2010-2011 Phoenix Suns Preview- What goes up must come down? :: Around the Association

The implication is racist: “This is for the race,” i.e. only Mexican people. La Raza is the Mexican KKK, pretty much. If I sang a song, “This is for the KKK,” that would be racist.

I gave a quick comment about it, you asked me for more information but I am at work and would appreciate if you give me the time because there are FACTS and CASELAW in play. Apparantly I can only question the Arizona law if I have research materials in front of me or have memorizied the exact arguement but you can totally defend it as being constitutional by simply mischaracterizing someone’s arguement (this isn’t just an issue about federal law being on the books for decades). Sorry I don’t have entire paragraphs of information memorized but yes I have had to research the topic before and know I can do a good job of explaining it when I get home. Just because I don’t want to mischaractize facts doesn’t mean I don’t know what I am talking about. If I don’t have to time tonight I am sure I can do it in the morning.

Again, lay off the personal attacks. I didn’t attack you, I am merely interested in arguing the constitutional issues and yes I can’t do the entire thing from memory. Believe it or not the whole issue blew up months ago and I have been pretty busy so yeah I need a refresher if you want me to be more precise. That doesn’t mean I don’t know anything but unless you have some experience in such fields then I am going to have to explain a lot of stuff to you in the correct way or else it will confuse the heck out of you (sorry that isn’t to offend but it could get really confusing for anyone who doesn’t have a background in this area).

And don’t give me crap about how I couldn’t wait. All I originally said is “sb1070 as written cannot pass Constitional muster under the equal protection clause, due process clause, and the supremacy clause.” I fully intend to explain it and explain it accurately for you. I am not using some jedi trick on you.

I am not “smearing” Arizona in the slightest. I literally just said that the bill is unconstitional under three different constitutional arguements and then quickly talked about further problems I have with it (by the way those were not constitiutional arguements but if you want I can explain why it would make the Arizona police officers jobs more difficult and the cash incentive part. To be honest they are only really policy concerns).

Naticus, I am not calling you names. I don’t think everyone in Arizona is a racist. I understand there are legitimate concerns about immigration but yeah I do have problems with this specific law and sorry but I do not have westlaw chip in my head.

Okay so both the fed and the state have different spheres of influence. For the most part, government power is concurrent, essentially belonging to both the states and the federal government. Thus, it’s possible for states and the federal government to pass legislation on the same subject matter. When this occurs, the Supremacy Clause provides that the federal law is supreme, and the conflicting state law is rendered void (no matter if it is worded the same as the federal law).

So, a valid act of Congress or federal regulation supersedes any state or local action that actually conflicts with the federal rule. For example, in Haywood v. Downs (2009), federal law gave state and federal courts jurisdiction to hear claims for violations of federal rights committed by persons acting under color of state law. New York determined that the majority of suits seeking monetary damages from corrections officers under the regulation were frivolous and therefore divested its trial courts of jurisdiction to hear such cases. The Court held that the state’s policy of shielding corrections officers from suits under the law violated the Supremacy Clause. State courts may apply their own procedural rules as they do to do state claims but they could not exclude a class of federal claims from being heard in state court.

You are probably saying to yourself "Who cares, this isn’t an issue where there is an actual conflict between the state and federal government." Here, is the thing though, it is also sufficient if the state or local law interferes with achievement of a federal objective. This is even true if the state or local law was enacted for some valid purpose and not merely to frustrate the federal law. For example, in Perez v. Campbell (1971), a state law provided for suspension of a driver’s license regardless of the judgment debtor’s discharge in bankruptcy; however, federal bankruptcy laws are meant to give bankrupts a fresh start. The Court held that the state law interfered with the federal objective and thus was unconstitutional under the Supremacy Clause.

Even if a state or local law does not conflict with federally regulated conduct or objectives, so long as Congress intended to "occupy" the entire field, the Supremacy Clause precludes any state or local regulation. This is where the argument is lies, in this prong of the federal preemption analysis.

