Congress passed law in 1996 that contradicts pre-emption argument

posted at 9:38 am on July 31, 2010 by Ed Morrissey

The federal judge who heard the preliminary arguments in the lawsuit brought by the Obama administration against Arizona over its immigration-enforcement law found a likelihood that the effect would be to force the federal government to reallocate its enforcement resources to meet the demand, and Judge Susan Bolton ruled that would impermissibly pre-empt federal prerogatives in immigration enforcement.  US News’ Chris Battle finds one problem with that argument.  In 1996, the federal government passed a law encouraging states to do exactly what Arizona planned to do with SB1070 — and a number of states have followed suit:

Back in 1996 (when fanny packs were still cool, in some circles) it was time to get tough on immigration, and an interesting little law was passed. Congress deemed it appropriate for state and local law enforcement to enforce immigration law. In the inscrutable manners of Washington (where all legislation seems to be named with insufferably cute acronyms or indecipherable legislative codes that read like security passwords), this law came to be known as 287g.

Want to know what 287g says? Well, just read the law in Arizona. Yes, that law. The one causing protests in the streets of Phoenix, hysteria on cable talk shows and confusion in the courts. The one that empowers state and local law enforcement to enforce immigration law.

The federal law that has been on the books for more than decade … empowers state and local law enforcement to impose immigration law. According to U.S. Immigration and Customs Enforcement, more than 60 jurisdictions in states across the country have taken advantage of this law.

Florida, Virginia, Oklahoma, Ohio, New Hampshire, California, and even Massachusetts are among the states in which local police are enforcing immigration law.

The two laws aren’t quite identical, but 287g and SB1070 have the key points in common:

There are differences in the federal and Arizona law but the primary gist of each–the aspect that has caused most of the ruckus–is the provision that allows a local law enforcement officer, who in the course of his or her regular duties has reasonable suspicion that an individual is in the country illegally, to request identification and, if none is provided, to detain that individual for potential deportation.

But there is an important hitch to using this as a counter to the DoJ suit:

The federal version of the law requires the Department of Homeland Security to approve state and local requests to enroll in the program; then ICE is to provide training and assume supervision of cross-designated officers when they are engaged in immigration enforcement. The Arizona law, on the other hand, actually requires all law enforcement to enforce immigration laws regardless of whether DHS has given its blessing. If the federal law is gingerly tip-toeing into the shallow end of the immigration pool, the Arizona law is a cannonball dive into the crowded deep end.

Well, that could be another pre-emption argument.  Congress authorized ICE to deputize states and localities, in a sense, to enforce immigration law.  If Arizona claims to deputize itself, that would be a challenge to the law Congress passed, albeit in a completely different sense than the DoJ argued pre-emption in Bolton’s court.  That may be why Arizona may have avoided making this point in its defense.

However, it is clear that this law undermines the DoJ’s pre-emption argument that states can’t reallocate federal enforcement resources.  Not only should they be able to do that on any rational sense of law enforcement — does the DoJ reject referrals on drug charges because they don’t like prosecuting a lot of those cases? — but clearly Congress intended the states to do just that.  It makes a lot more sense to use existing state and local law enforcement to find and detain illegal immigrants and refer them to the feds than to create a new, large, and duplicative law enforcement agency under ICE in every state to do that job.

Congress should press DHS to deputize Arizona’s police and sheriffs as part of the 287g program and end the nonsense lawsuit that puts the Obama administration in the position of suing to stop enforcement of laws it’s failing to enforce itself.


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then ICE is to provide training and assume supervision of cross-designated officers when they are engaged in immigration enforcement.

I heard this argument from protesters that Arizona officers conducting immigration status might be looked at as racial profiling so the only answer is to have the ICE perform these tasks..because…it isn’t racial profiling anymore.

Electrongod on July 31, 2010 at 9:47 AM

It’s all politics, not law. It’s the, “do as I say not as I do”, mentality. Wow do we ever need to clean up Washington, DC. Congress will be a thing of the past in a few years.

mixplix on July 31, 2010 at 9:48 AM

Meh, no one reads or follows the laws on the books.

mossberg500 on July 31, 2010 at 9:49 AM

Not going to happen with this administration, but should happen down the road. In a more perfect world, Judge Bolton would be asked to resign following her decision on this matter. Several stories are festering out of this trial, one of which should focus on this Judge and her failure to uphold the law of this land. What communications took place (direct and indirect) between this Judge and the WH?

