WSJ Analysis: SB 1070 unconstitutional

Posted by AzBlueMeanie:

Rupert Murdoch's Wall Street Journal published a news analysis of SB 1070 and concluded that the law is unconstitutional. Constitutional Challenges to Arizona Immigration Law on Their Way – Law Blog – WSJ:

Is Arizona’s new immigration law constitutional?

We hit the question briefly on Friday in this post, and the initial answer to the question seemed to be no, that in passing an immigration law, Arizona was improperly stepping into the domain of the federal government.

The NYT’s John Schwartz on Wednesday takes a deeper look at the question. His finding: that, yes, the law probably — though not definitely — runs violates preemption principles, and is therefore unconstitutional.

“The law is clearly pre-empted by federal law under Supreme Court precedents,” said UC Irvine’s Erwin Chemerinsky.

For decades, the role of controlling immigration and enforcing immigration laws has fallen to the federal government, not the states. And the law will likely fail on those grounds, said Chemerinsky.

Others, however, were less certain of the law’s fate.

“My view of the constitutional question is that it is unconstitutional,” said UCLA Law’s Hiroshi Motomura. “But it’s a far cry from predicting empirically what a judge who actually gets this case will do.”

Supporters of SB 1070 are counting on the conservative activist Roberts' Supreme Court to rewrite the Constitution from the bench. Judicial restraint, stare decisis and the rule of law are for everyone else.

Proponents of the law will likely, according to the NYT article, point out a theory called “concurrent enforcement” — which in some instances allows a state law to lie alongside a federal law without conflicting.

Kris W. Kobach, the law professor at the University of Missouri-Kansas City School of Law who helped write the Arizona law, among others around the country, the key issue is “concurrent enforcement” — that is, whether the state law parallels federal law without conflict.

Because the Arizona statute draws directly on federal statutes concerning documentation and other issues, “the Arizona law is perfect concurrent enforcement,” Professor Kobach said.

There's the author of SB 1070, Chris Kobach, again. Arizona immigration law was crafted by rising star activist (Arizona Republic headline):

While the vision belonged to Sen. Russell Pearce, many of the words were crafted by Kansas attorney Kris Kobach, an authority on immigration enforcement with a growing national reputation.

* * *

Kobach, who has an Ivy League education and ties to a controversial Washington, D.C.-based anti-immigration group, has been writing and defending city and state immigration laws since 2001. But it's his efforts – and successes – in Arizona that have cemented his reputation as an immigration "expert." [my emphasis]

Arizona has become his test case to prove that ratcheting up laws that crack down on illegal immigration will motivate illegal immigrants to leave on their own.

* * *

In 2001, just days after 9/11, Kobach got a job as chief adviser on immigration law and border security to John Ashcroft, who was in his first year as U.S. attorney general. Kobach oversaw Department of Justice efforts to tighten border security, including the design and implementation of a system that requires foreign nationals from certain nations to register with a program that tracks their movements in and out of the U.S.

While at the Justice Department, Kobach began making contacts with state and local government officials.

Kobach left the Justice Department in 2003 and now teaches constitutional and immigration law at the University of Missouri-Kansas City School of Law. [Perhaps his students should demand a refund of their tuition. See below.]

* * *

Kobach's work for the Justice Department got him in the door. Joining the non-profit Washington, D.C.-based Immigration Reform Law Institute, the public-interest law affiliate of the Federation for American Immigration Reform (FAIR), earned him a seat at the table. FAIR, according to its website, seeks to improve border security, stop illegal immigration and decrease the number of legal immigrants allowed into the country.

The Southern Poverty Law Center, a non-profit Alabama-based civil-rights organization, has named FAIR among the 932 U.S. organizations it describes as "hate groups," citing FAIR's stance on immigration.

FAIR boasts 250,000 supporters, a very public profile and a national network of grass-roots subgroups.

