The Immigration Debate: Lawsuit Against Arizona – 04/03/2002 DOJ Memo States that Federal Law Does Not Preempt The States From Making Arrests For Civil and Criminal Violations of Federal Immigration Law.

On July 6, 2010 Attorney General Eric Holder and the Department of Justice, filed a suit against the State of Arizona on behalf of President Obama asking the Federal Courts to rule the Arizona law referred to as SB 1070, the so called “Arizona Immigration Law” unconstitutional.

This writer asserts that the Obama Administration is attempting to usurp powers granted by the Constitution to the Congress, specifically, the power granted to Congress to act as this Country’s legislative body.

This writer asserts that the Obama Administration’s suit against Arizona is intended to accomplish the following;

1)      Impede and prevent the implementation of laws and Agency regulations passed by Congress and signed into law by prior Administrations; specifically, to impede the enforcement of statutes and administrative regulations formulated after the terrorists attacks of September 11, 2001, statutes that were based on the recommendations of the 911 Commission. http://en.wikipedia.org/wiki/9/11_Commission  

Coincidently, Holder’s Justice Department has assigned the case to Justice Department attorney Tony West is a member of the so-called “Gitmo 9″ — a group of lawyers who have represented terror suspects. West, the assistant attorney general for the department’s Civil Division, once represented “American Taliban” John Walker Lindh.  http://www.foxnews.com/politics/2010/07/08/ex-terror-lawyer-lead-arizona-immigration-law/ 

2) Facilitate policies and regulations not approved by Congress by creating the legal fiction that the Executive Branch has the authority to selectively enforce the laws of the United states. Specifically, that the Administration can controvert the Immigration Laws passed by Congress and implement a “de facto” amnesty and “open borders policy” through a dereliction of its duties to enforce those laws specifically passed by Congress.

The Executive Branch’s continued lamentation that, “Comprehensive Immigration Reform” is needed is immaterial to the duty of the Executive Branch to faithfully enforce the provisions of the last “Comprehensive Immigration Reform” passed by Congress. Simply because the Administration dislikes the last “Comprehensive Reform’ does not excuse the Administration from enforcing it.

3). That the Administration continues in a well established set of actions to undermine the statutory and regulatory provisions passed by Congress and implemented by prior the Administration, actions that are directed toward securing American’s borders and identifying terrorists threats to this Country. That while the Administration’s current actions are consistent with the Administration’s belief that a “war on terror” never existed, those same actions are “unconstitutional” when they impede the enforcement of statutes passed by Congress and signed into law.

The United States Constitution does not empower the Executive Branch to act unilaterally to  impede or prevent the implementation of laws passed by Congress, because the current Administration refuses to acknowledge the existence of an international terrorist threat, that Islamic jihadist exist, that “terrorist acts” rather than  ”manmade disasters” happen and that the Executive Branch is required by the solemn oath taken by its members before they assumed their offices to “protect and defend the constitution of these United States”.

The DOJ Lawsuit

The suit filed by  Attorney General Eric Holder on Behalf of President Obama can be viewed here: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

The lawsuit states three specific, “causes of action”, which the Department of Justice claims are unconstitutional. Those ”causes of action” can be read on pages 23 & 24.

The “first cause of action” alleges a “violation” of the Supremacy Clause of the Constitution.

The “second cause of action” alleges a “violation” of the “Preemption clause” of the Constitution.

The “third cause of action” alleges a “violation” of the “Commerce clause” of the Constitution.

The Obama Administration and Attorney General Holder’s DOJ did not allege “racial discrimination” or “racial profiling” in this lawsuit.

The 25 page lawsuit fails to mention “racial profiling” or “discrimination” even once, giving light to the fact that the Obama Administration knew the claims of “profiling” and “discrimination” to be false from the very beginning – The Administration’s failure to even allege “discrimination” or to allege “racial profiling” in the suit, proves that those false claims were known to be false, in fact, the claims were nothing more than the Obama Administration’s “playing of the race card” in an attempt to exploit racial divisions in this Country for their political advantage.