One must first understand the federal government’s role is with immigration. The Constitution vests the political branches with exclusive and plenary authority to establish the nation’s immigration policy. See U.S. Const., art. I § 8, cl. 4 (Congress has the authority to "establish an uniform Rule of Naturalization"); U.S. Const., art. I § 8, cl. 3
(Congress has the authority to "regulate Commerce with foreign Nations"); see also U.S. Const., art. II § 3 (vesting the President with the authority to "take Care that the Laws be faithfully executed"). Pursuant to this authority, over several decades, Congress has enacted and refined a detailed statutory framework governing immigration – a task that has involved reconciling the complex and often competing interests of national security and public safety, foreign relations, and humanitarian concerns. The federal immigration scheme, largely enacted as part of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101, et seq., empowers the Department of Homeland Security ("DHS"), the Department of Justice ("DOJ"), and the Department of State, among other federal agencies, to administer and enforce the immigration laws, and it provides for the considerable exercise of discretion to direct enforcement in a manner consistent with federal policy objectives.

In regards to the federal government’s discretion regarding the entry, removal, and treatment of aliens within the United States, we have to focus on the INA. The INA sets forth the conditions under which a foreign national may be admitted to and remain in the United States. As part of these conditions, Congress created a comprehensive alien registration system for monitoring the entry and movement of aliens within the United States. See 8 U.S.C. §§ 1201(b), 1301-1306; see also 8 C.F.R. Part 264. If an alien enters the United States without inspection, presents fraudulent documents at entry, violates the conditions of his admission, or engages in certain proscribed conduct, the federal government (through DHS) may place him in removal proceedings. See 8 U.S.C. §§ 1225, 1227, 1228, 1229, 1229c, 1231. In addition to removal, DHS and DOJ may employ civil and criminal sanctions against the alien for particular violations of the federal immigration laws (please note, under federal law, an alien’s mere unlawful presence in the United States is not a crime, although it may subject the alien to removal from the United States.) See, e.g., 8 U.S.C. §§ 1325, 1306, 1324c. To prevent the unlawful entry of aliens into the United States, Congress further criminalized certain activities of third parties, such as the smuggling of unlawfully present aliens into the country, and the facilitation of unlawful immigration within the nation’s borders. See 8 U.S.C. § 1324. Critically, Congress provided for the civil removal of unlawfully present aliens, but did not criminally penalize their mere presence or movement within the country absent other factors. Nor did Congress impose criminal penalties on aliens for solely seeking or obtaining employment in the country without authorization, see H.R. Rep. No. 99-682(I) at 46, electing instead to prohibit employers from hiring unauthorized aliens. See 8 U.S.C. § 1324a(a)(1).

Under this framework, administering agencies are empowered to exercise their discretion not to apply a specific sanction to an alien who has unlawfully entered or remained in the United States. For example, DHS has authority to permit aliens, including those who would otherwise be inadmissible, to temporarily enter and remain the United States (i.e.,
"parole") for "urgent humanitarian reasons" or "significant public benefit." 8 U.S.C.
§ 1182(d)(5)(A). In addition, DHS and DOJ may withhold or cancel the removal of an alien under a variety of special circumstances, including those relating to family unity and domestic abuse. See 8 U.S.C. § 1227(a)(1)(E)(iii); 8 U.S.C. §§ 1229b (providing DOJ discretion to cancel the removal of an otherwise inadmissible or removable alien under certain circumstances); see also 8 U.S.C. § 1182(a)(6)(A) (excluding from inadmissibility certain aliens who have been subjected to battery or extreme cruelty). Further, both DHS and DOJ may grant an otherwise unlawfully present or removable alien relief from removal – and potentially adjust that alien’s immigration status – if the alien meets certain conditions. If an alien has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, he may be eligible for asylum in the United States, "irrespective of [his] status." See 8 U.S.C. § 1158. Similarly, an alien may be afforded temporary protected status and remain in the United States if he is an eligible national of a country that DHS has designated as experiencing ongoing armed conflict, natural disaster, or another extraordinary circumstance. See 8 U.S.C. § 1254a.

Essentially, the federal immigration laws do not focus on one, singular interest but instead seek to further multiple competing objectives.

