Lower courts, not the SCOTUS.
And what I’m saying is that it does not seem reasonable to me. You simply don’t have the “right” to solicit someone to break the law. If I ask you to kill someone for me, that type of speech is not protected. In the same way, if I ask you to hire me and I’m in the country illegally, I’m asking you to break the law.
BTW, I’m not arguing about what is good or bad public policy here-- just what is constitutional and what is not.
If there’s no easily discernable difference between citizens and noncitizens, that’s not my issue, but the constitution’s.
Section 1 of the Fourteenth Amendment clearly states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The first phrase says the rights of citizens cannot be abridged by states. Such rights are enumerated in previous amendments, especially the first, fourth, and fifth.
So what, do you think, is the purpose of the second phrase there? It can’t be applied solely to citizens; for one thing, it doesn’t use the word “citizens” that the first phrase does, and for another, if it was solely applicable to citizens, it would be entirely redundant with the first phrase. 19th century documents were verbose, but they didn’t engage in that kind of useless repetition.
So, the 14th Amendment says, “You can’t take away the rights of citizens, and you can’t take away the rights of anyone else who is here.” And if no one but citizens has rights to begin with, why say you can’t take those rights away? That’s like passing a law declaring no driver’s license shall ever be revoked from a 6 year old; it’s not necessary, since a six year old won’t have a license to begin with.
So, the 14th amendment makes it plain as day that people other than citizens have rights, and those rights cannot be taken away if they are here. At the very least, it declares that those people who are other than citizens cannot be deprived of life, liberty, or property without due process (using essentially the same phrasing as the fifth amendment), and that the “equal protection” of the law must apply to them. Equal to what, do you think?
How on EARTH could that possibly be interpreted otherwise?
Don’t try and move the goalposts. They didn’t forsee the specifics, but they did most definitely see a war coming. As Miller said, a good chunk of US politics for decades was focused solely on attempting to head off that war.
That’s like claiming no one could have predicted WWI, then backtracking and trying to claim that you really meant that no one could have predicted the bloody nightmare it turned into when someone points out how everyone was well aware that the alliance/entente system was bound to lead to war.
People in 1855 most definitely knew the Civil War was coming.
Only because I don’t know enough of the politics of the period to say what was really said versus what the Reagan Administration said. I don’t know one way or the other if your claim in this regard is accurate, so I’m not disputing it.
You are making the cardinal error of assuming immigration rates will stay the same no matter what, and trying to make predictions based on that. Immigration rates are not fixed.
If the US is going to be in such poor shape, with no money for infrastructure and no jobs, why would these hypothetical immigrants keep coming? They are coming NOW because there are jobs available and infrastructure to support them, which they cannot get in their countries of origin. If there’s no benefit to immigrating, they won’t immigrate.
Even if you’re right, and the US economy takes a hit because of all the illegals, the point at which the flood of immigrants will slow and eventually stop will be reached LONG before the US reaches the terrible state you claim it will.
In short, even in the worst-case scenario, the US will not be transformed into a balkanized third world country suffering from ethnic cleansing.
You sound like one of those economists who have predicted nine of the last two recessions.
And that’s why Congress passed the Chinese Exclusion Act. We are not today a Third World country, therefore the Chinese Exclusion Act must have been a good thing! Now if we could only go back in history and stop all those Pollocks and Eye-talians who were preparing to ruin our country no later than 1951.
You ducked the question of whether you think citizens mistakenly accused of being illegal immigrants deserve a lawyer, and how you magically determine for purposes of legal representation who is a citizen and who is an illegal immigrant before a hearing on whether one is a citizen or an immigrant can be held.
And as far as the difference on how citizens and aliens should be treated under the law, I think today’s laws are pretty good. Why don’t you explain what other constitutional rights you want to take away from non-citizens?
