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  #1  
Old 04-11-2011, 01:36 PM
Richard Parker Richard Parker is offline
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Ninth Circuit Upholds Injunction Against AZ Immigration Law

Hot off the docket: http://www.ca9.uscourts.gov/datastor...45_opinion.pdf

So this panel at least thinks that key parts of the law are likely preempted. Are they right? I think they are, as this is what I predicted.

More thoughts from me, and minor gloating directed at Bricker, to come, but I thought i would solicit feedback first.

Eta: title is unfortunate typo. Bad iPhone, bad.

Last edited by Richard Parker; 04-11-2011 at 01:37 PM..
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  #2  
Old 04-11-2011, 01:44 PM
Czarcasm Czarcasm is online now
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[Mod mod]Changed "lawn" to "law" in title. Will change it back if OP was really about keeping those pesky furriners off his grass.[Mod mod]

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Old 04-11-2011, 02:05 PM
emacknight emacknight is offline
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Quote:
Originally Posted by Richard Parker View Post
Hot off the docket: http://www.ca9.uscourts.gov/datastor...45_opinion.pdf

So this panel at least thinks that key parts of the law are likely preempted. Are they right? I think they are, as this is what I predicted.

More thoughts from me, and minor gloating directed at Bricker, to come, but I thought i would solicit feedback first.

Eta: title is unfortunate typo. Bad iPhone, bad.
Could you translate that into moron for me? And maybe condense it down a bit? I too would like to gloat.
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Old 04-11-2011, 02:08 PM
Morgenstern Morgenstern is offline
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pdf warning advisible.

Last edited by Morgenstern; 04-11-2011 at 02:08 PM..
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  #5  
Old 04-11-2011, 02:12 PM
Richard Parker Richard Parker is offline
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It says PDF right in the link!

Emack: the gist is that they agree with the district court that the federal government's framework for dealing with immigration prevents states from taking matters into their own hands. But this is just a preliminary injunction, meaning they could change their mind once the whole thing is fully litigated.
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  #6  
Old 04-11-2011, 02:13 PM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by emacknight View Post
Could you translate that into moron for me? And maybe condense it down a bit? I too would like to gloat.
IANAL but from the following linked article this ruling upholds the lower court ruling.

Quote:
(From the Decision)

The relevant provisions of S.B. 1070 facially conflict with Congressional intent.

...

We stress that the question before us is not, as Arizona has portrayed, whether state and local law enforcement officials can apply the statute in a constitutional way... This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.

...

By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents.

SOURCE: http://www.tucsonsentinel.com/local/...sb1070_appeals
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  #7  
Old 04-11-2011, 02:25 PM
Diogenes the Cynic Diogenes the Cynic is offline
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Washington Post story.

Evidently, this is not technically a ruling on the Constitutionality of the law, per se, but a ruling on whether the judge had a right to impose an injunction. Still, it has the effect of continuing to prevent the law from being enforced..
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Old 04-11-2011, 08:24 PM
Bricker Bricker is offline
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1. The Ninth Circuit is the most reversed federal circuit.

2. I have always acknowledged that the weakest point on this law -- or, if your prefer, the point on which it's most vulnerable to being overturned -- is federal preemption. For example, see this post::

Quote:
Originally Posted by Bricker View Post
Well, if it gets overturned on the basis over preemption, I'll be mildly surprised, but not shocked to my very core. I regard the preemption argument as wrong but tenable.

If it's overturned because of some Equal Protection-type claim, I will humbly and sincerely eat helping after helping of crow.
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Old 04-11-2011, 08:28 PM
Diogenes the Cynic Diogenes the Cynic is offline
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The law hasn't been ruled on at all per se. Only the injunction.

The fact that thge 9th is often overturned is emblematic of nothing but the different partisan make of the the 9th and the Supreme Court. I'm pretty sure that if this gets to SCOTUS, the decision will break down along predictable party lines.
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Old 04-12-2011, 06:57 AM
Richard Parker Richard Parker is offline
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1. What happens to the Ninth Circuit's record if you adjust for Reinhardt not being on the panel and per capita size? (I'm kidding, mostly.)

2. Oh, I was thinking of another quote of yours, Bricker:

Quote:
Originally Posted by Bricker
OK, let's make it interesting -- $100 says that the law survives a pre-emption challenge. It may get scuttled at the district court, but the final judgement (circuit or scotus) will be that it's not pre-empted.