Now, the DHS is the federal agency primarily tasked with enforcing the immigration laws, mainly through its components, U.S. Immigration and Customs Enforcement ("ICE"), U.S. Customs and Border Protection ("CBP"), and U.S. Citizenship and Immigration Services ("USCIS"). See 6 U.S.C. §§ 251–52, 271; 8 U.S.C. § 1103. DHS receives state and local cooperation. See, e.g., 8 U.S.C. § 1103(a)(10) (authorizing DHS to empower state or local law enforcement with immigration enforcement authority when an "actual or imminent mass influx of aliens . . . presents urgent circumstances"). In addition, Congress prescribed by statute a number of ways in which states may assist the federal government in its enforcement of the immigration laws. 8 U.S.C. § 1357(g) (1)–(9) (enabling DHS to enter into agreements to authorize appropriately trained and supervised state and local officers to perform enumerated immigration related functions); 8 U.S.C. § 1373(a)-(b); 8 U.S.C.§ 1252c (authorizing state and local law enforcement to arrest aliens who are unlawfully present in the United States because they were previously removed after being convicted of a felony in the United States).

Currently DHS does not have the capacity to deport everyone who is found to be in the country illegally so DHS is prioritizing the removal of people with criminal records who are a potential threat to public safety. There are a limited number of people our immigration system is able to process and remove (people charged with immigration violations are waiting over a year on average for their case to be resolved in immigration court). Given the choice of whether to spend those limited resources on the removal of non-criminal immigrants or criminal immigrants, DHS wants to ensure that they’re removing those who could be dangerous. This is a common practice that has been around for years. What isn’t common though is that DHS is deporting a record number of unauthorized immigrants and an increased percentage of them have criminal records.

And now we have SB 1070 which was signed by the Governor of Arizona. The Supremacy Clause of the U.S. Constitution provides that federal laws and treaties are "the supreme Law of the Land." U.S. Const., art. VI, cl. 2. In some cases, the Constitution – through its own force – can preempt state action in a field exclusively reserved for the federal government. See De Canas v. Bica, 424 U.S. 351, 356 (1976). Statutes enacted by Congress may also preempt – either expressly or impliedly – otherwise permissible state action. See Gade v. Nat’l Solid Waste Mgmt. Ass’n, 505 U.S. 88, 98 (1992).

The Supreme Court has recognized two bases by which state or local laws may be impliedly preempted. "Field preemption" exists when a "scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room to supplement it" because "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject," or because "the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose." Pacific Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461U.S. 190, 204 (1983) (internal quotations marks omitted). "Conflict preemption" occurs when a party cannot comply with both state and federal law, Fla. Lime & Avocado Growers,Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995); see also Kobar v. Novartis Corp., 378 F. Supp. 2d 1166, 1169 (D. Ariz. 2005) (Bolton, J.). These bases for preemption are not "rigidly distinct," however, and "field pre-emption maybe understood as a species of conflict pre-emption." Crosby v. Nat’l Foreign Trade Council,530 U.S. 363, 373 (2000) (internal citations omitted).

Moreover, "that the supremacy of the national power in the general field of foreign
affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by authors of The Federalist in 1787, and has since been given continuous recognition by [the Supreme] Court." Hines, 312 U.S. at 62. Although this federal power does not preclude "every state enactment which in any way deals with aliens," De Canas v. Bica, 424 U.S. at 355, or bona fide state cooperation in the enforcement of the federal immigration laws, see, e.g., 8 U.S.C. § 1357(g)(10); Gonzales v. Peoria, 722 F.2d 468, 474 (9th Cir. 1983), it has long been recognized that the "[p]ower to regulate immigration is unquestionably exclusively a federal power." De Canas, 424 U.S. at 354; see also Toll v. Moreno, 458 U.S. 1, 11 (1982) ("determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization" are matters exclusively reserved to the federal government); Mathews v. Diaz, 426 U.S. 67, 84 (1976) ("[I]t is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens."). Further, a state exceeds its power to enact regulations touching on aliens generally if the regulation is not passed pursuant to state "police powers" that are "focuse[d] directly upon" and "tailored to combat" what are "essentially local problems." De Canas, 424 U.S. at 356–57.

Now the big argument is that the overall scheme of SB 1070 is preempted because it sets a state-level immigration policy that interferes with federal administration and enforcement of the immigration laws on the book. Basically, Arizona, dissatisfied with the federal government’s response to illegal immigration has sought, through S.B. 1070, to override the considered judgment of Congress regarding the formulation of immigration policy, and the judgment of the executive branch regarding how to balance competing objectives in implementing the federal immigration laws. Arizona’s policy pursues only one goal of the federal immigration system – maximum reduction of the number of unlawfully present aliens– to the exclusion of all other objectives. The concern is that, in pursuing that goal, Arizona’s policy will disrupt federal enforcement priorities and divert federal resources needed to target dangerous aliens. S.B. 1070 is therefore preempted, because (1) it is an unlawful attempt to set immigration policy at the state level and the policy it advances conflicts with federal objectives animating federal administration and enforcement of the INA.