Keemo on July 31, 2010 at 9:51 AM

Judge Bolton is an example of a liberal activist judge who will torture the facts and twist the law to get the result she prefers. Kagan is cut from the same mold. If squishy Republicans in the Senate don’t start fighting fire with fire on judicial confirmations, the federal judiciary is going to be overrun with exactly this kind of judge, and the damage they will do to the constitution and the legal infrastructure of our country is incalculable.

Bolton’s decision on the Arizona law is one of the most outrageous abuses of judicial authority I have ever seen. The political motivations of Holder and Obama are transparent, as are Judge Bolton’s.

novaculus on July 31, 2010 at 9:51 AM

I assume this was signed into law by Clintoon himself?

Del Dolemonte on July 31, 2010 at 9:53 AM

Keemo on July 31, 2010 at 9:51 AM

novaculus on July 31, 2010 at 9:51 AM

LOL, crr6 assured me a couple of days ago that the term Activist Judge was meaningles!

Del Dolemonte on July 31, 2010 at 9:55 AM

Del Dolemonte on July 31, 2010 at 9:55 AM

That crr6 thing must be a real charmer to be around in person. Jeez, and Liberals wonder why the term “self-centered” is commonly used to describe them.

Keemo on July 31, 2010 at 9:59 AM

The federal version of the law requires the Department of Homeland Security to approve state and local requests to enroll in the program; then ICE is to provide training and assume supervision of cross-designated officers when they are engaged in immigration enforcement.

Then let’s freaking do this.

hawkdriver on July 31, 2010 at 10:02 AM

When are you people gonna read the law? SB1070 is not enforcing federal immigration, it is basically telling Arizona’s state and local government agencies that they have to check the immigration status of someone suspected of being an illegal and they cannot block those attempts. It merely requires the suspect to be detained and if found to be illegally here to turn them over to ICE.

The way it is now, most local gov’ts just release these criminals for fear of being called racists or because they are Dems who want illegals here for whatever sick reason they can justify.

Sporty1946 on July 31, 2010 at 10:08 AM

This is all about a very courageous and gutsy female Governor who saw what illegal immigration was doing to her state and what the federal government was NOT doing about it, so she decided the state would do something about it.

It is also about a rather naive, pompous, and extremely narcisstic fool of a President who did not appreciate being one-upped by a very courageous and gutsy female Governor on the issue of illegal immigration, and so he decided to do something about it.

Thing is, she did the right thing to begin with.

He clearly did not.

Therein lies the difference.

pilamaye on July 31, 2010 at 10:09 AM

Susan Bolton is not so much an activist as simply a dim bulb. Locally, she is considered to be one of the dumbest (if not the dumbest) federal judges in Phoenix. Her opinion in the immigration case demonstrates how well-deserved that reputation is; her interpretation of the statute (and legislative intent) was ludicrous.

AZCoyote on July 31, 2010 at 10:11 AM

Congress should press DHS to deputize Arizona’s police and sheriffs as part of the 287g program and end the nonsense lawsuit that puts the Obama administration in the position of suing to stop enforcement of laws it’s failing to enforce itself.

Shouldn’t the GOP be shouting this loud and everywhere?

Oh I forgot, the stupid party.

I bet Palin says something though :)

aikidoka on July 31, 2010 at 10:11 AM

Congress should press DHS to deputize Arizona’s police and sheriffs as part of the 287g program and end the nonsense lawsuit that puts the Obama administration in the position of suing to stop enforcement of laws it’s failing to enforce itself.

That would effectively block the unnatural naturalization of undocumented Democrats.

VibrioCocci on July 31, 2010 at 10:12 AM

Isn’t just like Congress to make a law telling others to do their job but only if specifically instructed. They are more then useless.