Bet would be a push if Congress passes a new law that might more definitively pre-empt it.

What do you say?
Quote:
Originally Posted by Richard Parker
I would say I cannot ethically take that bet. But I'm happy to simply bet personal honor as the more accurate legal analyst. I'll even give you 3:1 odds.
Quote:
Originally Posted by Bricker
I'll accept your counteroffer. A win for me will give me the right to point out that I'm three times the legal analyst you are. That might be worth more than the $100, come to think of it.
Now, the law was amended after that exchange, I think. So I'm ok with regarding the bet as nullified. And, of course, this is not the final judgment. Which is why my gloating is minor. But let's be clear about your position, which was not one of "I'll be mildly surprised."
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Old 04-12-2011, 08:05 AM
Bricker Bricker is offline
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Quote:
Originally Posted by Richard Parker View Post
1. What happens to the Ninth Circuit's record if you adjust for Reinhardt not being on the panel and per capita size? (I'm kidding, mostly.)

2. Oh, I was thinking of another quote of yours, Bricker:







Now, the law was amended after that exchange, I think. So I'm ok with regarding the bet as nullified. And, of course, this is not the final judgment. Which is why my gloating is minor. But let's be clear about your position, which was not one of "I'll be mildly surprised."
I said "mildly surprised" a month after accepting the bet (May 2010); it's not a recent revision of my estimation in response to the Ninth Circuit's actions.

My position remains the same: I don't believe that this is a legitimate case of federal preemption, and I don't believe the courts will see it that way. I was confident enough to offer a $100 bet, and accept a bet about personal honor as a legal analyst. From my perspective, the change in the law was at best neutral to the issue of federal preemption, and only helped the law's palatibility overall, so I don't wish to consider the bet void on that basis.

But since the change in the law put your side in worse position, I'd be willing to permit you to withdraw from the wager.

Otherwise, I'm good.
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Old 04-12-2011, 08:10 AM
Diogenes the Cynic Diogenes the Cynic is offline
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I wold submit that your confidence is based entirely on knowing that the Supreme Court has a conservative majority and not on the actual merits of the case. If SCOTUS had a liberal majority, you wouldn't be betting.
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Old 04-12-2011, 08:43 AM
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Originally Posted by Diogenes the Cynic View Post
I wold submit that your confidence is based entirely on knowing that the Supreme Court has a conservative majority and not on the actual merits of the case. If SCOTUS had a liberal majority, you wouldn't be betting.
Which "merits" do you mean?

That question probably doesn't matter, because either way, you're right (in a sense, anyway) and wrong (in another sense).

If you're talking about the merits of the federal preemption question, this is not an area of law that always lends itself to utterly clear determinations. Look at American Insurance Association v Garamendi. At issue there was a California law, the Holocaust Victim Insurance Relief Act of 1999, that was intended to allow Holocaust survivors and their families to collect on life insurance payments from policies issued to Holocaust decedents by German insurance companies. Without being able to point to any specific provision of federal law, treaty, or even any statement of an executive brach contrary purpose, the Supreme Court said:

Quote:
California seeks to use an iron fist where the President has consistently chosen kid gloves. The efficacy of the one approach versus the other is beside the point, since preemption turns not on the wisdom of the National Government's policy but on the evidence of conflict. Here, the evidence is more than sufficient to demonstrate that HVIRA stands in the way of the President's diplomatic objectives
But this was a 5-4 decision, and who were the dissenters? Scalia, Thomas, Ginsberg, and Stevens -- hardly "the conservatives" or "the liberals" in a bloc. Justice Ginsburg wrote the dissent, which Stevens, Thomas, and Scalia joined, and she said:
Quote:
Although the federal approach differs from California's, no executive agreement or other formal expression of foreign policy disapproves state disclosure laws like the HVIRA. Absent a clear statement aimed at disclosure requirements by the "one voice" to which courts properly defer in matters of foreign affairs, I would leave intact California's enactment.
It's obvious, I suppose, which approach I feel is correct.

So how are you right? My confidence is based on the current Court's composition, yes, but not as a strict "liberal/conservative" breakout, but on what the justices have said in the past on similar issues. Obviously, if the current Court included O'Connor and Souter, I might sing a different tune.
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Old 04-12-2011, 05:25 PM
Richard Parker Richard Parker is offline
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Quote:
Originally Posted by Bricker View Post
I said "mildly surprised" a month after accepting the bet (May 2010); it's not a recent revision of my estimation in response to the Ninth Circuit's actions.
I incorrectly assumed that the staking of a wager reflected some conviction beyond that which could be described as subjecting you to mild surprise if wrong.