In 2004, Kobach worked on a FAIR lawsuit against a Kansas law that gave children of undocumented immigrants in-state college tuition. The lawsuit was dismissed, but the work started to roll in.

Several cities hired him to help defend ordinances prohibiting landlords from renting to illegal immigrants.

He also, for free, helps state legislators craft laws.

* * *

[Kobach] was contacted by the Maricopa County Attorney's Office to help defend the state's Human Smuggling Act in court [in 2006]. Former County Attorney Andrew Thomas used the 2004 law to charge illegal immigrants as co-conspirators with the people who brought them into the country. The practice was upheld in court.

Kobach said he was first contacted by Pearce to help draft the 2007 law that makes it illegal to knowingly hire undocumented workers.

Kobach was later hired by the Arizona Attorney General's Office to help defend the law, which was upheld by the Court of Appeals for the 9th Circuit. The Solicitor General's Office [recently] urged the U.S. Supreme Court to hear the employer-sanctions case.

Administration opposes Arizona law that penalizes hiring of illegal immigrants "The Obama administration on Friday urged the Supreme Court to review and set aside an Arizona law that sanctions employers who hire illegal immigrants, saying it would disrupt the "careful balance" that Congress struck in federal immigration law." The administration, in a brief submitted by Acting Solicitor General Neal Katyal, said federal law should preempt state efforts.

It's nothing new for advocacy groups – such as those involved with gun rights, abortion or immigration – to accomplish their goals behind the scenes, writing legislation themselves and backing lawmakers willing to introduce it. Sen. Russell Pearce is just a tool for this anti-immigrant hate group.

Their websites offer "model law" for other states to duplicate. They hold conferences for lawmakers to talk about specific issues. They offer "experts" such as Kobach to help draft laws.

But critics say Arizona's law reflects far more than the wishes of constituents. They say the law is the latest in a national effort by anti-illegal-immigration groups to change public policies using the exact legal wording they want, one state at a time. The groups, critics say, are using Arizona to serve their own greater goals.

Suman Raghunathan, immigration policy specialist with the Progressive States Network, said recent immigration law efforts in Arizona and elsewhere have been the direct result of a targeted effort from Kobach and anti-illegal-immigration groups.

"I think people have no idea that these are very well financed, well organized, planned efforts," she said.

[A]rizona has been made the nation's model state. It was the first state to require an ID to register to vote, the first to require employers to use E-Verify to assure employees were in the country legally and a leader in denying benefits to illegal immigrants. Now, under the new law, it's the first to make it a state crime to be in the country illegally.

* * *

Next year, Pearce has said, he will propose a measure that would make Arizona the first state to stop the practice of giving citizenship to children who are born in the United States to illegal-immigrant parents. Ending the practice of granting citizenship to "anchor babies," as they are sometimes called, is one of FAIR's legislative goals and is supported by Kobach.

This is also unconstitutional. Kobach should not be teaching anyone.

Dante Atkins gets it exactly right at Daily Kos: Rand Paul hates the Constitution:

From the Los Angeles Times Blog:

[Rand Paul] The Republican candidate for the U.S. Senate from Kentucky said in the interview done shortly after his primary victory last week that the U.S. shouldn't provide an easy route to citizenship. The interview was done with RT, an English-language station in Russia.

Legislation dubbed the Birthright Citizenship Act was introduced in the House last year, seeking to prevent citizenship to babies born to illegal immigrants even though the 14th Amendment to the Constitution guarantees citizenship to everyone born in the U.S.

Memo to nativist Republicans: the issue of birthright citizenship under the 14th amendment was decided by the Supreme Court over a century ago. If you're going to undo it, try using the appropriate process: a Constitutional amendment. Good luck.

Arizona should say "enough!" to being an experimental laboratory for tools like Sen. Russell Pearce carrying water for right-wing billionaire-funded think tanks pushing their extremist "model" legislation. Too often this has resulted in needless litigation costing the state millions of dollars in defending laws that more often than not have been struck down as unconstitutional or a violation of law.