On Sun, 30 May 2010 02:37:48 -0500, flipper wrote:

On Sat, 29 May 2010 16:37:50 -0700, Jim Thompson
wrote:


I agree.

Interesting to note that's how I came up with an opinion about the
likelihood of the Court ruling contrary to what I had thought before
investigating it. It isn't that I 'like it' or 'happy' with illegal
immigration and the Federal government's failure to properly fulfill
it's Constitutional duties.


I agree, for both State and Federal elections.


No argument as long as we also recognize that legislation must be both
State and Federally Constitutional in order to be 'law'.



No argument (and I never once argued any 'discrimination' case) as
long as the 'law' is Constitutional and, as I've explained before, the
Court's ruling on prop 187 suggests to me they will not consider it so
because immigration law is a Federal, not State, power.


One could argue that is precisely what Arizona is attempting to do in
writing 'law' that 'ignores' (or contravenes) Federal Law because they
are fed up, pardon the pun, with the dysfunctional politics of
Washington.


The same 'scariness' applies to 'free to make up' Constitutional law.

Of course, there are people who argue the SCOTUS has been doing that
for years.


The IIRIRA specifically states 'who' is authorized to investigate
immigration status (and the 'rules') and I believe the Court will see
the Arizona statute as a conscious and deliberate attempt to
contravene those requirements which, I believe, raises a Supremacy
Clause issue.



States have never been able to write law in contradiction to
Constitutionally granted Federal powers. That is the Supremacy Clause.

As I explained before, another potential 'problem' I see with writing
a State law 'criminalizing' immigration status is that the State has
no power to determine immigration status, nor to 'interpret' Federal
Law, so even if you have reasonable cause to 'suspect' you cannot
'convict' in State court. At the very least not without the
'cooperation' of ICE (such as to 'testify' they have made a
determination) but, as a practical matter, if ICE determines they're
in the country illegally the offender will be, in theory, deported and
unable to appear for the State 'trial'. But if ICE determines they may
stay, for whatever reason, then, by golly, they're here 'legally'
regardless of State Law. ICE is 'the controlling authority'.

On the other hand, if ICE simply refuses to 'cooperate', and the State
has no power to compel, the State is stuck with either letting them go
or permanent detention of, or some other draconian act against,
'suspects' never proved 'guilty', nor 'triable', until if and when
'ICE comes to their senses'.

None of those are tenable and I suspect the (Federal) Court will frown
on 'law' that cannot be adjudicated by any agency of the government
that wrote it.

Of course, Arizona has no intent to State prosecute. That's a
manufactured 'legalism' designed to expand the officers 'authorized'
to investigate and detain for ICE, except IIRIRA Federal law does not
allow it.


I suspect the Court will also notice the 'cleverness' but it usually
frowns on clever "schemes" (as the judge called prop 187) intended to
circumvent the Constitution and Federal law, as it seems that one is
expressly designed to do.

Frankly, I'm sympathetic to, on the surface at least, the seeming
populist practicality of "if you won't do it then we will" but I don't
see any such exception mentioned in the Supremacy Clause. Which is not
to say the SCOTUS might not just 'invent' it but divesting Federal
powers has not been the general direction for well over 100 years.


Glad to see you're such a legal exspurt ;-)

The 9th Circuit Court of Fairies will, of course, rule against
Arizona. That's a good thing... we can go straight to SCOTUS.

...Jim Thompson
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