crime for an unauthorized alien to seek work. Also Section 6 which: Section 6 authorizes offic ...[text shortened]... o the lower courts on technical grounds; I'll look over that part of the decision and get back.
    Okay, I just finished reading the majority opinion and I skimmed Scalia's dissent.

    A few thoughts:

    1) Pre-emption was almost no-brainer. The federal legislation on the subject is so thorough that to argue that it wasn't meant to occupy the field of immigration is a difficult argument to make.

    2) Scalia (though I did't read the dissent very carefully), seems to almost implicitly concede this. He focuses on the states' authority in the areas of immigration control. He seems to be arguing not that the federal government didn't mean to preempt the states in this area, but that the states have their own power to regulate immigration. He concedes that the feds could explicitly override state law on immigration, but he's clearly not happy about it.

    In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to overlook their sovereign prerogative to do so.


    3) Most of Scalia's authority is 200+ years old. He's clearly not happy about the expansion of federal power at the expense of the states since the early 1800s and seemingly would be happy to unwind it if he could.

    4) The Court telegraphed their opinion should the Obama decision to limit deportations ever be challenged

    A decision on removability requires a de­termination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made
    with one voice.

    I don't know if the recent Obama action had any impact on this decision (probably not, as the opinions are usually written well in advance), but it's almost as though the court is saying "don't bother" to anyone who is contemplating a lawsuit to force the enforcement of deportation rules.
  3. Subscriber no1marauder
    It's Nice to Be Nice
    25 Jun '12 15:13 / 1 edit
    Originally posted by sh76
    Okay, I just finished reading the majority opinion and I skimmed Scalia's dissent.

    A few thoughts:

    1) Pre-emption was almost no-brainer. The federal legislation on the subject is so thorough that to argue that it wasn't meant to occupy the field of immigration is a difficult argument to make.

    2) Scalia (though I did't read the dissent very carefully), nyone who is contemplating a lawsuit to force the enforcement of deportation rules.
    The "no-brainer" got 3 votes to the contrary on 5(c) and 6 though Alito voted with the majority that 3 was pre-empted (p. 11 of his dissent; p. 66 of the pdf).

    The Skeptical Fairy standing on my shoulder whispering into my ear informs me that this is a bone thrown to the Left right before Health Care Reform gets completely tossed. The SCOTUS also today ruled that mandatory life without parole sentences for 14 year olds violates the 8th Amendment.
  4. Standard member sh76
    Civis Americanus Sum
    25 Jun '12 15:18
    Originally posted by no1marauder
    The "no-brainer" got 3 votes to the contrary on 5(c) and 6 though Alito voted with the majority that 3 was pre-empted (p. 11 of his dissent; p. 66 of the pdf).

    The Skeptical Fairy standing on my shoulder whispering into my ear informs me that this is a bone thrown to the Left right before Health Care Reform gets completely tossed. The SCOTU ...[text shortened]... so today ruled that life without parole sentences for 14 year olds violates the 8th Amendment.
    You think John Roberts cares enough to throw the left a bone? I don't know. He's got life tenure as Chief Justice and I don't think he could care less how the left views him.

    I think that Roberts didn't see the necessity to throw out the pre-emption doctrine, which is what Scalia essentially argues for. Scalia first explains how important it is for states to have some say in immigration policy and then says essentially "we're not throwing out state regulation on this issue unless it's clear that the feds contradicted it." Since the same logic could apply to virtually any area of regulation, Scalia wants to dump the pre-emption doctrine. I could see why a practical conservative Justice would want to avoid doing that.
  5. Standard member sh76
    Civis Americanus Sum
    25 Jun '12 15:21
    Thomas says it even more clearly in his opening line

    I agree with JUSTICE SCALIA that federal immigration
    law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisions of Arizona law at issue here. Wyeth v. Levine, 555 U. S. 555, 588 (2009) (THOMAS, J., concurring in judgment) (“Pre-emption analysis should not be a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict” (brackets; internal quotation marks omitted)).


    He wants to gut pre-emption.
  6. Subscriber no1marauder
    It's Nice to Be Nice
    25 Jun '12 15:27 / 1 edit
    Originally posted by sh76
    You think John Roberts cares enough to throw the left a bone? I don't know. He's got life tenure as Chief Justice and I don't think he could care less how the left views him.

    I think that Roberts didn't see the necessity to throw out the pre-emption doctrine, which is what Scalia essentially argues for. Scalia first explains how important it is for states to ctrine. I could see why a practical conservative Justice would want to avoid doing that.
    I think Kennedy has some concerns with how he is viewed in history though. He'll be 76 next month and I don't think he wants to be perceived as an ideologue when he leaves the court.

    Roberts is Chief Justice and they generally have some concern about respect for the institution. Surely he knows that striking down the PPACA is an unprecedented ideological judicial limitation of Congressional power is an area of undoubted legislative authority. Coupling that decision with a decision granting States extraordinary power in an area expressly reserved to Congress may have been too much.

    EDIT: Then again the Skeptical Fairy is my personal Metal Brain so you have to take its interpretations with more than a grain of salt.
  7. Subscriber no1marauder
    It's Nice to Be Nice
    25 Jun '12 15:29
    Originally posted by sh76
    Thomas says it even more clearly in his opening line

    I agree with JUSTICE SCALIA that federal immigration
    law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisio ...[text shortened]... onflict” (brackets; internal quotation marks omitted)).