Quote:
Originally Posted by Bricker
My position remains the same: I don't believe that this is a legitimate case of federal preemption, and I don't believe the courts will see it that way. I was confident enough to offer a $100 bet, and accept a bet about personal honor as a legal analyst. From my perspective, the change in the law was at best neutral to the issue of federal preemption, and only helped the law's palatibility overall, so I don't wish to consider the bet void on that basis.
When you say, "I don't believe the courts will see it that way," you're excluding the U.S. District Court for the District of Arizona and the Ninth Circuit Court of Appeals, which seems like an odd definition of "courts." Or do you mean that something about further factual development might change the outcome?

As to the wager, I haven't looked closely at what was changed in the law. We can keep our wager in place regardless, given its somewhat frivolous nature. I strongly suspect something will change before this case sees SCOTUS on final judgment.

______

As to the opinion itself, I don't think they left themselves a lot of leeway for going the other way on final judgment. Certainly Noonan didn't. So I suspect that if neither Congress nor AZ amends something before then, this will see SCOTUS. But there might be cases decided by SCOTUS in the interim that affect the outcome.

Preemption is an interesting issue from a political perspective. In recent years, the conservative wing has been more likely to find preemption than their states-rights tendencies might suggest. I'm thinking in particular of Buckman, in which Rehnquist wrote:

Quote:
Policing fraud against federal agencies is hardly “a field which the States have traditionally occupied,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), such as to warrant a presumption against finding federal pre-emption of a state-law cause of action. To the contrary, the relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law. Cf. Boyle v. United Technologies Corp., 487 U.S. 500, 504—505 (1988) (allowing pre-emption of state law by federal common law where the interests at stake are “uniquely federal” in nature). Here, petitioner’s dealings with the FDA were prompted by the MDA, and the very subject matter of petitioner’s statements were dictated by that statute’s provisions. Accordingly–and in contrast to situations implicating “federalism concerns and the historic primacy of state regulation of matters of health and safety,” Medtronic, 518 U.S., at 485–no presumption against pre-emption obtains in this case.

Given this analytical framework, we hold that the plaintiffs’ state-law fraud-on-the-FDA claims conflict with, and are therefore impliedly pre-empted by federal law.2 The conflict stems from the fact that the federal statutory scheme amply empowers the FDA to punish and deter fraud against the Agency, and that this authority is used by the Agency to achieve a somewhat delicate balance of statutory objectives. The balance sought by the Agency can be skewed by allowing fraud-on-the-FDA claims under state tort law.
A lot of that language applies with even more force to the regulation of immigration, it seems to me. Immigration is clearly a federal concern, not traditionally regulated by states. And the federal government strikes a number of delicate balances with immigration law, not least of which is our foreign policy, another area of particular federal concern.
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Old 04-12-2011, 05:33 PM
Bricker Bricker is offline
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Quote:
Originally Posted by Richard Parker View Post
I incorrectly assumed that the staking of a wager reflected some conviction beyond that which could be described as subjecting you to mild surprise if wrong.
If I'm standing at the craps table, and someone says, "I'll bet you 2 to 1 it's a seven!" then I'll take that bet, even though I would feel only mild surprise if a seven actually comes up.
Quote:
When you say, "I don't believe the courts will see it that way," you're excluding the U.S. District Court for the District of Arizona and the Ninth Circuit Court of Appeals, which seems like an odd definition of "courts." Or do you mean that something about further factual development might change the outcome?
I meant the final judgement rendered by the court system.
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Old 04-25-2012, 10:52 PM
Bricker Bricker is offline
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Supreme Court heard oral arguments today.

Court observers seem to think the Court is leaning towards letting Arizona keep their law. The only area where there seemed to be some sentiment for stomping on them was the trespass -- that is, Arizona making it a crime to be in Arizona if you're an undocumented alien.
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Old 04-25-2012, 11:18 PM
Richard Parker Richard Parker is offline
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Someone should email Scalia a copy of Buckman. Based on the argument, in which he maintains that enforcement priorities have never been the basis for preemption, he seems to have forgotten his participation in that case.

