The Glaring And Dangerous Error In The AZ SB 1070 Decision

At page 27 of the decision (PDF), Judge Bolton makes a grievous error that needs to be appealed. It leaves a huge loophole for mischief:

Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which makes it illegal for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. A.R.S. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States.Id. The United States asserts that this provision is preempted as an impermissible regulation of immigration and that the provision violates the dormant Commerce Clause. (Pl.’s Mot. at 44- 46.)18

[MORE . . ]

a. Regulation of Immigration

The “[p]ower to regulate immigration is unquestionably exclusively a federal power.” De Canas, 424 U.S. at 354. The regulation of immigration is “essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.”Id. at 355. “[T]he fact that aliens are the subject of a state statute does not render it a regulation of immigration.”Id. The United States argues that “to the extent Section 5 is not a restriction on interstate movement, it is necessarily a restriction on unlawful entry into the United States.” (Pl.’s Mot. at 45.)

A.R.S. § 13-2929 does not attempt to regulate who should or should not be admitted into the United States, and it does not regulate the conditions under which legal entrants may remain in the United States. See De Canas, 424 U.S. at 355. Therefore, the Court concludes that the United States is not likely to succeed on its claim that A.R.S. § 13-2929 is an impermissible regulation of immigration.

This is absurd reasoning. This is an attempt by Arizona to unilaterally manage the enforcement of immigration laws in Arizona. Indeed, it is expressly such an attempt. As the Court acknowledges the law makes it illegal to "transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona." This is inextricably intertwined with immigration enforcement Indeed, I would argue that this provision is the most egregiously encroaching on the federal scheme.

This part of the decision is indefensible. The federal government must seek an emergency appeal of this part of the ruling.

Speaking for me only

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    vast majority for allowing (5.00 / 0) (#23)
    by Capt Howdy on Wed Jul 28, 2010 at 04:26:58 PM EST
    illegals to stay.

    Eighty-one percent of people questioned in the poll say they support creating a program that would allow illegal immigrants already living in the U.S. for a number of years to stay here and apply to legally remain in this country permanently if they had a job and paid back taxes, with 19 percent opposed to such a plan.

    Just listened to the AZ governor (none / 0) (#1)
    by Militarytracy on Wed Jul 28, 2010 at 01:48:29 PM EST
    She calls this a bump in the road.  And she also said that the Feds got relief to not do their jobs.

    Brewer is really startin' to bug me... (none / 0) (#2)
    by kdog on Wed Jul 28, 2010 at 02:06:50 PM EST
    and I've got the precious papers!  :)

    She does realize one of the primary functions of the feds, part of their "job", is to preserve and protect individual liberty...right?  


    She is filing an immediate appeal (none / 0) (#5)
    by Militarytracy on Wed Jul 28, 2010 at 02:12:36 PM EST
    she says.  And Pearce says that he is begging for a fist fight in the U.S. Supreme Court because he will win in a 5 to 4 decision.  He claims that he wrote the law in such a way as to induce such a fight going all the way to the Supreme Court.

    Except he didn't write the law. (5.00 / 1) (#22)
    by mexboy on Wed Jul 28, 2010 at 04:23:17 PM EST
    It was written by FAIR (hate group according to SPLC) lawyer, Kris Kobach.

    And now he's yammering about (none / 0) (#6)
    by Militarytracy on Wed Jul 28, 2010 at 02:18:26 PM EST
    State's Rights.

    Listening to Jeffrey Toobin now (none / 0) (#7)
    by Militarytracy on Wed Jul 28, 2010 at 02:22:30 PM EST
    He says that Roberts and Alito are Conservatives but they are also strong Federalists soooooo, maybe not so cut and dry as Pearce claims.

    Just Don't (none / 0) (#9)
    by Militarytracy on Wed Jul 28, 2010 at 02:32:02 PM EST
    David Vitter has thrown himself on the martyr sacrificial altar of political Twitter.

    He will keep up efforts to protect rights to govern as a state.


    States rights..........dog whistle (5.00 / 2) (#10)
    by Militarytracy on Wed Jul 28, 2010 at 02:33:45 PM EST
    the burning of the crosses crowd in for a feeding, and hopefully a few donations and votes.

    Me thinks... (none / 0) (#11)
    by kdog on Wed Jul 28, 2010 at 02:40:31 PM EST
    Pearce and Brewer are itchin' for 15 more minutes of infamy/fame, more than anything.

    I hope this doesn't come down to the old Supreme Court 5-4 coin flip.


    I don't know enough about law (none / 0) (#13)
    by Militarytracy on Wed Jul 28, 2010 at 02:44:14 PM EST
    to do anything more than watch the show.  I can never tell if someone is only talking smack.