The DOJ suit rests solely on a claim that the Arizona Law is pre-empted by Congress’ right to formulate immigration quotas and immigration criteria for foreign nationals to be admitted to the U.S..

The lawsuit fails to acknowledge or mention the numerous areas of “concurrent jurisdiction” over our immigration laws shared by the Federal and State Governments. The “suit” reads as if the “drafters” of the suit had never read the 1996 Comprehensive Immigration Reform Act.

See: https://mcauleysworld.wordpress.com/2010/07/06/the-immigration-debate-the-arizona-immigration-law-concurrent-federal-state-juridiction-operation-stone-garden-scaap/

The Supremacy Clause Article VI, Clause 2

A State law will be found to violate the supremacy clause when either of the following two conditions (or both) exist:

  • Compliance with both the Federal and State laws is impossible, or
  • “…state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress…”

 http://en.wikipedia.org/wiki/Supremacy_Clause

Supremacy Clause (Article VI, clause 2) – The Preemption doctrine

Express Preemption

Express preemption occurs only when a federal statute explicitly states Congress’s intention to preempt or replace state law.

Implied Preemption 

Implied preemption can occur in two ways: field preemption or conflict preemption.

1.       Conflict preemption: Conflict arises when it is impossible to comply with both the state and federal regulations … when one law contradicts the other …

2.      Field preemption: Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to warrant an inference that Congress did not intend the states to supplement it. 

The Concurrent Jurisdiction of Federal & State Governments Enforcement of U.S. Immigration Laws –  Pre: 09-11-2001

On April 03, 2002, the U.S. Department of Justice, Office of Legal Counsel (OCL) issued a memorandum concerning the Federal Preemption of concurrent State enforcement of criminal and civil violations under the Immigration Laws of the United States.

That memo, which can be viewed here:  http://www.aclu.org/files/FilesPDFs/ACF27DA.pdf  states, ““[A]rresting aliens who have violated criminal provisions of [the INA] or civil provisions that render an alien deportable . . . is within the inherent authority of the states.”. This declaration is in direct contrast to what has been alleged in the Obama Adminstration’s lawsuit filed by the Department of Justice headed  by Attorney General Eric Holder.

2002 DOJ Memo

States are Sovereign entities, just like the Federal Government. States are said to have their own “inherent powers”, “rights” and “obligations”.

“Arresting aliens who have violated either criminal provisions of the INA or civil provisions that render an alien deportable is within the inherent authority of the states. Additionally, such inherent arrest authority has never been preempted by Congress. This conclusion has been confirmed by every court to squarely address the issue. Indeed, it is difficult to make a persuasive case to the contrary. This inherent arrest authority has been possessed and exercised by state and local police since the earliest days of federal immigration law.” At page 183.  http://www.irli.org/ForceMultiplrKobach.pdf

The Inherent Arrest  Authority Possessed By The States

In assessing the authority of local police to make immigration arrests, the initial question is whether the states have inherent power to make arrests for violations of federal law. That is, may state and local police and law enforcement officials, exercising state legal authority only, make arrests for violations of federal law, or do they possess the power to make such arrests only if they are exercising delegated federal power? At page 200. http://www.irli.org/ForceMultiplrKobach.pdf

The Federal Courts have answered this question clearly: The States have an independent authority to arrest individuals for violating Federal law.

The source of this authority flows from the states’ status as sovereign governments possessing all residual powers not abridged or superseded by the U.S. Constitution. The source of the state governments’ power is entirely independent of the U.S. Constitution.

(See:  Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819) (finding “powers proceed, not from the people of America, but from the people of the several states; and remain, after the adoption of the constitution, what they were before”).

The source of this authority flows from the states’ status as sovereign governments possessing all residual powers not abridged or superseded by the U.S. Constitution. The source of the state governments’ power is entirely independent of the U.S. Constitution. Moreover, the enumerated powers doctrine that constrains the powers of the federal government does not so constrain the powers of the states. See:  Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819)

Rather, the states possess broad “police powers,” which need not be specifically enumerated. Police powers are “an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people.” Manigault v. Springs, 199 U.S. 473, 480 (1905).