Ha! John Mace, that’s the most deft, clever legalism I think I’ve ever seen here. I love it. But it’s the same paradox it was when I joked about it a couple of posts ago, the oddity that the law can protect your right to ask for something it prohibits you from actually having.
I wish I had a better talent for writing clearly. How to put this? It’s not the same. “Help me kill this person” solicits a crime in every imaginable context, regardless of any personal characteristics of the utterer. “I want a job” solicits a crime in extremely rare circumstances, and its legality depends entirely upon the personal characteristics of the utterer, characteristics which may not be used as a basis for denying equal protection.
If I ask you to help me put something heavy in my car, and you do, you just might unwittingly be abetting a crime. But that doesn’t put “give me a hand with this, willya, buddy” beyond the limits of protected speech. If I walk up to a counter and ask for a beer, I might be sixteen, or in a dry county. My request might lead to a crime. But nobody really thinks that possibility impacts on freedom of speech.
If you think a crime is being committed, by all means investigate, arrest, prosecute, punish. But denying a certain class of people access to a public venue because you think it likely that a crime will be committed? No, you may not.
But an illegal alien soliciting employment will result in a crime every time it is accepted, so it’s not a matter of likely or not-- it’s a certainty. Is there a time when it’s OK to hire an illegal alien? I don’t think so, but if there is, I’ll gladly have my ignorance fought! So, as long as we are only denying them access to the place of solicitation, no rights are abridged.
As I said above, there are certainly ways to stop them from soliciting employment that would violate the constitution. However, asking everyone to show legal status is not one of those ways.
You may not see an inconsistency between this and the constitution, but what you propose can have deadly consequences.
No, really. Keep reading. Because if you say, “Oh, please! Another knee-jerk Liberal” then that only proves my impression that you don’t know the first frickin’ thing about our immigration laws and statuses. And how the law really works. And until you do, you come off as an ignoramus who just wants to kick all the brown folks out.
I know of more than one case where a person fled their country in fear for their life. When they got to the US they applied for asylum. They both went before the immigration judge. Both had an attorney. Both had to testify and present evidence. Both had to prove to a legal standard that 1) they were part of a protected class defined by asylum law, and 2) they had a reasonable fear that they would be harmed if returned to their country of origin.
Both cases were granted. Neither case would have been granted without an attorney. (US asylum law isn’t really covered in other countries, I find. Just believing in democratic ideals like freedom of speach doesn’t cut it. Or really, really not wanting to be disappeared and tortured until you are dead like your friends and family.)
Here’s the kicker. Both were technically illegal. She’d entered the US on a tourist visa. By the time she got to my office, she had overstayed. The other had used a fake passport to get the hell out of his country, as his government that was desirous of torturing or killing him wouldn’t just give him one so he could, you know, leave.
Now, under your scenario, both of these two should be summarily deported? Sent back to the clutches of a government that wishes them dead? Because that’s what would have happened to both of them under your rules.
BTW, endless appeals is not true. And after the law change in 1996 a lot of appeals were taken away.
You also don’t seem to understand that there are a lot of legal statuses that allow immigrants to be here that are not full citizenship. And that just because someone is not a citizen doesn’t mean they are illegal. And yes, they deserve the same proctections of the law that I do.
I know nothing in immigration law that makes it virtually impossible to deport someone if they don’t otherwise qualify for relief under some other aspect of the law.
I am also curious what you would suggest to the nice little old lady (also a client of mine) who spoke no English and didn’t have a birth certificate but was a US citizen. She was born close to the border in a rural area in her home in the 1910’s. Her birth was never recorded officially, so no birth certificate. Just being out in the world, she has nothing on her (in the same way that I have NOTHING in my purse on an everyday basis that PROVES I’m a US citizen) to prove she’s a citizen. If she gets picked up she should not have a lawyer, have a simple administrative hearing, and be shipped across the border? You have no idea what it took to put the proof together (circumstantial as it was!) to get her “legal papers” to show she really was a citizen so she couldn’t be deported and she could keep her Medicare. She looked and sounded illegal. She couldn’t prove she was a citizen. But she was. And she deserved to be given the opportunity to prove she was, with a lawyer, if she got picked up by La Migra.