    Brewer does nothing but (5.00 / 1) (#16)
    by gyrfalcon on Wed Jul 28, 2010 at 02:50:44 PM EST
    talk smack.  She's also quite clueless about the legal ins and outs of all this.  I heard her interviewed on Fox the evening after the first day of arguments in the case, after she'd spent the day listening in court, and she couldn't answer even the most superficial questions about what had gone on.

    It's no crime not to be an attorney and be able to follow the arguments (lord knows I can't) but just bear it in mind when forced to listen to her on the subject.

    She also talks smack really very disrespectfully about Obama, even as she's asking for his help, in a way that honestly makes me cringe, though I'm surely no fan of treating presidents with kid gloves.  But she repeatedly goes over the line with it, IMO, for which her constituents absolutely adore her right now.


    IMO (none / 0) (#14)
    by nyjets on Wed Jul 28, 2010 at 02:44:34 PM EST
    It should be to protect the liberty of American citizens. Not 'undocumented' immigrants.

    I am a citizen, but to many I look undocumented (5.00 / 4) (#24)
    by mexboy on Wed Jul 28, 2010 at 04:31:14 PM EST
    How are you going to protect my rights? Or is it to protect the rights of those who look "right"?

    Should I and millions of other citizens have the extra burden of carrying our passports while those who have the right look don't have to? And if I forget my papers and get arrested and jailed until someone can bring my passport  to bail me out, is that okay with you?


    Honestly (none / 0) (#28)
    by nyjets on Wed Jul 28, 2010 at 06:42:15 PM EST
    As it stands, everybody may have to carry papers. The simple fact of the matter is 'undocumented' immigrants are a major problem for the economy. We are loosing jobs via outsourcing and via 'undocumented' immigrants. It may be a 'burden' to carry a passport but we have to do something if we are going to protect American citizens and their jobs.

    That's just not true. (5.00 / 1) (#29)
    by mexboy on Wed Jul 28, 2010 at 07:52:55 PM EST
    According to the NY times undocumented immigrants are subsidizing SS with about 7 billion dollars a year. Money they will never ever collect on. That is an asset to the economy, not a burden.
    NY Times

    Other myths.

    Saying that citizens being singled out to carry documents based on their skin color is a "burden" misses the entire point I was making.


    OTOH (1.00 / 1) (#35)
    by nyjets on Wed Jul 28, 2010 at 09:47:10 PM EST
    When you consider the fact that
    1. Job loses to 'undocumented' immigrants
    2. Money that is pumped out of the country when they send the money to the country of origin
    3. Drain on social services. The fact is that most undocumented immigrants are paid under the table. THey also strain the local school system because undocumented immigrants usually do not pay property taxes that go to pay for the schools.

    Undocumented immigrants are a drain on the economy.

    Don't be silly (none / 0) (#37)
    by gyrfalcon on Wed Jul 28, 2010 at 11:12:56 PM EST
    Of course they pay property taxes.  Nobody asks you if you're a legal resident when you buy a house, nor does the town ask when they sent you your property tax bill.

    In most cases anyway, these folks will be renters, so the landlord pays the property tax, which he/she includes in calculating the rent.

    If illegals weren't available to do some kinds of work in this country, the employers would for sure have to offer a great deal more for it to attract Americans-- if they could attract them at all.  And then you'd have a bunch of these business go under.  The only way many of the small dairy farmers survive is with illegals doing the drudge work.  That doesn't make it right, but these farms are perpetually on the edge of disaster and many absolutely would go under without that cheap labor because few farm kids want to stay on the family farm to do the work.  Why would they?

    I'd like to see statistics on how many illegals are being paid "under the table."  We supposedly have 20 million of them right now in the country.  I very much doubt there are 20 million jobs, or 10 million or 5 million, where you can get paid "under the table."

    Most of these folks have either stolen or made up SS numbers, which is all you need to get a paycheck and have taxes taken out of it.

    Better stop listening to Rush and start thinking.


    The federal Government also issues... (5.00 / 1) (#41)
    by mexboy on Thu Jul 29, 2010 at 04:38:10 AM EST
    ... Individual Taxpayer Identification Numbers to undocumented workers.

    An ITIN does not identify the person paying the taxes and therefore that person has  no right to receive SS benefits from the money they pay into the system.



    Problem is (none / 0) (#42)
    by nyjets on Thu Jul 29, 2010 at 05:56:52 AM EST
    The vast majority of jobs held by 'undocumented' are jobs that American citizens would do. Very few are of the 'Americans will not do them' variety. These small business that would go under without cheap labor are few and far between.
    Most undocumented do not own property or for that matter even pay rent. One way they stay under the radar is by living with legal immigrants or family members who live in this country legally. The point is,compared to American citizens, they do not pay their fair share of property taxes, putting a strain on the school system.

