Archive for July, 2010


Ruling on Arizona Law

   Posted by: Robert    in Law

This afternoon, a federal judge in Arizona granted a preliminary injunction against portions of the Arizona immigration law, SB 1070.  Although the federal government had asked for the entire law to be struck down, the judge declined to grant an injunction against the law in its entirety.  That is not, however, anything close to a win for Arizona or the American people; it simply means that the law was killed surgically, rather than with a blunt instrument.  Reading through the ruling itself, it appears that the judge completely bought into the federal government’s preemption argument, but largely failed to make a convincing case for why its ruling is correct.  What follows are my first impressions on select parts of the ruling.


I have wondered since I first heard that the US government was suing Arizona how the federal government would justify standing to bring forth its lawsuit.  In making her ruling, the judge offered no insight as to how she found the federal government to have standing.  Though I wasn’t surprised by this — neither side briefed the issue (that I saw) and nobody (I’ve seen) has asked this question besides me — I was disappointed.

The question of preemption is fundamentally a question of which law applies to a particular case.  In the normal preemption case, a party is challenged under a state law, and mounts a defense saying that the state law is preempted by federal law.  If the state law and federal law conflict, the Supremacy Clause dictates that federal law must win, meaning that the state law is preempted.  The conflict can either be direct, in the sense that the federal law and state law say two incompatible things, or the preemption could be made by rule, if the federal government affirmatively prevents the states from legislating in a given area.  Regardless of how preemption happens, the party harmed was always the person or entity against whom the state law would apply if not for preemption.

Today, without any discussion, the judge has necessarily found that the federal government is itself harmed when a state passes a law which is incompatible with federal law.  While it’s possible that I’ve missed something about how standing works, this (implicit) theory of standing seems incredible to me.  Last I checked, the federal government doesn’t have a free-standing license to challenge any state law that it doesn’t like.

Of course, for the sake of fairness, I should note that it’s at least plausible that the federal government could claim to be harmed by the “burden” Arizona would place on it by running immigration checks and referring illegal aliens to ICE for processing.  However, that only opens the door to some of the challenges posed to the Arizona law, not to the entire thing.

Section 2b

In striking down this section, the judge makes much of a drafting error made in the original SB 1070 and later corrected in a subsequent amendment passed in short succession.  The judge is quick to criticize the second sentence of this section, which says that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.”  In the law, as amended, this naturally follows the preceding sentence which says what Arizona law enforcement must do “[f]or any lawful stop, detention or arrest.”  The judge, however, refused to read the two sentences as a cohesive whole because the original unamended SB 1070 spoke only of “lawful contact,” rather than of “lawful stop, detention or arrest.”  There is little reason to doubt that the Arizona legislature intended both forms of that sentence to mean the same thing, and that the amendment was made to clear up the obvious vagueness of what “lawful contact” actually entails.  The judge, however, would apparently hold the two phrases to mean something so radically different that the second sentence and first sentence should be read as if they are in entirely separate sections, despite the absurd result that analysis produces.

Section 5

In striking down this section, the judge turns established precedent squarely on its head.  She begins with the following observation:

“States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” De Canas, 424 U.S. at 356. Interpreting De Canas and considering a state law sanctioning employers who hire unauthorized workers, the Ninth Circuit Court of Appeals held that, “because the power to regulate the employment of unauthorized aliens remains within the states’ historic police powers, an assumption of non-preemption appli[ed].” Chicanos Por La Causa I, 544 F.3d at 984; accord Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (observing that “[i]n all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress” (internal quotations and citation omitted)).

Having read that paragraph, it would appear that the viability of a law limiting illegal aliens from applying for or performing work should be an easy win for Arizona.  Arizona’s law is, after all, directly on point with the above cited cases.  By the end of the section, however, the judge has talked herself into the exact opposite conclusion.  The linchpin: Arizona attaches a penalty to violating its law.

Although I haven’t read the cited precedent, I find it highly unlikely that the cases above involved state laws with no penalty for non-compliance.  After all, police powers are rather meaningless if the police have no power to enforce them.