Alas, we're still only at the PI.
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Old 04-28-2012, 12:47 AM
SantaMan SantaMan is offline
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Originally Posted by Bricker View Post
1. The Ninth Circuit is the most reversed federal circuit.
Huh, I thought this was a canard. I had understood that because of its volume, the 9th circuit was both the most overturned and the most reaffirmed, and that percentage wise, they are about on par with other circuits. Am I mistaken?
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Old 04-28-2012, 12:54 AM
SantaMan SantaMan is offline
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http://westreferenceattorneys.com/20...eversal-rates/
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Old 04-28-2012, 08:05 AM
Bricker Bricker is offline
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From your link:

Quote:
The Times points out that while seventy-nine percent may not be unusual in terms of past records, twelve of the reversals this year were unanimous which, it argues, may indicate that the Ninth Circuit is more “often out of step with even the high court’s liberal justices.” But implicit in this remark is an assumption that Supreme Court opinions, even if unanimous, are somehow more “correct” – certainly, a debatable conclusion.
Debate away. But for the purposes of my comment, yes, the Supreme Court is more correct, in that it definitively sets the law of the land. If the discussion revolves around whether a particular legal proposition will ultimately survive, and someone points out the Ninth Circuit opposes it, the fact that the Ninth gets smacked down as often and as thoroughly as it does is certainly relevant for predicting what the ultimate fate will be.

If you wish to argue that there is some other authority, more "right" than SCOTUS, go ahead. My point was simply what the law will end up being. And for that question, yes: Supreme Court opinions are in fact more correct.

Last edited by Bricker; 04-28-2012 at 08:06 AM..
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Old 04-29-2012, 12:43 AM
SantaMan SantaMan is offline
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Originally Posted by Bricker View Post
From your link:
the fact that the Ninth gets smacked down as often and as thoroughly as it does is certainly relevant for predicting what the ultimate fate will be.
So the 9th doesn't get reversed signifcantly (percentage wise) but when it is reversed, it gets more definitively reversed?
This is not what I hear when people say "most reversed", but if that's your nuance, go with it, I guess.
I am assuming "smacked down" does not refer to run of the mill reversals, but only for unanimous reversals? Otherwise the "as often"" would seem to be a stretch.

As far as "who is right more often", I have no dog in that fight.
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  #22  
Old 04-29-2012, 02:52 AM
CoolHandCox CoolHandCox is offline
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From the above link, 9th Circuit is third most reversed; without comment (emphasis added):

Quote:
The [Supreme] Court reversed or vacated seventy-nine percent of the decisions it reviewed. Circuits with the highest percentage of reversals included the [1st] Sixth Circuit (eighty-three percent) and the [2nd] Fifth Circuit (eighty percent). The [3rd] Ninth Circuit came in third at seventy-nine percent.

There is nothing remarkable about these figures. SCOTUS scorecards demonstrate that over time the Supreme Court will typically reverse or remand seventy to seventy-five percent of the cases it hears. Most (if not nearly all) circuits are reversed at levels well above the fifty-percent mark year after year...What is interesting, though, is the reaction to these numbers – in particular, the media’s condemnation of the Ninth Circuit...

Last edited by CoolHandCox; 04-29-2012 at 02:55 AM..
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  #23  
Old 06-25-2012, 09:21 AM
Richard Parker Richard Parker is offline
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And the Supreme Court has ruled that 3 of the 4 provisions of the Arizona law are unconstitutional. It has withheld judgment on the constitutionality of the requirement that officers check immigration status.

ETA: Opinion here: http://www.supremecourt.gov/opinions...11-182b5e1.pdf

Last edited by Richard Parker; 06-25-2012 at 09:23 AM..
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Old 06-25-2012, 10:00 AM
Richard Parker Richard Parker is offline
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The Court analyzed four provisions of the law:

Section 3 and Section 5(C) both created Arizona law crimes for violation of immigration law -- one attempting to mirror federal law and the other creating a new criminal prohibition related to employment. Both are preempted because Congress has "occupied the field," meaning it has legislated in such a way as to implicitly prevent the states from passing their own laws on the subject. The Court cited Buckman, among other precedents, discussed above.

