By Michael Bryan
Senator Pearce caused to be published (I suspect his press secretary actually wrote it… it smells of his hand) an op-ed attacking the 9th circuit in general and launching an ad hominem attack on two of the judges. Notably, Pearce did not address any issues of substance, instead merely ranting about some decontectualized dicta regarding international relations that were not even central to the Court's findings.
Let's take a look at what he says:
"Monday's 9th Circuit Court of Appeals decision against Arizona's SB 1070 demonstrates the complete contempt that many federal judges have for the Constitution and the democratic process. Unfortunately, judges all too frequently abuse their power to impose their own agenda. The 9th Circuit is widely held as the most activist court in the nation and even ruled that the Pledge of Allegiance is unconstitutional."
Actually, I would say that passing laws that any first year law student would tell you will be inevitably found unconstitutional merely to whip up your political base demonstrates contempt for the Constitution and the democratic process, Mr. Pearce.
"The decision against SB 1070 went a step farther in that the judges explicitly appealed to their own ideological and political concerns, and went as far as to cite the views of anti-American dictators as a justification for subverting the rule of law."
Note that there is no substantiation of this charge that the decision was ideologically or politically motivated. There is a reason for that: it is simply not true. The claim that the judges cited the views of "anti-American dictators" merely highlights that Pearce is merely engaging in propagandistic rhetoric.
"Justice Richard Paez, who wrote the decision, argued that the law has "created actual foreign policy problems." Among the "problems" he cited was the disapproval of the Mexican government, the United Nations Human Rights commissioners, the government of Bolivia, and the Organization of American States. What he does not mention is that the United Nations commission includes dictatorships such as Cuba and Saudi Arabia. Cuba is also a member of the Organization of American States, as are the socialist dictatorships of Bolivia and Venezuela."
This was merely dicta regarding the exclusive control of foreign policy by the Federal Government. Brewer has also harped on the UNHR noting the passage of SB1070 to try to portray the UN as meddling in our internal affairs. This is just an attempt to throw a scare into the black-helicopter crowd who despise the UN to try to discredit the 9th circuit's two separate decisions finding that SB1070 violates our Constitution in myriad ways. The judges in this case merely noted that the reactions of the international community is evidence that SB1070 has, in fact, had an effect on our nation's foreign relations.
"The United States has not had diplomatic relations with Cuba for more than 50 years. In 2008, Bolivian President Evo Morales said that all Latin American nations should expel American ambassadors and cheered on a mob who tried to burn down our embassy. He said, "I don't mind being a permanent nightmare for the United States." Venezuela's dictator Hugo Chavez has spewed so much anti-American rhetoric that even Barack Obama expelled their ambassador just three months ago. Chavez had called Bush the "devil" and Obama "Satan."
The idea that the SB 1070 will affect our relationships with this country is preposterous."
If preposterous is defined as "self-evident" then Pearce may have a point. Otherwise his diatribe against Cuba and Bolivia is just so much red meat for his base. I give Pearce (or his press secretary) points for knowing his audience.
"Judge John Noonan wrote a concurring opinion against Arizona in which he argued that SB 1070 would upset our relations with Mexico, which he called a "policy… of cordiality, friendship and cooperation." Really?"
Yes, really. Mr. Pearce seems to have no idea that Mexico is one of our strongest bi-lateral relationships and one of our largest trading partners. This is the problem with tin-pot ignoramuses like Pearce trying to insert themselves into our nation's foreign policy: they have an extremely limited and parochial view of American interests. Pearce would reduce an extremely robust and complex relationship to nothing more than an immigration problem that can be addressed simply by cracking down on Mexicans with "tougher" laws, draconian enforcement, and building a 'dang' fence.
"The Mexican government has tried to subvert American immigration laws and protested any attempts by the federal government to secure our borders long before SB 1070. In 2005, the Mexican government published the Guia de Migrante Mexicano (Guide for the Mexican Migrant) that gave advice to help illegal aliens break into our country, such as "If you cross by desert, try to walk at times when the heat will not be too intense."
Mexico President Felipe Calderon has stated "I have said that Mexico does not stop at its border, that wherever there is a Mexican, there is Mexico," and protested against "unilateral measures taken by the Congress and the United States government that exacerbate the persecution and the vexing treatment against undocumented Mexican workers.""
These sort of fact-free assertions and slanders merely underscore that Mr. Pearce and his loonie supporters are not in anyway qualified to insert themselves into our nation's vital diplomatic relations.
"These judges did not come up with these bogus arguments by themselves. They echo an affidavit against SB 1070 by Obama's Deputy Secretary of State that cited the same concerns over the United Nations and foreign governments."
Yes, the Obama State Department submitted an affidavit stating that SB1070 has had an impact (and a negative one) on our international relations. This, again, is merely the background for the claim that Arizona is interfering with the Federal Government's exclusive control over foreign policy. Of course, I may just be missing the forest for the trees: it could be that Pearce includes this information just because to his supporters anything the Obama Administration does must automatically be wrong.