Only the federal government may establish immigration policy – namely, the process
of "determin[ing] who should or should not be admitted into the country, " De Canas, 424 U.S. at 355, and the "conditions lawfully imposed by Congress upon . . . residence of aliens,"Takahashi v. Fish and Game Comm’n, 334 U.S. 410, 419 (1948). See also Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir. 2004) ("In the immigration context . . . the need for national uniformity is paramount."); Arres v. IMI Cornelius Remcor, Inc., 333 F.3d 812, 815 (7th Cir. 2003) ("Federal immigration power is not just superior to that of the states; it is exclusive of any state power over the subject. Illinois is not entitled to have a policy on the question [of] what precautions should be taken to evaluate the credentials of aliens.").

This prohibition on state formulations of immigration policy does not preclude a state from cooperating with the federal government on immigration matters, nor does it restrict a state from adopting state laws that have incidental effects on aliens. See De Canas, 424 U.S. at 355-56 ("local regulation" with only a "purely speculative and indirect impact on immigration" is not "a constitutionally proscribed regulation of immigration"). Indeed, state participation in cooperative immigration enforcement is specifically contemplated by federal law. See, e.g., 8 U.S.C. § 1357(g). No mechanical test defines the limit of state power to promulgate, under their police powers, regulations incidentally affecting immigration. But at a minimum, a state is generally barred from enacting a "comprehensive scheme" for immigration, i.e., a system of state laws that affects "a direct and substantial impact on immigration." League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 769–70 (C.D. Cal 1995).10 S.B. 1070 falls on the prohibited side of this line because, as discussed below, the statute (i) explicitly refers to itself as creating "public policy" for the State of Arizona on immigration issues and was intended to rival or supplant federal immigration policy, (ii) establishes interlocking regulations to further the State’s policy, and (iii) effectuates the "policy" through the criminal and procedural sections of the statute, which include a private right of action to ensure the maximum state enforcement of immigration laws. S.B. 1070 § 2(H); see also Part I.C, infra. According to the statute’s statement of "intent," S.B. 1070 is not meant to exercise traditional state police powers but rather seeks to establish an Arizona-specific immigration "public policy." S.B. 1070 § 1. The substantive provisions of S.B. 1070 effectuate Section 1’s statement of intent, establishing various bases for detaining and incarcerating aliens in Arizona in order to achieve the overarching goal of regulating immigration through "attrition through enforcement." Sections 2 and 6 expand the set of suspected aliens whose immigration status will be verified by Arizona officials. Sections 3, 4, and 5 provide several means of criminally sanctioning any alien who is unlawfully present in the state – a status which is not a federal crime but which is the focus of Sections 2 and 6. And the private right of action embodied in Section 2 ensures, on pain of a private lawsuit for money damages, that state and local officials in Arizona maximally enforce the provisions of S.B. 1070, thereby establishing an Arizona immigration policy that promotes sanctions to the exclusion of other interests that animate the federal immigration laws and that disrupts federal enforcement priorities, including the focus on dangerous aliens. In stated purpose and necessary operation, therefore, the provisions of S.B. 1070 demand that Arizona pursue at all costs a policy designed to deter unlawfully present aliens from moving into the state and to inspect, investigate, detain, and in some cases criminally sanction those already in the state. For these reasons, S.B. 1070 is a comprehensive and aggressive effort to set statespecific immigration policy that will have a "direct and substantial impact" on immigration, and it is therefore preempted as a matter of law. See League of United Latin Am. Citizens, 908 F. Supp. at 769–70.