Quote:
Where Congress occupies an entirefield, as it has in the field of alien registration, even complementary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 249 (1984). . . . Permitting the State to impose its own penalties for the federal offenses here would conflict withthe careful framework Congress adopted. Cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341, 347–348 (2001) (States may not impose their own punishment for fraud on the Food and Drug Administration) . . . Were §3 to come into force, the Statewould have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies . . . The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment . . . Under §5(C) of S. B. 1070, Arizona law would interfere with the careful balance struck byCongress with respect to unauthorized employment of aliens.
Section 6 involves empowering the police to arrest people for suspected immigration violations. This provision too was preempted, in part because it is not a crime to be present unlawfully, and because federal law is otherwise the sole authority on when arrest of immigrants is appropriate. The Court relied extensively on 1357(g) which is the law setting up the ability for states to enter formal agreements with the federal government to mutually cooperate to enforce immigration law under the supervision of the Attorney General, as predicted here.

Quote:
This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A principal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See §1357(g)(1); see also§1103(a)(10) (authority may be extended in the event of an“imminent mass influx of aliens off the coast of the United States”); §1252c (authority to arrest in specific circumstance after consultation with the Federal Government);§1324(c) (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements aresubject to the Attorney General’s direction and supervision. §1357(g)(3). . . . As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigration officer. See §1357(g)(2); cf. 8 CFR §§287.5(c) (arrest power contingent on training), 287.1(g) (defining the training). By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.
Finally, section 2(B) is the provision requiring officers to try to determine the immigration status of people stopped or detained for other legitimate reasons. The Court ruled that whether this provision is preempted will depend on how it is construed by the Arizona courts, in part because 1357(g) permits state officers to do this without the kind of agreement otherwise required for cooperation on enforcement of immigration laws.
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Old 06-25-2012, 10:18 AM
John Mace John Mace is offline
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Thanks for the analysis. As usual, my eyes glazed over when I tried to read the decision.

Does this mean that the last provision needs to make another round through the AZ courts, and then back to the SCOTUS? Else, how is it to be determined whether or not the state courts get it "right"?
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Old 06-25-2012, 10:23 AM
Simplicio Simplicio is offline
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Legalities aside, is there any point to having cops check peoples immigration papers if being an illegal immigrant is no longer state law?
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Old 06-25-2012, 10:29 AM
Richard Parker Richard Parker is offline
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Does this mean that the last provision needs to make another round through the AZ courts, and then back to the SCOTUS?
Yes. Perhaps along with other so-called "as-applied" challenges, such as the racial profiling challenge.

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Legalities aside, is there any point to having cops check peoples immigration papers if being an illegal immigrant is no longer state law?
Sure. If the cops suspect that someone they have detained is an illegal immigrant, they can call INS and give them the info underlying the suspicion. INS can then issue a "detainer," which is a request for the local jail to hold the person until INS can investigate, which by statute is 48 hours, I believe.
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Old 06-25-2012, 10:34 AM
Bricker Bricker is offline
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Well, I was wrong. But not a huge surprise, since I always regarded the preemption argument as the strongest one:

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Originally Posted by Bricker View Post
Well, if it gets overturned on the basis over preemption, I'll be mildly surprised, but not shocked to my very core. I regard the preemption argument as wrong but tenable.

If it's overturned because of some Equal Protection-type claim, I will humbly and sincerely eat helping after helping of crow.
So -- I'm mildly surprised, but not shocked to my very core. I regarded the preemption argument as wrong but tenable, and it turns out to be tenable enough to be right.

Good call, Richard Parker.

Last edited by Bricker; 06-25-2012 at 10:35 AM..
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Old 06-25-2012, 10:45 AM
Richard Parker Richard Parker is offline
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If three justices agree with your position, there's not much room for bragging about legal acumen on either side. It was close enough to warrant certiorari and to split the court, after all. So while I believe this bet has technically won me certain bragging rights, I choose not to exercise them at this time.

I would point out that we got the Chief though.

Do we suppose that the fact that Kennedy drafted this even though the Chief was in the majority means that the Chief will be drafting the Obamacare opinion?
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Old 06-25-2012, 11:08 AM
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Originally Posted by Richard Parker View Post
If three justices agree with your position, there's not much room for bragging about legal acumen on either side. It was close enough to warrant certiorari and to split the court, after all. So while I believe this bet has technically won me certain bragging rights, I choose not to exercise them at this time.

I would point out that we got the Chief though.

Do we suppose that the fact that Kennedy drafted this even though the Chief was in the majority means that the Chief will be drafting the Obamacare opinion?
Do they horsetrade like that?
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Old 06-25-2012, 11:15 AM
John Mace John Mace is offline
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What was the breakdown of justices concurring with the various rulings? In particular, which justices upheld the "show me your papers" provision?
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Old 06-25-2012, 11:16 AM
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Yes. Perhaps along with other so-called "as-applied" challenges, such as the racial profiling challenge.



