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9th Circuit upholds preliminary injunction against enforcement of Arizona's immigration law. Comments by Roger Algase, Esq.

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On April 11,  2011, in a 2-1 decision, a three judge panel of the US Court of Appeals for the 9th Circuit upheld the District Court's grant of a preliminary injunction against enforcement of Arizona's draconian immigration law, S.B. 1070. The majority opinion, by Judge Richard A. Paez, held: "By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government's authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DSH agents. As a result, Section 2B interferes with Congress' delegation of discretion to the Executive branch in enforcing the INA."


Nothing could be clearer than this on the subject of Arizona's attempt to usurp federal power over immigration enforcement. However, the dissent, by Judge Carlos T. Bea, tried to get around the federal pre-emption doctrine by giving an expanded and distorted meaning to the single word, "cooperate", in INA Section 1357(g)(10). This section, unlike Section 1357 (g) (1)-(9), does not require an agreement by state officers with the "Attorney General" [DHS] in order for state officers to participate in immigration enforcement. Instead, it gives state officers the power "to cooperate with the Attorney General" in certain aspects of immigration law enforcement, even absent an agreement with the federal government.


Despite Judge Bea's attempt to twist the meaning of the word "cooperate" by using a very broad dictionary definintion, completely disregarding the context of the above statutory provisions, that would let Arizona do almost anything it wants under the pretext that is "cooperating" with the federal government,  it is clear that nothing in the INA gives the states the power to determine their own immigration enforcement policies or priorities.


However, Judge Bea's opinion may pave the way for a possible attempt by the radical right bloc in the US Supreme Court to overturn federal pre-emption in immigration enforcement entirely and to give the states free rein in passing whatever punitive anti-immigrant measures they want. One single misinterpreted word or phrase can make a great deal of difference. Take, for example, the phrase "bear arms" in the recent Supreme Court decision invalidating gun control legislation in the District of Columbia. In that decision, the Court found that " bear arms" means the power of individuals to keep weapons in their homes for their own private purposes.


This extremely broad definition, which is now the law of the land, would have no doubt surprised Julius Caesar, one of the greatest military commanders of all time.  In Caesar's Gallic War he writes that in the camp of his enemies, the Helvetii, there were records of the number of men who were "able to bear arms" ("qui arma ferre possent"). The obvious meaning was to bear arms for the purpose of joining an army or militia, not for private purposes. 


 Another verbal distortion by right wing ideologues which we have certainly not heard the last of, and one which may touch off a tsunami in America's immigration landscape, is the meaning of the phrase "subject to the jurisdiction" in the 14th Amendment's grant of birthright US citizenship. Anti-immigrant advocates who want to narrow the Constitutional protection of birthright citizenship for US born children to the vanishing point are trying to equate the term "jurisdiction" with "allegiance" to the US, a completely different concept.


But "jurisdiction" comes from the Latin juris , the genetive case of ius, "law" and dictio, from the infinitive dicere, "to state". In other words, jusrisdiction simply means the power to say what the law is. In ancient Rome, this power was exercised by magistrates and other legal officers over both Roman citizens and non-citizens alike. "Jurisdiction" has nothing to do with allegiance.  By confusing jurisdiction of the United States with questions of their parents' citizenship, immigration status and allegiance, immigration opponents are hoping to render millions of American-born children of foreign born parents stateless or illegal from the moment of birth.


For the moment, the 9th Circuit dissenting judge's attempt to overturn established law, namely federal pre-emption over immigration enforcement, by distorting the meaning of an isolated word or phrase has not succeeded. But we need to be on guard for more such attempts as Arizona's immigration law moves toward its inevitable rendez-vous with the US Supreme Court.

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  1. Brittanicus's Avatar
    CITIZENS! IT'S INCOMPREHENSIBLE THAT TRAITORS IN OUR COUNTRY, WOULD PLACE A FOREIGN COUNTRIES RIGHTS FIRST? THIS IS A VIOLATION OF OUR SOVEREIGNTY RIGHTS, BY THE ACTIVIST JUDGES OF THE 9TH CIRCUIT COURT

    Very few State lawmakers understand the massive financial implications, for not serving the wishes of citizens and legal residents. Utah specifically is a relatively newcomer to the economic effects of illegal immigration as it's not a frontier State. Thousands of economic illegal migrants and immigrants, who have already exhausted millions of dollars from the suffering State of Arizona, will be looking desperately for another State to drain. The Mormon State has essentially failed its population, with offering a unconstitutional Guest Worker program and other benefits, will soon learn their mistake as foreigners will sweep across the State line.

    A repeat performance as in the Sanctuary States of California and Nevada, the schools will be swarmed by the progeny of illegal aliens and US children will get less attention from overtaxed teachers. The Utah school system will have to hire more bilingual teachers, demanding more money from taxpayers. Court procedure will need more interpreters, as the criminal aliens arrive to decimate the State. The hospitals will be raided next with minor afflictions and major illnesses, as the illegal Guest workers will inundate emergency rooms and their uninsured family members. Illegal females tend to have large clutches of newborns, with one to be conceived; to be paid for by hard working Americans. It's a fact that the majority of businesses that hire guest workers pay nothing towards their health care or the young children's education. Georgia on the other hand obviously convinced of the perils of giving into open border lobbyists and radical groups will inspire other States to enact harsher laws.