    So is sounds (5.00 / 1) (#43)
    by dead dancer on Thu Jul 29, 2010 at 07:52:24 AM EST
    like time we quit financing schools via property taxes. Never made sense to me that I was paying school taxes. Maybe it was for the kids i didn't know i had!

    Do you eat food? (none / 0) (#44)
    by nycstray on Thu Jul 29, 2010 at 11:58:26 AM EST
    Might want to think twice the next time you sit down to a meal about where your food came from. especially if you eat 'cheap' food from big box stores . . .

    You got some (none / 0) (#45)
    by gyrfalcon on Thu Jul 29, 2010 at 12:06:15 PM EST
    links to statistics for those assertions?

    Man, you're carrying around quite a load of stereotypes.


    "subsidizing social security" (none / 0) (#36)
    by diogenes on Wed Jul 28, 2010 at 09:59:40 PM EST
    You can only subsidize social security if you aren't paid under the table (i.e. day laborer) and if you have a social security number under which the tax is paid (hopefully not a stolen one).  
    If the undocumented are such a boon to the economy then let the Democrats run on an "open borders" platform in 2010.

    Honestly , another take (5.00 / 1) (#30)
    by christinep on Wed Jul 28, 2010 at 07:58:01 PM EST
    "The fact of the matter"...seems to be mostly stated opinion. Outsourcing does not equal people-from-Mexico-coming-to-take-our-jobs-away. The statement of supposed fact essentially pulls that "fact" out of who knows where. Seriously, ny, take a deep breath and quell the fear.

    When the Constitution was written (none / 0) (#47)
    by Chuck0 on Fri Jul 30, 2010 at 07:48:13 AM EST
    I kind of doubt there was any such thing as an "undocumented immigrant." I believe the Bill of Rights was written for human beings. At the time, pretty much everyone here was "undocumented." You should be ashamed of yourself.

    I read somewhere on the usual blogs this AM (none / 0) (#17)
    by magster on Wed Jul 28, 2010 at 03:01:54 PM EST
    that Brewer's chief of staff has a big financial stake in a private prison business that has a lot to gain by the detention of numerous supposed illegal aliens.

    True...but who cares (none / 0) (#18)
    by coast on Wed Jul 28, 2010 at 03:06:52 PM EST
    Do you want a list of other politicians who have made money off of laws that they have passed.  It may take a while since the list is very long.

    That would be CCA... (none / 0) (#19)
    by kdog on Wed Jul 28, 2010 at 03:22:23 PM EST
    Corrections Corporation of America..."the nation's leading provider of correctional solutions to federal, state and local government." according to their website.  According to me, the nation's leading welfare queen furthering fascist tyranny.

    That didn't make a lot of sense (none / 0) (#3)
    by MKS on Wed Jul 28, 2010 at 02:08:58 PM EST
    given the other portions of the ruling.

    Could it be that that portion of the statute was not the subject of as much attention as the other portions enjoined?

    And people say that juries (none / 0) (#4)
    by MKS on Wed Jul 28, 2010 at 02:10:47 PM EST
    are unpredictable.

    It is quirks in rulings like this that make judges more unpredictable imo.

    how does one get to be (none / 0) (#8)
    by NYShooter on Wed Jul 28, 2010 at 02:23:03 PM EST
    "in violation of a criminal offense?"

    That just shows that the judge rushed (5.00 / 1) (#25)
    by Peter G on Wed Jul 28, 2010 at 04:53:24 PM EST
    the opinion out, without enough "let-it-lie, then edit again" to make it as good as it could be.  As she kind of had to, with what would otherwise have been tomorrow's effective date.  Probably goes both for the word choice and for the legal reasoning.  My nickle is on cross-appeals (both sides, that is) to the Ninth Circuit, with a stay in the meanwhile.

    Incomprehensible (none / 0) (#27)
    by NYShooter on Wed Jul 28, 2010 at 05:46:49 PM EST

    From syntax, through grammar, and onto construction her tome is almost impossible to decipher. I see places where both sides could conclude opposite meanings.

    I hope there will be a tape: after every paragraph the judge admonishes attorneys, " Well, you know what I meant!"


    In this day and age? (none / 0) (#12)
    by kdog on Wed Jul 28, 2010 at 02:41:32 PM EST
    Breathing should do it.

    Um...break a law (n/t) (none / 0) (#15)
    by coast on Wed Jul 28, 2010 at 02:48:16 PM EST
    Um (none / 0) (#20)
    by NYShooter on Wed Jul 28, 2010 at 03:32:57 PM EST
    that would be: in violation of a law.