The Supreme Court has made clear that state laws may be preempted where they fail
to account for, or seek to countermand, the considered balance between competing interests struck by Congress in enacting a statute, or by the executive branch in enforcing that statute. S.B. 1070 falls squarely within this prohibited category.
In Crosby v. National Foreign Trade Council, for example, the Court held that a
Massachusetts law restricting purchases from companies doing business with Burma interfered with the executive branch’s authority over economic sanctions against that country. 530 U.S. at 376. The Court determined that Congress had not only given the executive branch the authority to impose certain sanctions against Burma, but that in doing so, it provided the discretion and flexibility to levy and relieve those sanctions in a manner that would advance human rights and democracy in Burma and be consistent with the national security interests of the United States. Id. at 374-75. Massachusetts’s "sanction" on Burma was preempted because it would have permitted the state to effectively second guess the specific balance of sanctions (whether levied or withheld) that was available to and employed by the United States. Id. at 376. Notably, even though many aspects of the Massachusetts sanction regime nominally could have been pursued by the executive branch under existing law, the state law was still deemed invalid because the state’s imposition of sanctions necessarily impeded executive discretion as to the appropriate balance of interests to be reflected in U.S. policy towards Burma.

Buckman Co. v. Plaintiffs’ Legal Committee supports the same conclusions. In
Buckman, the Court determined that the Food, Drug, and Cosmetic Act (FDCA) empowered the FDA with a "variety of enforcement options that allow it to make a measured response to suspected fraud," and that under the statutory scheme, the "FDA pursues difficult (and often competing) objectives," such as ensuring that medical devices are reasonably safe, while allowing devices on the market as soon as possible, and regulating medical devices without interfering with the practice of medicine. 531 U.S. 341, 349 (2001). The Buckman Court held that the FDCA’s enforcement scheme preempted state law tort claims premised on fraud committed against the FDA, noting that the relationship between the federal government and those it regulates is a matter for the federal government and not part of the states’ traditional police powers. The Court further reasoned that because the FDA pursues a particular balance of competing objectives, states are precluded from taking action that could skew the "balance sought by the Administration" through its calibrated enforcement policies. Id. at 348. This Court has likewise interpreted Buckman as cautioning against the "inherent difficulty" that arises when states try to "substitute their judgment for that of the" federal government. Kobar, 378 F. Supp. 2d at 1173–74 (Bolton, J.).

The same principles apply here. To begin with, it is beyond question that the federal immigration regime established by Congress, no less than the regulatory regimes at issue in Crosby and Buckman, is complex, and requires a balance among multiple and sometimes competing objectives. See U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (immigration control and management is "a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program"). It is certainly a primary objective of federal law to prevent aliens from unlawfully entering and residing in the United States, and Congress has empowered DHS and DOJ with a range of enforcement options to this end. See, e.g., 8 U.S.C. §§ 1182, 1225, 1227, 1229, 1306, 1324, 1324c, 1325. But the federal immigration laws also take into account other uniquely national interests and priorities, such as facilitating trade and commerce; welcoming foreign nationals who visit or immigrate lawfully and ensuring their fair and equitable treatment wherever they reside; and responding to humanitarian and foreign affairs concerns at the global and individual levels. Consequently, there are situations in which other congressional policy objectives weigh against removal or incarceration of certain unlawfully present aliens.15 Similarly, the federal government prioritizes its enforcement efforts by targeting highly threatening aliens who pose a danger to national security and public safety. As a result of the complexities inherent in the enforcement of the federal immigration scheme, DHS and DOJ necessarily must (i) establish global policy objectives that attempt to strike a balance between employing criminal sanctions and other immigration values, and
(ii) exercise their authority and discretion on a case-by-case basis consistent with those
global objectives. See Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002); 8 U.S.C. § 1103; 8 U.S.C. § 1252(g); see also Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999) (describing deferred action as a "commendable exercise in administrative discretion, developed without express statutory authorization")