    Although most harsh Georgia laws were sucked dry by, pro business interference, causing uproar amongst citizens and residence, specifically as they tried to hide their cowardice by unrecorded vote. All of these politicians that " on the take" will be intently remembered, when they come-up for re-election Massachusetts although not fully enacting laws similar to Arizona has brought some saneness to its people.

    THE UNITED STATES HAVING BEEN INVADED BY ILLEGALS, WITH THOSE IN POWER HAVING IGNORED THE FINANCIAL CONSEQUENCES IN OUR FUTURE; NOR HAS IT SLOWED? American citizens and residents must impose a mandatory E-Verify Nationwide, to enforce attrition and stop this immigration travesty. We must throw out all the conspirators who are in collusion with Mexico's President Calderon, including the 9th Circuit Court or any other potentate who uses the United States as a pressure valve from their degrading mismanagement and corruption, by exporting their desperate and poverty to our country. Also be aware illegal aliens are voting in our elections, but are not being sentenced to prison for this fraud and a danger to our slipping democracy.

    What most prudent people are asking is why do foreign corrupt governments have a right to interfere in American immigration politics? This is according to the 9th circuit hidden away in the Liberal-Democratic Sanctuary City of San Francisco, where the prosecutors released illegal alien gang-member Ramos, to slaughter a family of three leaving a mourning Mother?

    The United States is sinking deeper into fiscal quicksand, with a 14 trillion dollar deficit that is climbing ever faster. We cannot afford to sustain the rest of poverty stricken governments, who dump their indigent people in our laps. We must cut back on foreign aid stop policing the rest of the world. The wars in the Middle East are depleting our own people's welfare, the futures for our own grandchildren.

    The war is at our open borders and we must halt the smuggling of drugs, people and criminals that are killing innocent Americans wholesale, nationwide. This country is importing contagious diseases, which have spread quietly and not uttered by the government; but carefully concealed. Other States has signed on to federal law of Secure Communities to fingerprint and remove criminal aliens from their jurisdictions Arizona is steadfast in its immigration policing laws and although dealt a blow by the Liberal judges in the ninth circuit court of appeals is resolute on its journey to the Supreme court, to defend its constitutional rights of its populace. Our only chance for survival is the growing extension of the TEA PARTY, as it moves apart from the Republican elites. The Tea Party is ready to face the battle lines being drawn in the forthcoming 2012 budget war. Join now and be part of the sane movement, to end the facade that is the illegal immigration occupation of our country. Find the facts not lies at the pro-sovereignty web pages of NumbersUSA. In addition the TEA PARTY will abruptly end special no-tax privileges to corporations like General Electric.

    Thousands of corporations are using foreign havens to hide millions, perhaps billions of dollars in foreign countries, thanks to the tax breaks given to these entities by political parties, from lobbyists filtering secret brown-bag cash and large campaign contributions. We need more leaders like Sen. Rand Paul, Rep. Michele Bachmann, Rep. Anthony Weiner with the fury to do the right things for this ailing country. Cut out illegal immigration and we will save hundreds of billions in federal and State entitlements. While Americans get ready to file these tax returns, shareholders in these mega corporations receive benefits the average man can only imagine. We must stop this rot in the tax code so every corporation; business must pay its fair share. Remember the TEA PARTY is your revenge on the unfair laws that govern us. They are the only retribution we have against the rot in our own government.

    CALL UP YOUR CONGRESSIONAL REPRESENTATIVE OR SENATOR, STATE OR FEDERAL AND PRESS THEM TO ENACT STRINGENT IMMIGRATION LAWS NOW OR THEY WILL BE VOTED OUT OF OFFICE.

    No Copyright, Ever! To distribute freely.
  2. Lee Richan's Avatar
    For the average person merely trying to do good to his/her fellow man, Rodney King's words ring in our ears (plus alpha): "Why can't (the government get off our backs so) we all get along?" Great points, all. I'll be there.
  3. Michael's Avatar
    My husband and his mtehor escaped the Soviet Union in the seventies.You should see the eye rolls and irritation when someone goes off on one of those "Our rights are being shattered!" rants.My MIL was just diagnosed with alzheimers, and even SHE can still process enough to call me occassionally after watching the news and give me a rant that would burn Michael Moore's ears.
  4. Roger Algase's Avatar
    I am not clear about the point of Michael's comment. Is he trying to say that the Soviet Union was worse than Arizona? Well, of course it was, much worse.

    But does that mean that Arizona and other states which have laws aimed at creating fear and terror in minority communities and depriving people of all legal and human rights based solely on their immigration status, or lack of it, are justified in trying to imitate the Soviet Union?
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