Section 6

In sum, this section amounts to unconstitutionality by virtue of hopelessly confusing federal policy.  The essence of the judge’s conclusion on this section is that it is simply too hard for Arizona police to know what is and isn’t a removable offense, so that “there is a substantial likelihood that officers will wrongfully arrest legal resident aliens.”

Although I find it illogical to say that this law is preempted as opposed to, say, that it is unconstitutionally vague, I find it hard to fault the judge too deeply for her outcome on this point.  From everything I understand, the entire concept of a “removable offense” is, truly, a mess.  Nobody really knows whether or not an offense mandates removal of the alien until the final appellate court has its say.  This is an area where Congress really should step up and add some much needed clarity to the law.


Overall, the quality of the ruling strikes me as being pretty bad.  The key through it all, however, is that the court bought the federal government’s argument of preemption and ran with it to every area of the law where it was necessary to strike the law down.  The ruling, however, leaves open some important questions which should be addressed in a final ruling on the merits at some point in the future.

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Sharia Presents a Liberal’s Paradox

   Posted by: Robert    in Law

Recent legal news has begin to cover a troubling change beginning to play at the edges of American law.  In New Jersey, the state’s court of appeals set aside a shocking ruling from one of the state’s trial courts which would have held that a man who abused and sexually violated his wife because “he was operating under [Islamic religious] his belief that it is, as the husband, his desire to have sex when and whether he wanted to.”  The court of appeals, in no uncertain terms, properly held the trial court’s opinion to be inconsistent with both New Jersey and federal law.  This case, however appropriately it appears to have turned out, appears, to me, to raise a significant problem for the left.

It goes virtually without saying that the interest in merging Sharia law with US law is an exercise being undertaken exclusively by leftists.  Britain, of course, has actual Sharia courts, established as arbitration tribunals, which hear cases and issue rulings which have the force of law.  In other European nations, national courts have occasionally ruled consistent with Sharia principles despite national laws which point in the opposite direction.  France, though they haven’t got Sharia courts, do have a Sharia tax code which aims to deal with some of the peculiarities of Islamic financial management.  The US, so far, has only rogue judges in liberal states.

So far, Sharia courts and Sharia-related court decisions have all been based on one of three general legal categories: probate, equity, and domestic violence.  It is the cases of domestic violence which are most troubling, and the case in New Jersey illustrates precisely why.

In the New Jersey case, as mentioned, a man raped his wife on multiple occasions under the belief that it was his right, as her husband, to do so.  Had he done that even 35 years ago, it would not have been a crime in the US.  However, as of 1993, spousal rape became a crime in every corner of the United States at the urging of the feminist movement.  In addition to US law, spousal rape is identified in the UN Declaration on the Elimination of Violence against Women, Article 2(a) as a form of violence against women.  There is, I think it is safe to say, a solid consensus which sweeps broadly against ideological lines that cannot tolerate the behavior that took place in New Jersey.  As the self-declared champions of women’s rights, women’s equality, and the fight to end violence against women, it would seem that the left has a vested interest in making sure that no woman is ever raped by her husband ever again.

The stakes, however, go even beyond the question of spousal rape in Islamic marriages.  From what I have been able to find of the trial judge’s logic, it appears to be relatively unbounded.  If the touchstone of the judge’s ruling is the “belief that it is, as the husband, his desire to have sex when and whether he wanted to,” what about that is so closely bounded to Islam that it could not be applied elsewhere?  After all, that was everyone’s belief — and the law — until 1975, meaning most of America grew up in a country where there was no such thing as spousal rape.  And even further, what if I find that it is my belief as a man my “desire to have sex when and whether [I want] to” with anyone that I please?  There would be no such thing as rape, if only I didn’t believe in it.

Rulings like one in New Jersey place the left on a collision course with itself.  It is simply not possible to champion women’s rights and a culture which systematically represses and does violence to women at the same time.  But perhaps the thought that they might even try is part of the reason that the left, right now, has a woman problem.  I, for one, would rather see them win some women back than bury the rest of us under Islamic law.