Cindy Munford on July 31, 2010 at 10:12 AM

I don’t know from crr6, but I have been reading appellate court rulings for too many years and seen too much BS to have patience with the nonsense any longer. Some of it is pure incompetence. (I know, you are all shocked, just shocked to find that political appointments can lead to damned fools on the bench.) But much of it is judges who are intentionally prostituting themselves and pimping their judgeships for personal and political reasons. Since the Democrat “borking” of Judge Bork, many judicial nominees have decided to stonewall in their confirmation hearings, concealing their judicial philosophy (if they even have anything that qualifies) and simply lying about themselves and their plans once on the bench. (See Sotomayor’s testimony on the Second Amendment during her confirmation hearing, and then review her ruling on the McDonald case. She is a damned liar.)

Why Republicans permit this conduct is unfathomable. Any candidate who does not speak frankly about their judicial philosophy should be rejected. Any nominee who doesn’t have a track record to support their claims about their judicial philosophy should be likewise rejected.

novaculus on July 31, 2010 at 10:15 AM

AZCoyote on July 31, 2010 at 10:11 AM

One reading of her ruling confirms that she is not merely a political hack, she is an incompetent hack. Even in the 9th Circuit I think there will be at least a couple of judges who won’t be able to stomach stuff like intentionally misreading the statute.

I recommend folks read Marc Levin’s and Heather McDonald’s scathing reviews of the ruling. Andy McCarthy has some useful comments on McDonald’s piece too.

novaculus on July 31, 2010 at 10:21 AM

I guess we had to pass SB1070 to find out what’s in 287g.

Kafir on July 31, 2010 at 10:21 AM

Del Dolemonte on July 31, 2010 at 9:55 AM

That crr6 thing must be a real charmer to be around in person. Jeez, and Liberals wonder why the term “self-centered” is commonly used to describe them.

Keemo on July 31, 2010 at 9:59 AM

I cited an example of true Judicial Activism, namely the all-Democrat Florida Supreme Court colluding to try and steal Florida’s 2000 election results for Algore, and she pretended it never happened. Probably because her “law professors” never taught it as part of the curriculum at Moe Howard U. Law school.

Del Dolemonte on July 31, 2010 at 10:27 AM

Why Republicans permit this conduct is unfathomable.

novaculus on July 31, 2010 at 10:15 AM

The game in DC changed for good after the Clintons got their hands on those 900 FBI files on all of their political opponents. No one had ever done that before.

Del Dolemonte on July 31, 2010 at 10:29 AM

Congress should press DHS to deputize Arizona’s police and sheriffs

Hahahahaha!!!!!!!!!!

And LOSE all those potential DEMOCRATIC votes?

GarandFan on July 31, 2010 at 10:32 AM

Can’t help out his drug running buds south of the border if he has to enforce security or doesn’t stop Az from doing it for him. The Pusher in Chief has a really big corner and is just protecting his supply line.

Kissmygrits on July 31, 2010 at 10:33 AM

“…her “law professors” never taught it as part of the curriculum at Moe Howard U. Law school.”

Del Dolemonte on July 31, 2010 at 10:27 AM

Unfair to Moe Howard!

novaculus on July 31, 2010 at 10:46 AM

Sheriff Joe has 287g trained officers here. Carrot and stick; the feds investigate the crap out of the Sheriff and CAN withdraw 287g support for ANY group disagreeing with ‘The Man’.

Jeff2161 on July 31, 2010 at 11:12 AM

Probably because her “law professors” never taught it as part of the curriculum at Moe Howard U. Law school.

Del Dolemonte on July 31, 2010 at 10:27 AM

I’m sure they discussed the ‘Stolen election tm) at length along with the danger of a radical conservative Supreme Court.

Jeff2161 on July 31, 2010 at 11:14 AM

Support 287g!

OxyCon on July 31, 2010 at 11:17 AM

What Arizona should do is to FOLLOW the OBAMA example! In the same way that Obama issued a differently worded drilling moratorium Arizona should vote on a new law.

What their law should state is that ALL law enforcement people in Arizona MUST participitate in this Federal Program as described by 287g!

The only lawsuit against such a law, as filed by third parties like the ACLU or foreign governemnts, would have to be in a federal court and against the federal government!

Freddy on July 31, 2010 at 11:18 AM

Fanny packs?!?

