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View Full Version : Nat'l Security banyon other lawyers, legal question on AZ lawsuit for you...


petegz28
07-07-2010, 08:31 AM
In the suit filed against AZ by the Obama Admin said "Federal laws do not permit the development of a "patchwork of state and local immigration policies,"


Since they have not filed any suits against other cities or states for allowing santucary and such does this fall subject to Selective Prosecution??? Or is that strictly for criminal law?

Mile High Mania
07-07-2010, 08:34 AM
I'm no lawyer and definitely not an expert on the topic, but have those "sanctuary" cities and states announced such status via law or simply by merely voicing the idea? My guess is that they are not sanctuary cities by law, just choosing not to enforce the laws... therefore nothing really to challenge in court, like the AZ law.

Personally, I'm in favor of the AZ law...

petegz28
07-07-2010, 08:38 AM
I'm no lawyer and definitely not an expert on the topic, but have those "sanctuary" cities and states announced such status via law or simply by merely voicing the idea? My guess is that they are not sanctuary cities by law, just choosing not to enforce the laws... therefore nothing really to challenge in court, like the AZ law.

Personally, I'm in favor of the AZ law...

Well that is why I am asking. I am not sure how all of that works. When you know a city is deliberately breaking the law and you choose not to act on it I would think it would amount to the same thing as them making a law not to enforce the law.

In fact, I believe Philly recently passed a law that would not allow the Feds to have access to immigration data of criminals.

banyon
07-07-2010, 09:30 AM
In the suit filed against AZ by the Obama Admin said "Federal laws do not permit the development of a "patchwork of state and local immigration policies,"


Since they have not filed any suits against other cities or states for allowing santucary and such does this fall subject to Selective Prosecution??? Or is that strictly for criminal law?

No, so long as there isn't a discriminatory bias against the state (states aren't a suspect class like race, gender to date), then they can file the suit against whoever they wish.

The concept is from the supremacy clause of the Constitution, and if a law conflicts with Federal law, then the Federal law controls. Conflict could be found if the Federal legislation "occupies the field", that is, controls the subject matter almost by definition. One of those areas you can easily imagine would be something like circulation of money. By Constitutional definition the US Mint coins our currency. If a state passed a law and created a mint with a currency to compete with the federal one, then it would be struck down for the conflict and because the Federal government necessarily controls that area of governance.

Immigration is certainly one of those issues in which the Federal government is supposed to have a vital role, so the supremacy/occupation argument is a strong legal argument. It will be difficult to overcome in the Court.

The complete lack of enforcement, of course, renders the Federal scheme useless, but that's a political judgment and not in the purview of the Court.

One argument for the supporters of the law is the 10th Amendment and the "powers reserved" clause, but it has been a long time since that argument prevailed on any topic. The political pundits will mention it and the mobs will probably shout about it, but in the end, I don't think it makes sense to pin your legal hopes on it.

Instead, were I the AZ solicitor's team, then I think underscoring that the law only corresponds with the Federal law, doesn't literally conflict in any way, and that it specifically references turning people over to federal immigration and that they have control of the issue is the best way to uphold the law.

petegz28
07-07-2010, 09:33 AM
No, so long as there isn't a discriminatory bias against the state (states aren't a suspect class like race, gender to date), then they can file the suit against whoever they wish.

The concept is from the supremacy clause of the Constitution, and if a law conflicts with Federal law, then the Federal law controls. Conflict could be found if the Federal legislation "occupies the field", that is, controls the subject matter almost by definition. One of those areas you can easily imagine would be something like circulation of money. By Constitutional definition the US Mint coins our currency. If a state passed a law and created a mint with a currency to compete with the federal one, then it would be struck down for the conflict and because the Federal government necessarily controls that area of governance.

Immigration is certainly one of those issues in which the Federal government is supposed to have a vital role, so the supremacy/occupation argument is a strong legal argument. It will be difficult to overcome in the Court.

The complete lack of enforcement, of course, renders the Federal scheme useless, but that's a political judgment and not in the purview of the Court.

One argument for the supporters of the law is the 10th Amendment and the "powers reserved" clause, but it has been a long time since that argument prevailed on any topic. The political pundits will mention it and the mobs will probably shout about it, but in the end, I don't think it makes sense to pin your legal hopes on it.

Instead, were I the AZ solicitor's team, then I think underscoring that the law only corresponds with the Federal law, doesn't literally conflict in any way, and that it specifically references turning people over to federal immigration and that they have control of the issue is the best way to uphold the law.

Thanks.