    Try again


    take a look at this angle: (none / 0) (#21)
    by numike on Wed Jul 28, 2010 at 04:10:29 PM EST
     OT, from the Progress Report (Center for American Progress):" WINNERS AND LOSERS: As the SB-1070 legal battle rages on, a growing list of stakeholders is taking shape. A local Arizona TV news station recently discovered that "two of Brewer's top advisers have connections" to private prison giant Corrections Corporation of America (CCA). Paul Senseman, Brewer's deputy chief of staff, is a former lobbyist for CCA and his wife continues to lobby for the company. Chuck Coughlin, who leads her re-election campaign, chaired her transition into the governorship, and is one of the governor's policy advisers, also happens to be the president of HighGround Public Affairs Consultants, which lobbies for CCA. Brewer's connections to the CCA are significant because the company currently bills $11 million a month to the state of Arizona to house immigrant detainees, and if SB-1070 is successfully implemented, its profits would soar as it would take responsibility for imprisoning immigrants arrested by Arizona police. Brewer herself, who has essentially built her campaign around the law, has also benefited from signing off on SB-1070 in terms of her local popularity. So far, Brewer has raised over $1,104,935 just for her legal defense fund. However, Brewer's star may not shine forever. Arizona public schools are experiencing a drop in enrollment which could account for a drop in millions of dollars of federal funding. Arizona's Office of Tourism is reporting a $12 million loss in canceled hotels and reservations."

    It would seem that SB 1070 may be partly about utilizing nativism to increase private prison profits.

    Not to mention (5.00 / 0) (#26)
    by gyrfalcon on Wed Jul 28, 2010 at 05:36:14 PM EST
    if the illegals move out in droves, or get incarcerated, she's going to be surprised at the extent to which income and sales tax revenues drop.

    One of the things that bugs me the most is that these hideously exploited illegals end up paying a large chunk of their meager incomes to taxes and particularly to Social Security, which they will never reap any benefit from.

    And then these nativists, like one Republican Arizona state rep I just heard on Matthews, go around screaming that "these people" come to the U.S. for the "free benefits."

    Matthews totally lost his temper with this guy and pronounced him a "hopeless right-winger."


    SB 1070 (none / 0) (#31)
    by stewlaw2009 on Wed Jul 28, 2010 at 08:55:48 PM EST
    I have to say - you're really showing your legal and political bias with your critique of Bolton's decision on alien smuggling.

    I mean, you do realize that this part of the law is about alien smuggling, and an organized business conspiracy to smuggle aliens?

    You can call her reasoning "absurd" and prone to "mischief" but it would be better if you actually made an argument of the kind you made earlier.

    Otherwise, we might as well stop reading...

    SB 1070 Alien Smuggling (none / 0) (#32)
    by stewlaw2009 on Wed Jul 28, 2010 at 09:01:36 PM EST
    Your text --

    "Indeed, I would argue that this provision is the most egregiously encroaching on the federal scheme.

    This part of the decision is indefensible. The federal government must seek an emergency appeal of this part of the ruling."

    You would argue that?  Okay, so why don't you actually argue it, or should we assume that your argument is "implied," and "pre-empts" all

    Is there federal law that expressly or implicitly prohibits complementary or concurrent state action on smuggling

    Alien smuggling is not synonymous with "unlawful presence" - which is what you seem to be suggesting -  right?

    When directed at immigration (none / 0) (#34)
    by Big Tent Democrat on Wed Jul 28, 2010 at 09:28:12 PM EST
    there is. See Hines.

    Same in VT (none / 0) (#38)
    by gyrfalcon on Wed Jul 28, 2010 at 11:21:48 PM EST
    Including our outgoing (finally!) Republican governor Douglas, who's a jerk but a throwback to the "moderate" Republicans of the old days.

    We had a nasty, ugly fight some years ago over the civil unions thing, but it seems to have ultimately embarrassed a lot of people who initially supported the opposition, and there was almost no in-state fuss when the legislature passed marriage equality-- over the dumbass governor's oh-so-pious veto.

    VT used to be a solid Republican state until fairly recently, but the older farmers I've talked to were so horrified when the nutjobs and evangelical extremists started to dominate the national party, they just turned their back on it in disgust.  (I'm proud to say we're apparently the least religious state in the union, though we do cling to our hunting rifles...)

    We don't do voter party identification in this state, which I think actually helps a lot because nobody has a really strong party identification they have to defend and rationalize.

    And hey, we have the first and only avowed socialist senator.  How cool is that?

    What I want to know is (none / 0) (#46)
    by gyrfalcon on Thu Jul 29, 2010 at 12:10:19 PM EST
    why our states are so different, and particularly why Vermonters' attitudes are so many lightyears apart from those of other primarily rural states, even our northern New England neighbors like NH and Maine.

    I drove all through Vermont (none / 0) (#48)
    by Chuck0 on Fri Jul 30, 2010 at 07:50:45 AM EST
    over this past 4th of July wknd. I loved it there. I really liked Montpelier. I wish I could find work there (XML development) and come up.