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Economics, Crisis, and Missing the Point

   Posted by: Robert    in Uncategorized

With Obama having now signed the Dodd-Frank financial reform bill into law, it’s worth pausing for a moment or two to wonder what, exactly, might have been the point.  For most of us out here in the country at large, the main thing that we want from this bill (ignoring, for a moment, that most of us don’t want this bill) is to know that the economy is never again going to go into a tailspin the way it did in 2008.  Even though nobody knows how the law works, we can at least be sure that it will prevent another economic breakdown.  Indeed, thousands of pages should be more than enough to ensure that another economic crisis won’t ever come up again.  The best news is, we’ll find out if it worked as soon as another crisis happens.

Fortunately, it seems that the next crisis may not be too long in coming.  Though nobody can predict a crisis with certainty, it does appear that the country is on a dangerous ledge.  Even Dodd says so.  But with the bill in place, we can at least be secure in the knowledge that we will be able to find out, through the course of the crisis, how well law prevents the next crisis from occurring.

If that seemed like it was worded awkwardly, it’s because the concept itself is awkward.  According to Dodd, we can only know how well the bill works when the next crisis hits.  But the supposed point of the bill is to prevent another economic crisis from ever occurring.  The tautology is fascinating, because between Dodd and Obama, we know for a fact that the only thing this bill can do is fail.

Of course, the open secret about te bill is the fact that it has nothing to do with actually preventing another crisis. In truth, Obama and Dodd are probably looking forward to another crisis, in hope of using their new toolkit to extend their stranglehold over American business.

But for ordinary Americans, the key measure of success won’t be whether the government can successfully wind down a bank that’s “too big to fail.” Success to us means having jobs, having an accurate value for our homes and financial investments, having money left after taxes to put in the bank, and having a bank left to put our money into. Nothing in the bill addresses any of those concerns.

Once again, the government has (willfully) missed the point.


Stalking Talk Radio

   Posted by: Robert    in News

Drifting across the Internet this evening, I happened across a rather peculiar story in the LA Times opinion section.  The story is as entertaining as a Sunday drive gone bizarrely wrong; which, when you get right down to it, is pretty close to what the story is all about.

The story, you see, is about the author who was out driving one day when some guy in a mini-van pulled up along side him and told him that he should be listening to talk radio, rather than the old music he was playing instead.  To most of us, of course, this would come as more than a bit of a surprise.  We don’t normally plan to be interrupted from our cocoons of roadway silence except in case of some sort of emergency, and it would be hard to fault the author for finding the whole encounter rather rude.  And so, like any of us in his place might do, the author decides that the best response is to roll up his window and waste an untold amount of his day following and stalking the van.

The author, it seems, had just entered into to the Left’s curious love affair with hate.

To even think about chasing the van out of town should be far enough over the edge for any man to consider, but as he followed the man in the van, his mind seemed to wind down more bizarre back alleys than his car is ever likely to find.  He “tailed the driver of the Caravan as indiscreetly as possible, hoping he’d see me, realize who I was, get nervous, then scared, then terrified, then have a massive coronary and slam into a 300-year-old sycamore.”  A prayer that another man receive the death penalty, simply for suggesting a different station on the radio.  And a murderous prayer that he would be that conservative’s angel of death.

Luckily, in the end, he backs off from his murderous rage, and sets about writing this interesting anecdote for the paper.  No harm, no foul, I suppose.

But what, I wonder, might be the “symptoms of a sick society” which could cause a man who is ideally so tolerant of the opinions of others to chase out of town those opinions which differ from his own.  It certainly isn’t Internet-promoted “democratization [that] leads people to believe that their opinions not only count but must be broadcast at every opportunity.”  Or, who knows, perhaps it is.  A man with a bumper sticker and who actually gets paid when his ideas are broadcast is certainly going to be farther ahead than a man with an old van with power windows.  But no.  The freedom of speech and an open dialogue of political discourse are the light and cleanser which wipe away rage.  The answer, surely, must be something else.

Perhaps, in the end, the author gives us just the hint that we need to find out what the true source of “uranium-enriched behavior” in political society is.  It may simply be the impulse response to chase away disfavored ideas while casting those who express those ideas in a hostile light.  Perhaps it is not “democratization” that is the problem, but the attempt to shut down, thwart, bypass, suppress, chase away, and ram democracy into a 300-year-old sycamore that is really at fault.

Perhaps what we really need to do is put everyone on the Left through classes in anger management.