KS Rex on July 31, 2010 at 11:22 AM

Our SWFL county enforces 287G already … The county deputies were trained by ICE over three years ago … And have holding cells for illegals aliens, waiting to be deported. In fact our local news-rag did a SOB story just last week on the prison costs. BUT this deporting illegal aliens reduced school needs so much they are now having to close schools, layoff excess union teachers, because of not enough illegal alien students — They were forced to admit in the close.

And I believe so does Sheriff Joe Arpaio.

I wondered why the counties in Arizona don’t just do the same? In Rhode Island, the State Police do the same … what gives?

All the Gov needs do is issue an executive order to enforce 287G and enroll at least the State Police to have at it. I would bet getting the State Troopers alone up to speed with 287G would be a big help.

tarpon on July 31, 2010 at 11:23 AM

I hate this administration!

Skullf15 on July 31, 2010 at 11:24 AM

“…her “law professors” never taught it as part of the curriculum at Moe Howard U. Law school.”

Del Dolemonte on July 31, 2010 at 10:27 AM

I’m pretty sure he’s not teaching anymore but with the law firm of “Dewey, Gypem and Howe.”

hawkdriver on July 31, 2010 at 11:38 AM

Intended consequences from 1996? Unintended? Wow. We need a legal scholar that is currently busy playing golf or something mundane, i.e. with time to spare, to crack this case wide open.

Robert17 on July 31, 2010 at 11:48 AM

tarpon on July 31, 2010 at 11:23 AM

You are right about Sheriff A. His deputies have been trained under the 287g program. Which is why he is putting his thumb in the Feds eye over the 1070 ruling.

chemman on July 31, 2010 at 12:20 PM

“Dewey, Gypem and Howe.”

hawkdriver on July 31, 2010 at 11:38 AM

I think that is “Dewey, Cheatem, and Howe”

novaculus on July 31, 2010 at 12:20 PM

If this nonsense continues much longer I’m looking forward to the DoJ suing states that allow their police to search for outstanding warrants, inform other states of people in custody, allowing extradition, and giving a ticket for more than just speeding regardless if when they approach they find no seat belt in use, broken headlamp, improper child seat, no drivers license, or proof of insurance.

I really think all those pro for pot will get behind it.

FeFe on July 31, 2010 at 12:34 PM

This is all about a very courageous and gutsy female Governor who saw what illegal immigration was doing to her state and what the federal government was NOT doing about it, so she decided the state would do something about it.
pilamaye on July 31, 2010 at 10:09 AM

Ditto. I can’t get enough of her. It is water to one dying of thirst. I wish she was President.

You are also right about the fool. He was being more than one upped. States are lining up to save themselves and he chose the usual response – preempt the will of the people

I know this, the States that get control of the illegal invasion will become success stories and the others will become the paupers. This Obama cannot have. He needs to spread the destruction. The plantation system enriches only the bosses and the politicians, while a society of free and lawful citizens spreads the wealth

Congress should press DHS to deputize Arizona’s police and sheriffs as part of the 287g program and end the nonsense lawsuit that puts the Obama administration in the position of suing to stop enforcement of laws it’s failing to enforce itself

Dreamer

entagor on July 31, 2010 at 1:30 PM

Nice to see Ed and HA catching up with the legal arguments made in the briefs filed long ago by AZ and some of the amici curiae (e.g., Mark Levin’s Landmark Legal Foundation) supporting dismissal of the suit, opposing the prelim injunction, etc. 287g was one of several prominent points made. Judge Bolton basically ignored it. I doubt that even the 9th Circuit will ignore 287g. SCOTUS definitely won’t.

dhawbake on July 31, 2010 at 1:31 PM

does the DoJ reject referrals on drug charges because they don’t like prosecuting a lot of those cases?

Now, Ed, thanks to asset forfeiture, enforcing drug laws is what’s called a profit center. Having illegals here to vote is also a profit center, of course….

SDN on July 31, 2010 at 1:41 PM

I think the issue is profiling, and it’s really the core problem, too, for the Dems.

They’ve squawked so much that it will now be very difficult to implement the obvious, which is fair profiling.

AnninCA on July 31, 2010 at 1:43 PM

I have been emailing and tweeting and commenting about 287g for months. Arizona already participates in this program!