Essentially, states may take any action to protect these interests (consistent with their own constitutions and laws) unless there exists a prohibition in the U.S. Constitution or such action has been preempted by federal law. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 282–83 (1997).

It is well established that the authority of state police to make arrests for violations of federal law is not limited to situations in which state officers are exercising power delegated by the federal government to the states. Rather, it is a general and inherent authority based on the fact that the states retain their sovereignty in the U.S. constitutional framework. The states’ arrest authority is derived from the basic power of one sovereign to assist another sovereign. This is the same inherent authority that is exercised whenever a state law enforcement officer witnesses a federal crime being committed and makes an arrest. That officer is not acting pursuant to delegated federal power. Rather, he is exercising the inherent power of his state to assist another sovereign.

There is abundant case law on this point. Even though Congress has never authorized state police officers to make arrest for federal offenses without an arrest warrant, such arrests occur routinely. Further, the Supreme Court has recognized that state law controls the validity of such an arrest. As the Court concluded in United States v. Di Re, 332 U.S. 581, 591 (1948).

No act of Congress lays down a general federal rule for arrest without warrant for federal offenses. None purports to supersede state law. And none applies to this arrest which, while for a federal offense, was made by a state officer accompanied by federal officers who had no power of arrest. Therefore the New York statute provides the standard by which this arrest must stand or fall. 332 U.S. 581, 591 (1948).

As the Seventh Circuit explained in United States v Janik, United States v. Janik, 723 F.2d 537, 548 (7th Cir. 1983) “[state] officers have implicit authority to make federal arrests.” Accordingly, they may initiate an arrest on the basis of probable cause to believe that an individual has committed a federal offense. United States v. Janik, 723 F.2d 537, 548 (7th Cir. 1983).

The Ninth and Tenth Circuits have reached the same conclusion in the immigration context specifically. In Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983), the Ninth Circuit opined with respect to immigration arrests that “[t]he general rule is that local police are not precluded from enforcing federal statutes.”

The Tenth Circuit has reviewed this question on several occasions, concluding squarely in 1984 that “[a] state trooper has general investigatory authority to inquire into possible immigration violations.” United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984).

As the Tenth Circuit characterized this arrest power in 1999, there is a “preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws.” United States v. Vasquez-Alvarez, 176 F.3d 1294, 1295 (10th Cir. 1999)

And again in 2001, the Tenth Circuit reiterated that “state and local police officers [have] implicit authority within their respective jurisdictions ‘to investigate and make arrests for violations of federal law, including immigration laws.” United States v. Santana-Garcia, 264 F.3d 1188, 1194 (10th Cir. 2001) (quoting Vasquez-Alvarez, 176 F.3d at 1295).

None of these Tenth Circuit holdings drew any distinction between criminal violations of the INA and civil provisions that render an alien deportable. Indeed, in all of the cases, the officers involved inquired generally into possible immigration violations, often arresting without certainty as to whether the aliens’ immigration violations were of a civil or criminal nature. Rather, the court described an inherent arrest authority that extends generally to all immigration violations.

A. The Framework of Preemption Analysis: Having established that this inherent state arrest authority exists, the second question is whether such authority has been preempted by Congress. In conducting a preemption analysis, courts must look for

(1) Express preemption by congressional statement,

(2) Field preemption where the federal regulatory scheme is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” or

(3) Conflict preemption, where compliance with both state and federal law is impossible or state law prevents the accomplishment of congressional objectives. Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (plurality opinion)(quoting Fidelity Fed. Sav. & Loan Ass’n v. De la Cuesta, 458 U.S. 141, 153 (1982)).

In all three categories, manifest congressional intent must be demonstrated for preemption to exist. Every preemption inquiry must “start with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (alteration in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

The Supreme Court has consistently reiterated that “‘[t]he purpose of Congress is the ultimate touchstone’” of preemption analysis. (Congress, not the Executive Branch). Malone v. White Motor Corp., 435 U.S. 497, 504 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963))

Moreover, in the context of state arrests for violations of federal law, there is a particularly strong presumption against preemption. Normal preemption cases involve: (1) state legislation (2) that is at odds with federal purposes or statutes.