All true. The difference is that you’re not a criminal at the time you request the beer as an underage individual. At that juncture, you’re a citizen who is attempting to engage in a criminal act, e.g. underage possession/consumption of alcohol-that is, unless your locale does criminalize the act of requesting. In any event, no criminal conduct has taken place beforehand.
An illegal alien is already a criminal, having entered the country via other than approved channels, and compounds their status by seeking day laborer work, in itself an unlawful activity (criminal solicitation), given that one who hires them (an illegal alien) commits a crime.
Except that the “criminal” in this case has not, as a general rule, been tried or convicted of any crime, yet. I’m no lawyer, obviously, but I think that complicates things a bit, doesn’t it? It seems unlikely to me that you can charge someone with a crime on the basis of another crime that they haven’t even been formally accused of.
Isn’t the term ‘illegal alien’ prima facie evidence?
It’s clearly a violation of the 5th amendment which states:
An administrative hearing where the accused is denied appeal and a lawyer doesn’t qualify for due process. Access to representation and appeal are basic and fundamental features of a fair legal system. I can’t even begin to imagine the outrage when a natural born citizen is booted out of the country irrevocably after a simple administrative hearing.
My point is, if someone is here illegally, don’t you have to prove that before you can treat them differently because of it? A law saying, “You can’t solicit for work if you’re here illegally,” seems unenforcable to me, because first you have to prove that the person is here illegally. At which point, one presumes, he’ll be deported for that crime, and the subsequent “looking for work” charge is rendered moot.
This whole 14th amendment “equal protection” argument seems foolish at least and laughable at worst.
Pick any law, and I can show you how it denies a person “equal protection” under the law. Why can’t I get Medicare Prescription Drug benefits? Just because I’m only 31 years old? If I was 71, I could get them!!! Discrimination! Bigotry!
What about laws against child molestation? They don’t apply to me, since I have no desire to molest a child. They only affect those people who have the desire to molest children meaning that they are denied “equal protection”. You say that’s different because a child deserves not to be harmed? Says who? Don’t violate someone’s 1st amendment beliefs with your tired old ethics…
To hit closer to the rule at hand, what if the town said that escapees from the state prison were not eligible to participate in the center? Would that violate their 14th amendment rights?
And another example I just remembered.
Certain Guatamalans and Salvadorans have an unusual and specific legal status due to being members of a class action lawsuit. They are allowed to stay in the US and work, but are not here on any kind of visa and are not legal permanent residents. Their only proof of their legal status is a work permit, which is a special kind of card that is not a green card (and not a work visa as most understand it).
Every year this permit has to be renewed. Many Guatamalans and Salvadorans would get them for their children, even though the children didn’t work, because it was the only way for the child to prove his or her status if they got picked up by INS.
So, one year the INS denied the routine renewal of one of my client’s children’s work permits saying she did not exist. Thus began the process of photocopying all of her paperwork going back years proving that INS had issued her a work permit for years prior to this denial. No dice. We did a FOIA (Freedom of Information Act) request to get a copy of her actual INS file. Then we resubmitted her application with a copy of the INS’s own file on her.
Denied. INS claimed they had no file on her. She didn’t exist.
Fortunately, she had a legal office working on her case that was able to cite chapter and verse of the law and the CFR that applied. A subtle threat of additional legal action if INS didn’t pull its head out of its ass.
She got her work permit.
But I guess in a perfect world if she alone hadn’t had been able to get INS to resolve *its error * and she got picked up she should have been summarily deported. With no appeal. This teenage child who hadn’t lived in El Salvador for over ten years. Deported. Alone. Without a parent or guardian (which happens).
And without knowledge of the law, FOIA, and the Code of Federal Regulations, I feel confident in saying she would not have gotten her work permit.