Rudy sued to keep NYC a sanctuary city following this law’s passage and lost. All state and local authorities were to report any illegals found during normal business. Not just law enforcement.

coondawg on July 31, 2010 at 1:59 PM

Congress passed law in 1996 that contradicts pre-emption argument

Judge Susan Bolton’s ruling was never about the law, it was liberal politics in the courtroom.

RJL on July 31, 2010 at 2:16 PM

Probably because her “law professors” never taught it as part of the curriculum at Moe Howard U. Law school.

Del Dolemonte on July 31, 2010 at 10:27 AM

I’m sure they discussed the ‘Stolen election tm) at length along with the danger of a radical conservative Supreme Court.

Jeff2161 on July 31, 2010 at 11:14 AM

While totally ignoring the Florida Supreme Court’s first “ruling”, which was smacked down by SCOTUS 9-0, and their second “decision”, smacked down by SCOTUS 7-4. They will also ignore the various Federal Judge smackdowns of Gore in Florida by Democrat-appointed Judges.

The only ruling they will recognize is the second SCOTUS ruling, the 5-4 one, by the same “bitterly divided Supreme Court” that had just ruled against Gore 9-0 and 7-2. Even though that second ruling only addressed the remedy.

Del Dolemonte on July 31, 2010 at 3:13 PM

John Armor practiced before the Supreme Court for 33 years:

It’s been thirty years, and I still miss the classroom. I taught American Political Theory to mostly seniors, Pre-Law or Political Science majors, that long ago. If any of them had submitted a paper as ill-thought-out as Judge Susan Bolton’s decision on the Arizona immigration law, I’d have given them an F, and made them rewrite it from scratch. Here’s why:

The largest point is that this US District Judge ignored the very case that was presented to her for decision. The federal complaint attacked the Arizona law for only one general flaw. It claimed that the state law preempted federal law, and was therefore unconstitutional.

It is grossly improper for any judge in any case to go outside the pleadings and decide the case on different grounds, and even worse, on non-existent evidence, than was presented in the courtroom.

I’ve seen this sort of behavior at this level, just once before in 40 years at the bar. I had a case in federal court in D.C. asking Judge Stanley Sporkin to enforce the 27th Amendment. That was called the Madison Amendment because James Madison wrote it as part of the Bill of Rights in 1789. But it was not declared ratified by Congress until 1992.

Judge Sporkin did not want to enforce the Amendment against the current Congress. His way of avoiding that was a rambling discourse on congressional corruption, which he had witnessed as an intern, 30 years before. In his decision he wrote that he saw Members of Congress accept cash in plain brown envelopes.

There were three fatal problems with his decision. The pleadings said nothing about corruption in Congress. No one presented any evidence on that subject. Lastly, what any judge pulls out of his/her personal memory is not evidence presented in court and subject to cross examination.

The Court of Appeals did not deal with Judge Sporkin’s non-judicial decision openly, by throwing it out. It tap-danced around his errors by ignoring his opinion and writing a brand-new decision on different grounds. In the case of Judge Bolton’s non-judicial decision, not even that mild corrective is likely from the Court of Appeals.

This case goes next to the Ninth Circuit Court of Appeals in San Francisco. Not only is that the most reversed Circuit of all, it is reversed more often than all the other Appeals Courts taken together. So, it is likely the next decision on the Arizona law will be just as bad as the first one. The final word, however, will be in the US Supreme Court, where one can hope that five Justices will take the Constitution seriously.

Here are the provisions Judge Bolton said were preempted by federal law: to determine the immigration status of someone already lawfully stopped, if there is reasonable suspicion they are illegal. (This is identical to federal law.) To make it a crime not to carry alien registration papers. (Also, identical to federal law.) To make it a crime for illegal aliens to work in Arizona. (It is already illegal for illegals to work anywhere in the US, including Arizona.) To authorize the arrest of anyone where there is probable cause to believe they have committed a deportable offense. (Again, identical to federal law.)

The court then analyses the Arizona law, point by point. Anyone arrested, or legally detained, under the state law “shall be presumed NOT to be an illegal alien,” if they have valid state, tribal, or federal ID papers with them. The court then ignores the language of the law, and reads it to mean that EVERYONE’s status must be checked. Then the court determines that this false reading would overburden the status-checking offices of the federal government.