In enacting a state policy of "attrition through enforcement," Arizona’s S.B. 1070 ignores every objective of the federal immigration system, save one: the immediate apprehension and criminal sanction of all unlawfully present aliens. See S.B. 1070 § 1. Arizona’s one-size-fits-all approach to immigration policy and enforcement undermines the federal government’s ability to balance the variety of objectives inherent in the federal immigration system, including the federal government’s focus on the most dangerous aliens. By requiring local police officers to engage in maximum inquiry and verification (on pain of civil suit) and by providing for the conviction and incarceration of certain foreign nationals in Arizona for their failure to register, for entering or traveling throughout the state using commercial transportation, or for soliciting work, the "balance" struck by S.B. 1070 is not only different from that of the federal government, but it will interfere with the federal government’s ability to administer and enforce the immigration laws in a manner consistent with the aforementioned concerns that are reflected in the INA. Despite the statute’s self serving claim that it "shall be implemented in a manner consistent with federal laws regulating immigration," S.B. 1070 § 12, the act mandates a conflicting, Arizona-specific immigration policy – "attrition through enforcement" – and prescribes various provisions that implement that policy in conflict with federal priorities. To permit a hodgepodge of state immigration policies, such as the one Arizona has attempted in S.B. 1070, would impermissibly interfere with the federal government’s balance of uniquely national interests and priorities in a number of ways.
First, Arizona’s across-the-board "attrition through enforcement" policy will interfere with federal enforcement priorities. The federal government, which exercises significant enforcement discretion, has prioritized for arrest and detention those aliens who pose a
danger to national security or a risk to public safety principally targeting aliens engaged in or suspected of terrorism or espionage; aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders; certain gang members; and aliens subject to outstanding criminal warrants . . . [and] fugitive aliens, especially those with criminal records. But S.B. 1070, which requires Arizona law enforcement officials to target any and all suspected aliens without regard to dangerousness, will "divert existing [federal] resources from other duties, resulting in fewer resources being available to dedicate to cases and aliens" that the federal government has identified as posing the greatest immediate threats to the United States. Diverting resources to cover the influx of referrals from Arizona (and other states, to the extent similar laws are adopted) could, therefore, mean decreasing the federal government’s ability to focus on priorities such as protecting national security or public safety in order to pursue aliens who are in the United States illegally but pose no immediate or known danger or threat to the safety and security of the public." S.B. 1070 is therefore preempted because it will force a diversion of federal resources away from federal priorities. See Kobar, 378 F. Supp. 2d at 1170,
1173–74 (Bolton, J.) (finding Arizona statute preempted, in part, because it would result in "deluge" of information to the FDA, thereby interfering with other FDA priorities); see also Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1057 (S.D. Cal. 2006) (acknowledging serious concerns regarding the city’s use of federal authorities to determine the immigration status of tenants because the process would "likely place burdens on the Departments of Justice and Homeland Security that will impede the functions of those federal agencies").

Second, Arizona’s new immigration policy will substantially interfere with the federal government’s ability to administer and enforce the immigration laws in a manner consistent with congressional objectives. Congress has clearly anticipated circumstances in which an alien may have unlawfully entered the United States or violated the conditions of his admission, but for whom the United States nonetheless has an interest in providing what it calls humanitarian relief. See, e.g., 8 U.S.C. § 1158 (asylum); § 1254a (temporary protected status); § 1227(a)(1)(E)(iii) (humanitarian waiver of deportability to assure family unity); § 1229b (cancellation of removal); § 1182 (d)(5) (parole). For example, were DHS to come into contact with a foreign national from a specially designated country (such as Nicaragua, Honduras, or El Salvador), or one who has survived the earthquake in Haiti, or is a victim of trafficking or persecution, DHS might choose not to detain or penalize the alien for immigration violations incidental to his entry into the United States and instead permit that alien to stay in the United States under a variety of programs. These programs demonstrate that one aspect of federal immigration policy is to assist and welcome such victims in the United States, notwithstanding their possible temporary unlawful presence. By contrast, under S.B. 1070, any other potential immigration concern falls away in favor of Arizona’s decision to pursue "attrition through enforcement," which, as implemented through the remainder of the statute, promotes the incarceration and arrest of all unlawfully present aliens, no matter what other congressionally mandated concern might be implicated or whether the person’s status is known to the federal government. In that way, S.B. 1070 will interfere with established federal immigration priorities concerning the treatment of aliens who may be eligible for humanitarian relief.

Third, Arizona’s focus on criminal sanctions is at odds with the federal policy of channeling certain unlawfully present aliens into civil removal proceedings or permitting them to leave the country without criminal penalty or incarceration. See 8 U.S.C. § 1229c (voluntary departure); § 1225(a)(4) (withdrawal of application for admission)
There are numerous reasons why it is in the national interest not to exact criminal penalties on every alien who attempts to enter or enters the country without a visa or other necessary documentation. For example, the application of criminal sanctions to a particular alien who was a victim of trafficking or labor abuse may prevent federal authorities from obtaining evidence against other aliens who pose a greater threat to public safety or national security. Similarly, the United States may deem it unduly harsh or counterproductive to its humanitarian efforts or foreign relations to incarcerate a woman with young children who has attempted to cross the border for the first time.
In addition, there may be times when civil removal is a more appropriate enforcement tool because criminal sanctions would have immigration consequences that would interfere with the United States’ ability to provide a particular immigration benefit in the future. See, e.g., 8 U.S.C. § 1254a©(2)(B). S.B. 1070 recognizes no such nuance. As such, the law undoubtedly strikes "a different balance" than the policy advanced by federal law and thereby "stands as an ‘obstacle’ to the accomplishment of . . . federal law." See Lozano, 496 F. Supp. 2d at 527–28; see also Crosby, 530 U.S. at 378.