So, yeah, it’s nice to spout a hard line, but in the real world, there are real negative consequences for real people.
No, because you can label ANYONE an illegal, whether it’s true or not, and the accusation doesn’t MAKE it true if it’s false. In my old hometown of Las Cruces, New Mexico, my best friend’s dad worked at the Sara Lee/L’eggs factory. My friend’s dad was a citizen, but he spoke no English.
He was almost indistinguishable from an actual illegal immigrant worker. If you had gone to the Sara Lee plant and said “this bunch is all illegal immigrants”, you would have been dead wrong in at least one case, and possibly right in a number of other cases, and yet without an INS investigation it would be hard to tell.
However, you are claiming that the simple fact of the accusation is sufficient, which would have resulted in my friend’s entirely legal US citizen dad being deported along with the actual illegals. That would be a huge violation of his fifth amendment rights.
And that’s why the simple use of the term ‘illegal alien’ is not and cannot be evidence in and of itself. You need something else to determine citizenship and legal status.
Wow, has the Supreme Court heard this stunning line of argument? Quick, get on a plane to let them know before illegal immigrants ruin our country!
Don’t believe I stated or claimed that accusation is sufficient. If I did, please cite.
To use the Sara Lee plant scenario, there is no suggestion that “this bunch is all illegal immigrants” any more so than a raid on a party attended by a bunch of twenty-something young adults presupposes “these kids are all underage drinkers”.
On one hand, you have to show documentation that you are in the country legally, and on the other, you have to show that you are of age to consume alcoholic beverages legally. Failure to prove legal status in either case is cause for arrest.
Hold on, guys and dolls, I may have finally had that moment of clarity.
Crossing the border without observing the mandated formalities is a crime. But like any other crime, it is a single, discrete act. Illegal immigration is a crime: failing to cease to exist once here is not. What if the reverse were a principle of our legal system? If you committed any crime without being caught every single thing you did from then on except turning yourself in would be another punishable crime, like “getting a job while an unpunished felon,” or “buying a hot dog as an unredeemed jaywalker.” And the smallest of offenses would draw life sentences.
Now, it may be illegal to knowingly hire illegal immigrants, and it may even violate some law for a company to fail to perform some sort of background check prior to hiring certain types of employees (and I’ll bet that the regulations for day labor aren’t that strict). But I’ve seen no law ever that makes it illegal for someone to seek or accept employment no matter what their immigration status is, and the job-seeker is the only one who knows his status. So his act even under the worst circumstances involves no crime on his part, so why should his freedom of speech be compromised? At least, I think we need to see some proof that there actually is some inevitable crime involved in according even illegal immigrants this civil right, especially now that the courts have granted it first amendment protection.
If it’s just out in the street, yes that is hard to do. But if you provide a secure area to engage in that activity, then you can require, as a prerequisite to gaining access to that area, that people must show documentation of their legal status. Now, that will be a royal PITA, but it can be done.
And we can argue about whether or not it would be good public policy to enact such a procedure, but I don’t see how it could be called unconstitutional.
I think that’s right. So the final decision as to whether to include and exclude is that of the residents. You seem to agree with that, correct?
But wasn’t the original argument that the job center was a public area? If so, how is requiring documentation to enter the job center any different than requiring documentation to walk down the street? (From a legal standpoint, I mean.)
I think the key here is to focus on the results of applying the rule to all, not just to the guilty. For example, no one wants child molesters in public parks. At the same time, I think we can all agree that it would be an unreasonable breech of privacy if people had to submit to a full battery of government-administered psychological exams to test for pedophilial tendencies before one were allowed in a public park. We limit the government’s power to fight crime to avoid restricting our freedom and right to privacy, not because we secretly want people to break the law.
Anyone who questions why people would resist having to prove their citizenship should ask themselves if they would sign up for a voluntary IRS audit every year. If not, why not?