 However, state arrests for violations of federal law involve: (1) state executive action (2) that is intended to assist the federal government in the enforcement of federal law. The starting presumption must be that the federal government did not intend to deny itself any assistance that the states might offer.

This presumption was articulated in 1928 by Second Circuit Judge Learned Hand, who stated that “it would be unreasonable to suppose that [the federal government’s] purpose was to deny itself any help that the states may allow.”  Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928).

B. Congressional Actions Evincing an Intent to Preserve Inherent State Arrest Authority

Congress has repeatedly legislated in ways that indicate a recognition of the states’ inherent arrest authority and an intent not to preempt that authority. Five examples of congressional action in this regard are particularly salient:

First, in 1996 Congress expressly put to rest any suspicion that it did not welcome state assistance in making immigration arrests. Congress added section 287(g) to the INA,143 described above in Part II.G, providing for the establishment of written agreements with state law enforcement agencies to convey federal immigration enforcement functions to such agencies. In doing so, Congress reiterated its understanding that states and localities may make immigration arrests regardless of whether a 287(g) agreement exists. Congress stated that a formal agreement is not necessary for any officer or employee of a State or political subdivision of a State . . . to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or . . . otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. 8 U.S.C. § 1357(g)(10) (2000).

http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm

Second, in 1996 Congress anticipated that state and local law enforcement agencies would be apprehending and, at the request of federal immigration authorities, detaining illegal aliens.

http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm

Accordingly, in 8 U.S.C. § 1103(a)(9), Congress authorized the Attorney General to make payments to states for the detention of illegal aliens in non-federal facilities.145 And in 8 U.S.C. § 1103(c), Congress authorized the Commissioner of the INS to enter into any “cooperative agreements with State and local law enforcement agencies for the purpose of assisting in the enforcement of the immigration laws.” Id. § 1103(c).

Third, in 1994 Congress began appropriating funds for the creation of the Law Enforcement Support Center (LESC) in Williston, Vermont, which serves as an INS point of contact with local police officers who apprehend illegal aliens. (See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations for 1997: Hearings Before a Subcomm. of the H. Comm. on Appropriations, 104th Cong. 1140 (1996) (testimony of Doris Meissner, INS Comm’r: The LESC was created in order to help local and state law enforcement agencies in ascertaining the immigration status of possible felons. In its first year, it received nearly 15,000 inquiries from its pilot state.).

The purpose of the LESC is expressly that of communicating with local law enforcement officers who make immigration arrests: The primary mission of the LESC is to support other law enforcement agencies by helping them determine if a person they have contact with, or have in custody, is an illegal, criminal, or fugitive alien. The LESC provides a 24/7 link between Federal, state, and local officers and the databases maintained by the INS. (Law Enforcement: Are Federal, State, and Local Agencies Working Together Effectively?: Joint Hearing Before the Subcomms. on Criminal Justice, Drug Policy and Human Resources; Government Efficiency, Financial Management and Intergovernmental Relations; and National Security, Veterans Affairs and International Relations of the H. Comm. On Government Reform, 107th Cong. 97 (2001).

The existence of the LESC is predicated on the assumption that state and local police will be making immigration arrests: When a law-enforcement officer arrests an alien, LESC personnel are able to provide him or her with vital information and guidance, and if necessary, place the officer in contact with an ICE immigration officer in the field. The partnerships fostered by the LESC increase public safety.

Every day, they result in the apprehension of individuals who are unlawfully present in the United States, many of who have committed a crime and pose a threat to the local community or our Nation. (Department of Homeland Security Transition: Bureau of Immigration and Customs Enforcement: Hearing Before the Subcomm. on Immigration, Border Sec., and Claims of the H. Comm. on the Judiciary, 108th Cong. 12 (2003).

In Fiscal Year 2005, the LESC responded to a staggering 504,678 calls from state and local law enforcement officers. Put differently, that is an average of 1,383 calls per day.

Fiscal Year 2002, the LESC received 426,895 law-enforcement inquiries. These included 309,489 from state and local law enforcement, 24,646 inquiries regarding foreign nationals seeking to purchase firearms, and 24,646 investigative inquiries.”. (Department of Homeland Security Transition: Bureau of Immigration and Customs Enforcement: Hearing Before the Subcomm. on Immigration, Border Sec., and Claims of the H. Comm. on the Judiciary, 108th Cong. 12 (2003). At page 12.