And even if S.B. 1070 could be said to promote federal immigration policy in some abstract sense, the methodology chosen by Arizona conflicts with that chosen by the federal government, and is therefore preempted. See Gade, 505 U.S. at 103; Int’l Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987).

My problem with the debate is that I hear a lot about how anything short of removing every single person found to be in the country illegally is essentially amnesty. I feel that it obscures the fact that while illegals with criminal records are in fact being deported and there is a miss conception that the federal government is doing nothing. This leads to a situation where multiple states are enacting different laws with different agendas and it makes the focus on violent criminals much much harder. One can’t argue here that the state is enforcing it’s police powers because it is well known that the state police power does not include the ability to set immigration policy.

Whatever I think, it should be pointed out that are a lot of other arguments in relation to federal preemption and SB 1070 and that it is largely believed that the law will be considered unconstitutional on federal preemption grounds. Pretty sure the Department of Justice was able to get it’s preliminary injunction based on this argument, which doesn’t bode well for Arizona’s case given that, to get a preliminary injunction, one much show they are likely to win the case.

The Due Process Clause and the Equal Protection Clause guarantee the fairness of laws – substantive due process guarantees that laws will be reasonable and not arbitrary, and equal protection guarantees that similarly situated persons will be treated alike. Both guarantees require the Court to review the substance of the law rather than the procedures employed.

2. Due Process

Under the Due Process Clause of the 14th Amendment, a law can be held unconstitutional if it fails to provide minimal guidelines to govern law enforceement officers so as to discourage arbitrary and discriminatotry enforceemnt. Koldenar v. Lawson, 461 U.S. 352 (1983); City of Chicago v. Morarles, 527 U.S. 41 (1999) – holding unconstional on vagueness grounds an ordinance that allowed officers to disperse suspected gang members when they were "loitering,’ which was defiend as remaining in any one place with no apparant purpose.

Here in SB 1070 the issue was Section 2 (now amended by HB 2162) that would require state and local police officers "when practicable" to check the immigration status of individuals whom they stop, detain, or arrest if they have "reasonable suspicion" to believe the suspects are in the country illegally. Among other provisions, the law restricted the use of "race, color, or national origin … except to the extent permitted by the United States or Arizona Constitution."

But how to determine “reasonable suspicion”? It doesn’t exactly give a whole lot of guidelines and can lead to legal citizens getting arrested. Anything short of the person saynig their are an illegal would be tough to figure out. Does an accent count? The ability to speak English, because I know a lot of elder US citizens who don’t speak English.

Iran sucks. Let me make that clear. They suck more than Israel. But as a civilized country, with a rather large history with genocide, there is no excuse whatsoever to deny the Armenian Genocide.

at it’s best

They are celebrating genocide.

Celebrating Genocide

Israel Denies Genocide.

Not knocking your opinion, I just get the feeling that wasn’t the word you meant to use.

 Haha, It’s not AT the site it’s TWO fricking city blocks away. You want to draw the line at THREE blocks?
 Face it, you are all for freedom of religion as long as your religion calls the shots, just like you are all for gay marriage as long as no actual gays can actually get married :>)

Evidence? Or more bull?

C’mon, religion is absolutely at issue. If religion wasn’t at issue then nobody would care about the location at all. We can’t ignore the fact that the 9/11 hijackers were in fact religious zealots of the same religion, it’s pretty fundamental to the whole arguement.

 You keep leaving out the truth that it’s not at the world trade center but blocks away. Just looking for problems when none exist? That’s a common religious tactic to justify their drag on the populace.

The high number of independents watching Fox News belies your claim.

Independents and moderates are not the same thing. I think that most tea baggers would describe themselves as indepedent, for example.

I don’t think Fox News misreports news to fit their agenda