Sure. If the cops suspect that someone they have detained is an illegal immigrant, they can call INS and give them the info underlying the suspicion. INS can then issue a "detainer," which is a request for the local jail to hold the person until INS can investigate, which by statute is 48 hours, I believe.
And the opinion gives a good road map for how to construe the check-during-detention section (§ 2(B)) in a way that will survive. As long as those §2(B) checks are done during a legitimate detention and don't cause the detention to run long, it should survive.
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Old 06-25-2012, 11:18 AM
Jophiel Jophiel is offline
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Do we suppose that the fact that Kennedy drafted this even though the Chief was in the majority means that the Chief will be drafting the Obamacare opinion?
Conventional wisdom is that Roberts will be drafting the Obamacare decision no matter what. Either because he's in the majority against it or because he'll side with the majority for (if it was going that way) it in order to write the decision and strictly limit its reach.
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Old 06-25-2012, 11:22 AM
BobLibDem BobLibDem is offline
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What was the breakdown of justices concurring with the various rulings? In particular, which justices upheld the "show me your papers" provision?
Moe Alito, Larry Thomas, and Curly Scalia all wrote opinions that they would have upheld all 4 provisions.
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  #35  
Old 06-25-2012, 11:30 AM
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In German?
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Old 06-25-2012, 11:30 AM
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What was the breakdown of justices concurring with the various rulings? In particular, which justices upheld the "show me your papers" provision?
All of them.

I think. At least, all said it couldn't be challenged unless the challengers showed it was being misused; it wasn't improper on its face.

The majority upheld section §2(B), which is described in the opinion thusly: "[It] requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person’s immigration status with the Federal Government." AT least , they said it couldn't be struck down unless a challenger showed it was being applied in an unconstitutional way.

The majority said:
Quote:
Section 2(B) of S. B. 1070 requires state officers to make
a “reasonable attempt . . . to determine the immigration
status” of any person they stop, detain, or arrest on some
other legitimate basis if “reasonable suspicion exists that
the person is an alien and is unlawfully present in the
United States.”
.
.
.
However the law is interpreted, if §2(B) only requires
state officers to conduct a status check during the course
of an authorized, lawful detention or after a detainee has
been released, the provision likely would survive pre-
emption—at least absent some showing that it has other
consequences that are adverse to federal law and its objec
tives. There is no need in this case to address whether
reasonable suspicion of illegal entry or another immigra
tion crime would be a legitimate basis for prolonging a
detention, or whether this too would be preempted by
federal law.
Everyone in the majority agrees with that. In dissent, Scalia still agrees with that proposition:

Quote:
Originally Posted by Scalia dissent
It is impossible to make such a finding [that §2(B) is unconstitutional]
without a factual record concerning the manner in which
Arizona is implementing these provisions—something the
Government’s pre-enforcement challenge has pretermitted.
And Thomas says something even more concrete in favor of § 2(B). Kagan took no part in the decision.

ETA: The "I think" above means "I think the provision you mean by 'show me your papers' is the one called § 2(B)."

Last edited by Bricker; 06-25-2012 at 11:33 AM..
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  #37  
Old 06-25-2012, 11:31 AM
Richard Parker Richard Parker is offline
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Originally Posted by Bricker View Post
Do they horsetrade like that?
Not horsetrading as such. But typically if the CJ is in the majority on one of the biggest opinions of the term, he will write it, unless he is writing the other big one, I believe.

Quote:
Originally Posted by John Mace View Post
What was the breakdown of justices concurring with the various rulings? In particular, which justices upheld the "show me your papers" provision?
Not sure which provision that refers to, since multiple ones would have required the immigrant to show papers. Kennedy, Roberts, Ginsburg, Breyer, Sotomayor agreed that 3/4 preempted but the 4th is uncertain. Kagan recused. Thomas, Scalia, and Alito all wrote separately. Thomas and Scalia would have found the entire law kosher. Alito agreed that section 3 was preempted and that 2(B) was uncertain, but said the rest was OK.