Fifth, in 1996 Congress took steps to discourage those state and local law enforcement agencies that might seek to withhold their cooperation in making immigration arrests. In 1979, the City of Los Angeles had become the first major American city to adopt a so called “sanctuary policy.” Special Order 40 passed by the Los Angeles City Council barred Los Angeles police officers from asking individuals about their immigration status and from conveying such information to the federal government. (Office of the Chief of Police of the L.A. Police Dep’t, Special Order No. 40 (Nov. 27, 1979), available at http://keepstuff.homestead.com/Spec40orig.html.  The specific text of

Special Order 40 states: “[U]ndocumented alien status in itself is not a matter for police action. It is, therefore, incumbent upon all employees of this Department to make a personal commitment to equal enforcement of the law and service to the public, regardless of alien status.” Id. Special Order 40 further provides that LAPD officers may not “initiate police action with the objective of discovering the alien status of a person,” nor may they “arrest [or] book a person for [illegal entry into the United States].” Id.; see also Patrick McGreevy, LAPD Passes on Immigration; Commission Spurns Request for Increased Involvement in Handling Illegals, DAILY NEWS OF L.A., June 25, 1997 (highlighting the LAPD’s limited involvement in enforcing immigration laws).

In 1989, New York City enacted a similar policy by mayoral decree.162 Congress, concerned that such policies might proliferate, enacted two separate provisions designed to smooth the way for closer cooperation with state and local law enforcement, while preventing future sanctuary policies.163 Under 8 U.S.C. § 1373, enacted in part under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,164 and 8 U.S.C. § 1644, part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,165 Congress expressly barred federal, state, and local entities from preventing their officials from exchanging information with federal immigration authorities regarding the immigration status or citizenship of any individual. In the Senate report accompanying this legislation, the intent to maximize cooperation between federal immigration authorities and state or local governments was clear: Effective immigration law enforcement requires a cooperative effort between all levels of government. The acquisition, maintenance, and exchange of immigration related information by State and local agencies is consistent with, and potentially of considerable assistance to, the Federal regulation of immigration and the achieving of the purposes and objectives of the Immigration and Nationality Act. (S. REP. NO. 104-249, at 19–20 (1996).

None of these actions suggested any distinction between civil and criminal violations of immigration law. Consequently, it is hardly surprising that no appellate court has expressly ruled that states are preempted from arresting aliens for civil violations of the INA. The only case that even comes close is the 1983 opinion of the Ninth Circuit in Gonzales v. City of Peoria. (722 F.2d 468 (9th Cir. 1983).

In Gonzales, the Ninth Circuit held that local police officers have the authority to arrest an alien for a violation of the criminal provisions of the INA if such an arrest is authorized under state law. (Id. at 476.) The Arizona Law is simply an act to authorize just such an arrest.

Individuals of Mexican descent challenged a policy of the City of Peoria, Arizona that instructed the city’s police officers to arrest and detain aliens suspected of illegally entering the United States in violation of 8 U.S.C. § 1325—a criminal provision of federal immigration law. Id. at 474.

The court began with the “general rule . . . that local police are not precluded from enforcing federal statutes.” The court also observed that, “[w]here state enforcement activities do not impair federal regulatory interests (Id. at 475.) concurrent enforcement activity is authorized.” After conducting a preemption analysis to determine whether Congress had displaced this enforcement authority, the court concluded that no such preemption had occurred.

In upholding the city’s power to arrest aliens who violate criminal provisions of federal immigration law, the court stated, “There is nothing inherent in that specific enforcement activity that conflicts with federal regulatory interests.” In passing, the court “assume[d] that the civil provisions of the [INA] regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration.”

In other words, the civil provisions might implicitly preempt state arrest authority, under a field preemption theory. However, this possibility of field preemption with respect to civil provisions of the INA was merely an assumption, suggested without any analysis, and made in dicta—entirely outside of the specific holding of the case, which concerned a criminal arrest. It does not constitute binding precedent.

