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  #1  
Old 07-11-2012, 04:35 PM
Nars Glinley Nars Glinley is offline
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Should the Justice Dept fight California's "Anti-Arizona" bill?

In partial response to Arizona's stance on immigration, a bill has been introduced in the California state legislature that, among other things, would limit local law enforcement's participation in the Secure Communities program, a program of the US Immigration and Customs Enforcement agency. (ICE)

Tom Ammiano, the bill's sponsor has this to say about Secure Communities:
Quote:
"(Secure Communities) has burdened our local governments and put even victims and witnesses of crime at risk of deportation, making us all less safe," Ammiano said in a statement. "It has even mistakenly trapped U.S. citizens in our local jails for immigration purposes."
from here.

Given that the Justice Department sued the state of Arizona for interfering with foreign policy because “the Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country”, should the Justice Department move to have the courts strike down the California law (if it should pass) on the same basis? Does blocking local police from referring a detainee to immigration officials unless the person has committed a felony rise to the level of "developing a patchwork of immigration policies"?

IMO, it does. If Arizona is going to have to follow US immigration law (and they should) then so should California. If the ICE chooses to disband or alter the Secure Communities program, that's fine. Until they do, California should comply with it.
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  #2  
Old 07-11-2012, 04:46 PM
magellan01 magellan01 is online now
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Interesting observation. I think you're right, that the feds need to treat this akin to the AZ law. I hope they don't though. And California unwittingly gives AZ a card to play in court in subsequent proceedings. THAT would be sweet.
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  #3  
Old 07-11-2012, 04:49 PM
Whack-a-Mole Whack-a-Mole is offline
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I am not sure what the quote really means.

From the ICE web site:

Quote:
Secure Communities imposes no new or additional requirements on state and local law enforcement. The federal government, not the state or local law enforcement agency, determines what immigration enforcement action, if any, is appropriate.

Only federal DHS officers make immigration enforcement decisions, and they do so only after an individual is arrested for a criminal violation of local, state, or federal law, separate and apart from any violations of immigration law.

SOURCE: http://www.ice.gov/secure_communities/
Certainly this is not California making its own immigration law. Question is to what extent is local law enforcement compelled to work with federal agencies? According to the above not much in this case it seems.
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  #4  
Old 07-11-2012, 04:56 PM
Lord Feldon Lord Feldon is online now
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Are states actually obligated by law to participate in Secure Communities?
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  #5  
Old 07-11-2012, 05:49 PM
John Mace John Mace is online now
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Originally Posted by Lord Feldon View Post
Are states actually obligated by law to participate in Secure Communities?
Not sure there is a definitive answer. From wikipedia:

Quote:
State and local attempts to withdraw

Some jurisdictions have tried to "opt out" from the program believing that participation was not mandatory.[36] Homeland Security officials have contradicted each other about whether Secure Communities is mandatory or voluntary.
An August 2010 DHS memo entitled “Secure Communities: Setting the Record Straight” suggests that counties have the ability to opt out of the program, even when their respective states have joined: "If a jurisdiction does not wish to activate on its scheduled date in the Secure Communities deployment plan, it must formally notify its state identification bureau and ICE in writing (email, letter of facsimile). Upon receipt of that information, ICE will request a meeting with federal partners, the jurisdiction, and the state to discuss any issues and come to a resolution, which may include adjusting the jurisdiction’s activation date in or removing the jurisdiction from the deployment plan."[37]
On Sept. 7, 2010, DHS Secretary Janet Napolitano said in a letter to Congresswoman Zoe Lofgren that jurisdictions that wished to withdraw from the program could do so. Yet an October 2010 Washington Post article quoted an anonymous senior ICE official asserting: “Secure Communities is not based on state or local cooperation in federal law enforcement…State and local law enforcement agencies are going to continue to fingerprint people and those fingerprints are forwarded to FBI for criminal checks. ICE will take immigration action appropriately.”[38]
At a press conference days later, Napolitano modified her position: “What my letter said was that we would work with them on the implementation in terms of timing and the like…But we do not view this as an opt-in, opt-out program.”[39] She did not provide legal justification. Meanwhile, in Arlington, VA, the County Board unanimously passed a resolution to opt out of Secure Communities.[40]
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  #6  
Old 07-11-2012, 06:03 PM
adaher adaher is offline
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California should also stop cooperating with the feds on drug enforcement and interdiction. Of course, if they did that, all of a sudden we'd hear about how states must help the feds enforce the law. Except for immigration, which states must not help too much with because the feds don't actually want to enforce it.
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  #7  
Old 07-11-2012, 06:11 PM
Morgenstern Morgenstern is online now
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Quote:
Originally Posted by adaher View Post
California should also stop cooperating with the feds on drug enforcement and interdiction. Of course, if they did that, all of a sudden we'd hear about how states must help the feds enforce the law. Except for immigration, which states must not help too much with because the feds don't actually want to enforce it.
It's interesting that California already has done that to some degree with respect to medical marijuana. California authorities follow the California law with respect to authorized possession and distribution, even though the fed law says otherwise.
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  #8  
Old 07-11-2012, 07:46 PM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by adaher View Post
California should also stop cooperating with the feds on drug enforcement and interdiction. Of course, if they did that, all of a sudden we'd hear about how states must help the feds enforce the law. Except for immigration, which states must not help too much with because the feds don't actually want to enforce it.
Drug laws and immigration are two very different things.