Quote:
Originally Posted by Bricker View Post
And the opinion gives a good road map for how to construe the check-during-detention section (§ 2(B)) in a way that will survive. As long as those §2(B) checks are done during a legitimate detention and don't cause the detention to run long, it should survive.
Agreed.
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Old 06-25-2012, 11:44 AM
Bricker Bricker is offline
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And.... I have to say, I'm not really unhappy with this outcome. What we're left with is a law that requires an officer to check someone's immigration status if there's an acceptable reason to do so, but not to detain that person any longer than he otherwise could. And if the immigration check shows a problem, it's up to the folks at INS to ask for a detainer or not.
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Old 06-25-2012, 11:49 AM
John Mace John Mace is offline
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Quote:
Originally Posted by Bricker View Post
ETA: The "I think" above means "I think the provision you mean by 'show me your papers' is the one called § 2(B)."
Yes, that's the one. It's being called that on NPR today, so I thought that was commonly known, but maybe not.
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Old 06-25-2012, 11:49 AM
elucidator elucidator is offline
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And he could keep them into the slammer for 48 hours while they "check". But they can pretty much fuck with you anyway if they don't like your attitude, so nothing much has changed.
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Old 06-25-2012, 11:50 AM
Bricker Bricker is offline
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And he could keep them into the slammer for 48 hours while they "check". But they can pretty much fuck with you anyway if they don't like your attitude, so nothing much has changed.
No, I think the Court signaled pretty clearly that that kind of detention to check immigration status would be a deal-breaker.
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Old 06-25-2012, 11:50 AM
BobLibDem BobLibDem is offline
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It's the clause with "ACHTUNG!" in bold print.
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Old 06-25-2012, 11:52 AM
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It's the clause with "ACHTUNG!" in bold print.
Yes, that's the one. Upheld (until evidence in practice shows problems) by a unanimous court (well, eight members, with the ninth abstaining from the case). They all said achtung.
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Old 06-25-2012, 11:53 AM
John Mace John Mace is offline
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Quote:
Originally Posted by BobLibDem View Post
It's the clause with "ACHTUNG!" in bold print.
For fucking crying out loud, this was a unanimous decision of the court (with Kagan recused) about the so-called "show me your papers" provision. If you think Justice Ginsberg is a Nazi, just come out and say so.
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Old 06-25-2012, 11:55 AM
elucidator elucidator is offline
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"Your papers are in order. Why are your papers in order?"
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Old 06-25-2012, 11:58 AM
elucidator elucidator is offline
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Originally Posted by John Mace View Post
For fucking crying out loud, this was a unanimous decision of the court (with Kagan recused) about the so-called "show me your papers" provision. If you think Justice Ginsberg is a Nazi, just come out and say so.
You see, John, sarcasm is related to humor rather like buttsecks is related to actual sex. There is not necessarily a statement of actual belief, not does it support any wildly unfounded suggestions of actual belief. After you've been here a while, you may very well get used to that. Or not.
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Old 06-25-2012, 12:00 PM
BobLibDem BobLibDem is offline
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Quote:
Originally Posted by John Mace View Post
For fucking crying out loud, this was a unanimous decision of the court (with Kagan recused) about the so-called "show me your papers" provision. If you think Justice Ginsberg is a Nazi, just come out and say so.
I meant that the "show me your papers law", being Naziesque in nature, would appropriately have Achtung! at the top. I would not demean Justice Ginsberg.
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Old 06-25-2012, 12:01 PM
Bricker Bricker is offline
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Quote:
Originally Posted by elucidator View Post
You see, John, sarcasm is related to humor rather like buttsecks is related to actual sex. There is not necessarily a statement of actual belief, not does it support any wildly unfounded suggestions of actual belief. After you've been here a while, you may very well get used to that. Or not.
So... it's a post designed to get a reaction, but not containing any actual belief on the part of the poster?
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Old 06-25-2012, 12:02 PM
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Originally Posted by BobLibDem View Post
I meant that the "show me your papers law", being Naziesque in nature, would appropriately have Achtung! at the top. I would not demean Justice Ginsberg.
But Justice Ginsberg upheld the law. How do you reconcile those two statements?
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Old 06-25-2012, 12:05 PM
John Mace John Mace is offline
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Originally Posted by BobLibDem View Post
I meant that the "show me your papers law", being Naziesque in nature, would appropriately have Achtung! at the top. I would not demean Justice Ginsberg.
Is "Naziesque" one of those words that lets you call someone a Nazi but then have plausible deniability afterwards? Seriously, if you think this law s anything like what the Nazis did, lay out your case.
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