flipper wrote:
On Mon, 24 May 2010 16:53:27 -0700, Jim Thompson
wrote:


On Mon, 24 May 2010 18:43:28 -0500, flipper wrote:


On Mon, 24 May 2010 09:41:50 -0700, Jim Thompson
wrote:


On Fri, 07 May 2010 10:11:47 -0700, Jim Thompson
wrote:


San Fransicko, Californica, pontificates with boycotts, but reality
sets in....

http://www.kcbs.com/bayareanews/Sanctuary-City-/6993538

...Jim Thompson

And they're (no surprise) hypocrites....

http://www.americanpatrol.com/REFERE...34b-CA_PC.html

...Jim Thompson

I'm not sure that statute, despite being 'still on the books', is
operational as it was part of Prop 187, which was ruled
unconstitutional by the Federal District Court and placed under
'permanent injunction'.

At least that's how some are 'reporting' it. What really happened is
the "Illegal Immigration Reform and Immigrant Responsibility Act of
1996" ( IIRIRA) was passed (alleged Supremacy Clause conflict) and the
suit was *mediated*, so it's 'possible' that section remained after
the 'mediation' but I doubt it.

However, in investigating the IIRIRA I've come to the conclusion it's
likely (not foregone conclusion) the Court will rule the Arizona
statute unconstitutional because the IIRIRA specifically provides for
the Fed to enter into 'agreements' with state and local officials for
the purpose of enforcing federal immigration law, placing requirements
on those officials, and that will, no doubt, invoke another Supremacy
Clause argument.

In particular: "SEC. 133. ACCEPTANCE OF STATE SERVICES TO CARRY OUT
IMMIGRATION ENFORCEMENT.

‘‘(g)(1) Notwithstanding section 1342 of title 31, United States
Code, the Attorney General may enter into a written agreement
with a State, or any political subdivision of a State, pursuant
to which an officer or employee of the State or subdivision, who
is determined by the Attorney General to be qualified to perform
a function of an immigration officer in relation to the investigation,
apprehension, or detention of aliens in the United States (including
the transportation of such aliens across State lines to detention
centers), may carry out such function at the expense of the State
or political subdivision and to the extent consistent with State
and local law.
‘‘(2) An agreement under this subsection shall require that
an officer or employee of a State or political subdivision of a State
performing a function under the agreement shall have knowledge
of, and adhere to, Federal law relating to the function, and shall
contain a written certification that the officers or employees
performing the function under the agreement have received adequate
training regarding the enforcement of relevant Federal
immigration laws......."

As sympathetic as I am to Arizona's problem I don't see an obvious way
around the Supremacy Clause issue, at least not when one considers how
the Court traditionally interprets it and the "Naturalization" clause.
The problem lies in this Administration and Congress's disregard for
their Constitutional duty. For example, rather than indignant
pontification Obama could have said he was directing ICE to
investigate increasing the number of cooperative agreements, and
training, with local authorities: something he could actually do
legally, and without 'taking over' half the country, but I suppose
that's not nearly so much fun as 'remaking America."

We'll just throw 'em in jail :-)


You'll throw 'who' in jail for 'what'?

If you mean for 'being in the country (State) illegally' the argument
would be you have the same problem because the 'untrained and not a
party to the immigration enforcement agreement (per SEC. 133)'
officials cannot make a 'legal' determination of status so you have no
basis upon which to adjudicate a 'crime' has been committed even *if*
your making of a Federal violation also a State 'crime' would pass
Constitutional muster. I.E. You cannot 'convict' because no
State/local official/court is empowered to determine immigration
status, without which there is no State 'crime' either, and without a
conviction you cannot incarcerate.

In jail for what? Being here 'illegally'. Says who? The State Court.
Sorry, only the Federal government can adjudicate immigration status.

As for the State 'crime' I would argue, were I a Federal Attorney on
the case, it is nonsensical to 'criminalize' something you have no
power to adjudicate.

The argument would further stipulate that your only legal basis for
holding them at all is as a duly authorized, per SEC. 133, 'agent' of
the Federal government pursuant to presentation to ICE.

Ok, let's flip this to the other side now.

Arizona *does* have SEC. 133 'agreements' with the Fed, meaning they
must have some number of 'trained agents'. We could, theoretically at
least, require that any 'immigration suspect' be processed by one and
then transferred to ICE, or released as appropriate. The question
would then be if a 'non trained officer' can legally make a
'reasonable suspicion' detention (which would already be in effect if
we limited the case to already detained for a 'normal crime or cause')
prior to being processed by the 'official agent' and I'm not sure
that's terribly different than any other 'crime' in which an officer
may detain but the D.A. or a Grand Jury decides whether to indict and
prosecute, or not.

And an officer is certainly not 'trained' in every nuance of criminal
law. He makes a 'reasonable' determination but not a 'final
adjudication' or else there'd be no need for courts.

One problem I see is the State is not (explicitly anyway) authorized
to delegate powers beyond what's stated in SEC. 133.

That, btw, is what Arizona is trying to skirt by making it also a
'State crime' but, as I've already mentioned, I have problems with
that.





...Jim Thompson

I think you have problems with the whole concept.. You are
taking this too personal. Any specific reason you would like to share
with us?