I would think it is apparent on the face of it that it would be a mess if each state could promulgate their own immigration statutes. Immigration into the US is distinctly in the realm of the federal government. Of course how those laws are enforced (who does what and who pays for what) are a matter of much debate.

Drug laws and their enforcement get into a much grayer area. Where immigration law is easy to see as a matter for the federal government drug laws are nowhere near as clear that a bright line exists between the states and the feds.
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  #9  
Old 07-12-2012, 07:50 AM
Nars Glinley Nars Glinley is offline
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The goal of the bill is to "curb deportations". Given that deportation is done at the discretion of the ICE, I don't see how this bill can be seen as anything other than (developing) "a patchwork of state and local immigration policies throughout the country" which was what Arizona was charged with.
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  #10  
Old 07-12-2012, 02:57 PM
robert_columbia robert_columbia is offline
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Quote:
Originally Posted by Whack-a-Mole View Post
...I would think it is apparent on the face of it that it would be a mess if each state could promulgate their own immigration statutes. Immigration into the US is distinctly in the realm of the federal government. Of course how those laws are enforced (who does what and who pays for what) are a matter of much debate.
....
Imagine what could come about if states were allowed to set their own immigration rules willy-nilly.

John: "Are you going to be able to make the meeting in New York next week? Did you buy your bus tickets yet?"
Bill: "No, actually. See the problem is that I got denied a visa to enter New Jersey, and the bus and train routes go straight through. I'm gonna have to drive to Philly and then drive up PA until I reach Upstate New York, then drive around. But I'm a little nervous because my sister said that Pennslvania Immigration will revoke a visa for a single speeding ticket, so it's like I have to walk on a tightrope nowadays.
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  #11  
Old 07-13-2012, 03:10 PM
magellan01 magellan01 is online now
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Quote:
Originally Posted by Whack-a-Mole View Post
Drug laws and immigration are two very different things.

I would think it is apparent on the face of it that it would be a mess if each state could promulgate their own immigration statutes. Immigration into the US is distinctly in the realm of the federal government. Of course how those laws are enforced (who does what and who pays for what) are a matter of much debate.

Drug laws and their enforcement get into a much grayer area. Where immigration law is easy to see as a matter for the federal government drug laws are nowhere near as clear that a bright line exists between the states and the feds.
It's a grayer area only if you want it to be a grayer area. States either have to bow to federal laws or do they do not.
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  #12  
Old 07-13-2012, 03:28 PM
jtgain jtgain is offline
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Quote:
Originally Posted by robert_columbia View Post
Imagine what could come about if states were allowed to set their own immigration rules willy-nilly.

John: "Are you going to be able to make the meeting in New York next week? Did you buy your bus tickets yet?"
Bill: "No, actually. See the problem is that I got denied a visa to enter New Jersey, and the bus and train routes go straight through. I'm gonna have to drive to Philly and then drive up PA until I reach Upstate New York, then drive around. But I'm a little nervous because my sister said that Pennslvania Immigration will revoke a visa for a single speeding ticket, so it's like I have to walk on a tightrope nowadays.
I think that can be distinguished from what Arizona/California is doing. The rules are the same everywhere, you just have a greater chance of getting caught in certain states. It would be like if we had a national 55mph speed limit again and most states didn't enforce it until 65mph, but Arizona decided to ticket people for 56mph and the feds started raising hell over it.

If the feds don't like it, they should make it 65 nationally, or else let Arizona enforce the 55 law.

They aren't creating a law, they are enforcing the existing law.
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  #13  
Old 07-14-2012, 09:45 AM
Saint Cad Saint Cad is online now
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Quote:
Originally Posted by Whack-a-Mole View Post
Drug laws and immigration are two very different things.
No they're not. As the Feds constantly remind states, Federal Law trumps State law with regard to statute and enforcement. They can't have it both ways. If the Feds don't want the states to enforce immigration laws, they shouldn't expect then to enforce Federal drug laws either.

Quote:
Originally Posted by robert_columbia View Post
Imagine what could come about if states were allowed to set their own immigration rules willy-nilly.
Strawman. Arizona did not have their own immigration policy. They simply chose to enforce laws the Feds did not want enforced.