"While claiming this did not affect his decision, Judge Noonan also felt compelled to state in his opinion, "For those sympathetic to immigrants (he won't acknowledge they are illegal) to the United States, (SB 1070) is a challenge and a chilling foretaste of what other states might attempt." The role of the courts is to judge a law against the Constitution as the founders intended it. The views of Third World dictators, United Nations bureaucrats, and whether the judge themselves are "sympathetic to immigrants" should have no bearing on their rulings."
Yes, the judges' job was to determine whether SB1070 comported with our Constitution. They did that -and determined that SB1070 could not be reconciled with our Constitution. Judge Noonan here is refering to the self-evident fact that upholding SB1070 would open the floodgates to every State crafting its own immigration policy. Again, this is merely dicta, but the potential for SB1070 causing chaos for the Federal Government's carefully balanced immigration priorities is manifest.
Pearce makes a big mistake here. He implies that Judge Noonan is himself "sympathetic to immigrants" and ruled as he did for that reason. As I will later demonstrate, that is very unlikely to be the case.
"The Tenth Amendment of the Constitution clearly states that powers not "prohibited by (the Constitution) to the States, are reserved to the States respectively, or to the people." In the 87-page ruling, not one of the justices even tries to point to a word in the Constitution that denies states the right to enforce immigration law."
Actually the whole ruling is based on federal law's pre-emptive effect on state statutes (Article VI, Supremacy Clause) and the exclusive control of foreign policy by the Federal Government (Article I, Sections 8 [enumerated powers] and Section 10 [restrictions on states]). Those things are clearly and explicitly in our Constitution. So, it turns out that there is a word or two that the Court relied on. Pearce is a bald-faced liar.
Pearce is really relying on the 10th Amendment here? Really? That sure didn't appear in Arizona's briefing – because it is joke, not an argument. Pearce is making a fool of himself with such claims.
"Prior precedent also supports SB 1070. The case United States v. Vasquez-Alvarez stated that there is "pre-existing general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws." The 9th Circuit's own decision in Gonzales v. City of Peoria said that local police can inquire about and if need be arrest illegal immigrants if there is "probable cause to believe either that illegal entry has occurred or that another offense has been committed.""
The U.S. Attorney General has control of how and when state and local police may assist in enforcement of immigration laws. Arizona's attempt to usurp the AG's discretion is one focal point of SB1070's unconstitutionality. Pearce is just not telling the truth when he makes claims that all SB1070 does is allow state and local officers to enforce the law, or that SB1070 merely mirrors fedral law. The Court dealt with Arizona's rather tortured reading of both these precedents and found them not to apply to SB1070.
"Despite this setback, the people of Arizona will fight on. We will appeal this decision up to the Supreme Court, where there are at least a few constitutionalists on the bench. Poll after poll shows that the citizens of Arizona and America support SB 1070 by at least a 2-1 margin. Personally, I value their opinions more than a couple of left wing activist judges."
Apparently, Pearce suffers the same meglomaniacal disorder that prompted Louis XIV to declare "L'état, c'est moi!" Pearce thinks his party's squandering of Arizona's resources on a hopeless and pointless legal fight somehow benefits the people of Arizona. In fact, this continuing fight is merely Pearce's means of preserving his own personal power by continuing to focus Arizona's state politics on divisive and futile attacks on our Constitution over immigration (and whatever Skousen nonesense he's pedalling this week), instead of on his party's job-killing budget and terrible record of providing needed services (education, public safety, health care) to Arizona's citizens.
I dare say that Pearce will NOT be vidicated by an appeal to the Supreme Court. If they even grant cert, which seems unlikely to me, I have no doubt that the "constitutionalists" Pearce is counting on will repudiate SB1070 as thoroughly as has every federal court so far.
Pearce, at the very end of his rant, claims that the judges who decided this case are "left wing activist judges". Let's examine that.
I find it odd that Pearce, a Mormon, would attempt to label Judge Paez, a fellow Mormon, as a left wing activist. Not all Mormons are as conservative (actually, "fascistic" would be a more apt description of Pearce's politics) as Pearce, but I don't think they often qualify as left wing activists. But he was appointed by Clinton, so that must automatically make him a left wing activist in Pearce's eyes.
As to Judge Noonan, the charge of left wing activism is especially hilarious. Noonan was appointed by Reagan. He started his career working for the National Security Council as assistant to Robert Cutler. He is deeply religious Catholic who is a member of the college of fellows of the Dominican School of Philosophy and Theology, and has published on subjects such as the history of contraception in the law and the history of abortion in Catholic theology. He is the very model of a modern conservative justice. For Peace to try to paint Noonan with a left wing activist brush is patently absurd.
Pearce's op-ed is shallow, either misinformed or actively misleading, bombastically and jingoistically propagandistic, and down-right mendacious. He should apologize to the 9th Circuit, to Judges Paez and Noonan, specifically, and to the people of Arizona for making their beloved state into the idiot stepchild of American states in the eyes of our nation and much of the world.