    He wants to gut pre-emption.
    Thomas likes to keep things simple. That way you can doze through oral argument without asking any questions.
  8. Subscriber no1marauder
    It's Nice to Be Nice
    25 Jun '12 15:34
    I noticed Kennedy wrote the majority decision even though Roberts was in the majority, too. I wonder if this means that Roberts will pen the majority decision in the health care case which is probably the most far reaching case to hit the court in decades (perhaps longer). Chief Justices don't like to be completely upstaged.
  9. Subscriber no1marauder
    It's Nice to Be Nice
    25 Jun '12 15:59
    Originally posted by sh76
    Okay, I just finished reading the majority opinion and I skimmed Scalia's dissent.

    A few thoughts:

    1) Pre-emption was almost no-brainer. The federal legislation on the subject is so thorough that to argue that it wasn't meant to occupy the field of immigration is a difficult argument to make.

    2) Scalia (though I did't read the dissent very carefully), ...[text shortened]... nyone who is contemplating a lawsuit to force the enforcement of deportation rules.
    sh76 (quoting the SCOTUS decision): A decision on removability requires a de­termination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made
    with one voice.

    Was this in the body of the opinion or in a footnote?
  10. Subscriber Sleepyguy
    Reepy Rastardly Guy
    25 Jun '12 16:05
    Originally posted by no1marauder
    sh76 (quoting the SCOTUS decision): A decision on removability requires a de­termination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made
    with one voice.

    Was this in the body of the opinion or in a footnote?
    Page 18 first paragraph.
  11. Standard member sh76
    Civis Americanus Sum
    25 Jun '12 16:05
    Originally posted by no1marauder
    sh76 (quoting the SCOTUS decision): A decision on removability requires a de­termination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made
    with one voice.

    Was this in the body of the opinion or in a footnote?
    It's in the body. Page 18, first paragraph in your link.
  12. Subscriber no1marauder
    It's Nice to Be Nice
    25 Jun '12 16:16 / 1 edit
    Originally posted by sh76
    It's in the body. Page 18, first paragraph in your link.
    Gotcha.

    I really don't see that discussion as terribly relevant to any legal challenge to Obama's policy decision on immigration. The "one voice" is the Federal Government and the paragraph is discussing principles of federalism. Presumably any challenge to the new policy would be based on separation of powers grounds (though as I have already stated elsewhere I don't see any reasonable grounds for challenge given the Congressional grant of wide discretion to the Executive in enforcing immigration laws).

    EDIT: The sentence before the quoted one:

    By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.
  13. Standard member sh76
    Civis Americanus Sum
    25 Jun '12 17:59
    Originally posted by no1marauder
    Gotcha.

    I really don't see that discussion as terribly relevant to any legal challenge to Obama's policy decision on immigration. The "one voice" is the Federal Government and the paragraph is discussing principles of federalism. Presumably any challenge to the new policy would be based on separation of powers grounds (though as I have al ...[text shortened]... rinciple that the removal process is entrusted to the discretion of the Federal Government.
    Yeah, you're probably right.

    Is there any precedent for a successful suit against the executive branch for failing to enforce a law? I can't think of any offhand.
  14. Subscriber Sleepyguy
    Reepy Rastardly Guy
    25 Jun '12 19:03
    In related news...

    http://www.washingtontimes.com/news/2012/jun/25/homeland-security-suspends-immigration-agreements-/

    The Obama administration said Monday it is suspending existing agreements with Arizona police over enforcement of federal immigration laws, and said it has issued a directive telling federal authorities to decline many of the calls reporting illegal immigrants that the Homeland Security Department may get from Arizona police.

    Administration officials, speaking on condition they not be named, told reporters they expect to see an increase in the number of calls they get from Arizona police — but that won’t change President Obama’s decision to limit whom the government actually tries to detain and deport.

    “We will not be issuing detainers on individuals unless they clearly meet our defined priorities,” one official said in a telephone briefing.

    The official said that despite the increased number of calls, which presumably means more illegal immigrants being reported, the Homeland Security Department is unlikely to detain a significantly higher number of people and won’t be boosting personnel to handle the new calls.

    “We do not plan on putting additional staff on the ground in Arizona,” the official said.

    The Supreme Court ruled Monday that Arizona may not impose its own penalties for immigration violations, but it said state and local police could check the legal status of those they have reasonable suspicion to believe are in the country illegally.

    That means police statewide can immediately begin calling to check immigration status — but federal officials are likely to reject most of those calls.

    Federal officials said they’ll still perform the checks as required by law but will respond only when someone has a felony conviction on his or her record. Absent that, ICE will tell the local police to release the person.
  15. Standard member sh76
    Civis Americanus Sum
    25 Jun '12 20:23 / 1 edit
    Originally posted by Sleepyguy
    In related news...

    http://www.washingtontimes.com/news/2012/jun/25/homeland-security-suspends-immigration-agreements-/

    The Obama administration said Monday it is suspending existing agreements with Arizona police over enforcement of federal immigration laws, and said it has issued a directive telling federal authorities to decline many of the ...[text shortened]... on his or her record. Absent that, ICE will tell the local police to release the person.
    Heh.

    So they're essentially telling Arizona: Ha! You lost in Court! Now, drop dead.