The court does not note the irony in the federal argument that even legitimate requests for alien identification would “overburden” federal officials. To note the irony would prevent the court from ruling against a state law, because the federal government is incompetent at its chosen tasks.

The court never deals with the point that state and local authorities do have the authority to enforce federal immigration determinations, as long as they do not exceed the requirements of federal law. Several federal decisions around the country approve of precisely this result.

The court then offers as proof of the preemption of state law, that the federal government has been extremely lax in enforcement of laws against employment of illegals, and the use of false documents by illegals. The idea that federal incompetence requires all state and local governments to match its incompetence, has no support in prior cases.

Del Dolemonte on July 31, 2010 at 3:15 PM

Silly conservatives. The President doesn’t preside over the branch of government that enforces laws.

He’s the King. He gets to make laws, break laws and party long into the night.

ButterflyDragon on July 31, 2010 at 4:50 PM

Congress should press DHS to deputize Arizona’s police and sheriffs as part of the 287g program and end the nonsense lawsuit that puts the Obama administration in the position of suing to stop enforcement of laws it’s failing to enforce itself.

Arizona already has 7 MOA’s through this program. Two of them are at the sate level (Department of Public Safety and Department of Corrections), and 5 are at the local sheriff level.

However 287(g) is not a law in and of itself, it is only a subsection of IIRIRA 1996. A law that passed with the intent of creating a ‘complementary’ atmosphere between state and federal immigration response.

http://www.ice.gov/pi/news/factsheets/section287_g.htm

note the tone of cooperation and sharing responsibilities on this page.

Fighton03 on July 31, 2010 at 4:59 PM

I had two different pages up when I typed the above. I got the 7 number from the older one(the date was 2008), because there are 9 on the page I linked (2 state and 7 sheriffs).

BTW…what is the title ICE puts on the page?? Delegation of Immigration Authority.

Fighton03 on July 31, 2010 at 5:14 PM

The idea that federal incompetence requires all state and local governments to match its incompetence, has no support in prior cases.

Del Dolemonte on July 31, 2010 at 3:15 PM

100+ ^

Lourdes on July 31, 2010 at 6:39 PM

Laws passed by congress don’t matter to an aspiring dictator.

I guess most of you are going to sit on your asses and wait for Obama to push us over the cliff, and hope you can somehow retrieve the situation come November of 2012.

Fools, you are.

Dave R. on July 31, 2010 at 11:18 PM

Meanwhile, voters are profiling elected officials…and are preparing to deport the aliens!!!

landlines on August 1, 2010 at 12:48 AM

Laws are made to be broken…

right2bright on August 1, 2010 at 7:20 AM

I say block off a section going into federal land, say a federal court building, or whatever and release the illegals into that building/property. See how fast ICE steps in to arrest illegals then….

bbordwell on August 1, 2010 at 11:05 AM

If SB1070 is ever actually implemented, the majority of those detained will be hispanics from Mexico. Is this because our police officers will be out there looking for Pancho? No. It will be because the vast majority of illegal aliens in Arizona are from Mexico.

This law was not created to target people based upon their ethnic identity, but upon whether or not they were Americans and/or legal aliens.

It isn’t “racism” when an ethnically neutral law, enforced in an ethnically neutral manner, results in people from a particular ethnic group getting caught more often because they are the ones most guilty of breaking that law.

The left doesn’t know what racism means anymore, it has devolved into a “4 legs good, 2 legs bad” level chant and gratuitous accusation they lob at their enemies like monkeys throwing feces.

leereyno on August 1, 2010 at 11:13 AM

Arguments don’t matter to a liberal bench, political victories are the only things that do.

Axeman on August 1, 2010 at 4:06 PM

Where has everyone been? 287g has been debated in MD for sometime and the Sheriff of Frederick County has taken a lot of heat over utilizing it; the only one who does. Our commissioner candidates are being asked about 287g and SCI and E-verify at the forum the Cecil County Patriots have tomorrow night and I have put that question to our sheriff candidates. Does anyone know that if the free Internet based federal E-verify is not used to confirm citizenship documents in Az by companies and a company is found hiring illegals, they lose their business license for 10 days; a second time and loss of it. It passed court challenges too.

Stupid federal judge ruling on SB 1070.

I guess better late than never.

amr on August 1, 2010 at 10:27 PM