Last edited by Saint Cad; 07-14-2012 at 09:47 AM..
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  #14  
Old 07-14-2012, 11:00 AM
Really Not All That Bright Really Not All That Bright is offline
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Quote:
Originally Posted by magellan01 View Post
It's a grayer area only if you want it to be a grayer area. States either have to bow to federal laws or do they do not.
No. Just no. The Supremacy Clause applies only where state and federal laws conflict, or where federal law "occupies the field". Congress has occupied the field of immigration law, and the Constitution explicitly gives it complete control over foreign affairs. Congress has not occupied the field of drug law, so states are free to regulate as they choose provided their laws do not conflict with the federal law in the area. To the extent that California chooses not to prosecute certain drug crimes under its own law, there is no conflict. If it were trying to shield its citizens from federal prosecution, that would be a problem.

Once the DHS decides whether the Secure Communities program is optional - something it seems to be having trouble doing - we'll know whether states must comply.
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  #15  
Old 07-14-2012, 11:31 AM
Acsenray Acsenray is offline
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I haven't looked too closely into this, but I think there are several cases in which state officials cannot be forced to take action in order to enforce federal laws. For example, states are not subject to the anti-discrimination laws (unless the discrimination in question relates to a fundamental right protected by the Constitution, like racial discrimination) or the Americans With Disabilities Act, and I believe that in the recent health care decision, the Supreme Court said that state government cannot be forced to expand Medicare in order to comply with federal law. If my loose recollection of these decisions is accurate, then it seems to me that state officials cannot be forced to participate in Secure Communities.

Last edited by Acsenray; 07-14-2012 at 11:34 AM..
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  #16  
Old 07-14-2012, 11:35 AM
Really Not All That Bright Really Not All That Bright is offline
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They can be "forced" to the extent that they can have federal law enforcement funding withdrawn.
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  #17  
Old 07-14-2012, 11:49 AM
Captain Amazing Captain Amazing is offline
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Quote:
Originally Posted by Saint Cad View Post
Strawman. Arizona did not have their own immigration policy. They simply chose to enforce laws the Feds did not want enforced.
It kind of did. It made being an illegal or paperless immigrant in Arizona a state crime.
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  #18  
Old 07-14-2012, 12:41 PM
jtgain jtgain is offline
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Originally Posted by Captain Amazing View Post
It kind of did. It made being an illegal or paperless immigrant in Arizona a state crime.
I know this wasn't directed at me, but this is where I see the distinction. If Arizona had set higher or lower immigration standards and made that a state crime, then that would run afoul of the national scheme.

But they are making exactly the same federal restrictions a state criminal offense. I can't see how that interferes with a common national system of immigration. If you are breaking the Arizona law, then you are also in any of the other 49 states illegally.

IOW, Should the Arizona authorities not be able to arrest counterfeiters, or people who steal mail, on the idea that those are federal prerogatives?
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  #19  
Old 07-14-2012, 12:54 PM
Whack-a-Mole Whack-a-Mole is offline
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Originally Posted by jtgain View Post
IOW, Should the Arizona authorities not be able to arrest counterfeiters, or people who steal mail, on the idea that those are federal prerogatives?
What Arizona is doing is changing how they determine if you are a counterfeiter or steal mail (to go with the analogy).

It'd be like the police pulling you aside while walking down the street and telling you that you need to show them all the money you are carrying so they can ascertain if you are a counterfeiter.
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  #20  
Old 07-14-2012, 02:06 PM
Captain Amazing Captain Amazing is offline
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Originally Posted by jtgain View Post
I know this wasn't directed at me, but this is where I see the distinction. If Arizona had set higher or lower immigration standards and made that a state crime, then that would run afoul of the national scheme.
First of all, they do, because being in the US without authorization in itself isn't a federal crime.

Quote:
IOW, Should the Arizona authorities not be able to arrest counterfeiters, or people who steal mail, on the idea that those are federal prerogatives?
Of course they can. But they can't prosecute someone for counterfeiting or mail fraud. State and local police already have the authority to arrest and detain people who have are illegally here. See 9:1918 of the US Attorney's Manual, titled "Arrest of Illegal Allians by State and Local Officers".
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  #21  
Old 07-14-2012, 02:31 PM
Saint Cad Saint Cad is online now
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Originally Posted by Captain Amazing View Post
It kind of did. It made being an illegal or paperless immigrant in Arizona a state crime.
Which does not contradict Federal Law. What happened was the the Feds chose not to enforce that law so Arizona made it a state law and told the Feds that they could not stop them from enforcing Arizona law. The Courts said yes they can because the Supremacy Clause prevents end-arounds of enforcement policy like that.
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  #22  
Old 07-14-2012, 03:04 PM
nachtmusick nachtmusick is offline
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And now the feds are also going after cities that explicitly don't cooperate with federal deportation policy:

http://www.washingtontimes.com/news/...-legal-action/

So the bottom line is that the feds find themselves to conflicted to do anything substantial for the last half century, but they pounce like cats when anybody else tries to make a move.

So...incidental gridlock, or intentional stalling?
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