Furthermore, even if the Ninth Circuit had squarely reached this conclusion in 1983, such a holding would have been undermined by the court’s failure to apply the strong presumption against preemption discussed above. More importantly, the subsequent actions of Congress made such a holding unsustainable.

The Tenth and Fifth Circuits have issued several opinions on the subject, all pointing to the conclusion that Congress has never sought to preempt the states’ inherent authority to make immigration arrests for both criminal and civil violations of the federal immigration law. The Tenth Circuit’s 1984 holding in the case of United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984) was the first to confirm the inherent arrest authority possessed by the states.

The defendant in Salinas-Calderon was the driver of a pickup truck who was stopped by a highway patrol officer in western Kansas for driving erratically. The officer suspected that Salinas was driving under the influence of alcohol. Salinas and his wife were in the cab; six passengers, none of whom spoke English, were in the bed of the pickup under an aluminum camper shell. Salinas did not possess a driver’s license and did not speak English. In talking with Salinas’ wife, the officer learned that Salinas was from Mexico and that they were traveling from Florida to Colorado. The officer asked her if Salinas possessed a “green card”; he did not. The officer then investigated the circumstances of the six passengers in the bed of the truck. All were from Mexico. None possessed any identification or documentation of their immigration status. The officer testified at trial that he suspected that the occupants of the vehicle were in violation of U.S. immigration law, but that he was unsure what the precise violation was. In his words, “I didn’t know exactly what I had.”The officer then contacted the INS and transferred the occupants of the vehicle to INS custody. Salinas was later charged with transporting illegal aliens within the United States. The defendant claimed that the state trooper did not have the authority to detain the transported passengers while he questioned them about their immigration status.

In rejecting this claim, the Tenth Circuit held that a “state trooper has general investigatory authority to inquire into possible immigration violations.” The court did not differentiate between criminal and civil violations. Plainly, because the officer was unsure what immigration law the aliens in the vehicle had violated, he did not know whether they had violated criminal or civil provisions of the INA. (The court also rejected the defendant’s contention that, because the officer lacked particular knowledge of immigration laws, “his call to the [INS] was tantamount to a fishing expedition.” Id. at 1301, The court held that the officer’s “lack of knowledge of the immigration laws does not preclude a finding of probable cause,” because “lack of experience does not prevent a police officer from ‘sensing the obvious.’” Id. (quoting United States v. Strahan, 674 F.2d 96, 100 (1st Cir. 1982))

Indeed, because there is no indication in the opinion that there was any reason to believe the alien passengers had committed any criminal violations, the court’s affirmation of general investigatory authority applies fully to civil as well as criminal violations. Salinas-Calderon, 728 F.2d at 1301.

United States v. Vasquez-Alvarez (10th Circuit) 176 F.3d 1294 (10th Cir. 1999).  The Tenth Circuit’s most salient case on the preemption question is United States v. Vasquez-Alvarez, decided in 1999. In that case, an Edmond, Oklahoma, police officer arrested the defendant alien solely because he was an illegal alien. The day before the arrest, an INS agent eating dinner at a restaurant in the same city observed what appeared to be a drug transaction between the defendant and another individual near their vehicles in the restaurant parking lot. The next morning, the INS agent telephoned the police officer, described the vehicles involved, and asked him to investigate the situation. The INS agent also expressed suspicion that the defendant was in the country illegally. That night, the police officer went to the restaurant and saw the vehicles that had been described by the INS officer. He learned from the restaurant manager that the defendant owned one of the vehicles and was an employee of the restaurant. The officer questioned the defendant, who admitted that he was an illegal alien. The officer then arrested the defendant and transported him to the city jail, to be held there until the INS took him into custody.

The officer did not know at the time whether the defendant alien had committed a civil or criminal violation of the INA. It was later discovered that the defendant had illegally reentered the country after three prior deportations,206 in violation of 8 U.S.C. § 1326—a criminal violation. After his indictment, the defendant moved to suppress his post-arrest statements, fingerprints, and identification.He maintained that a local police officer is without authority to arrest an illegal alien unless the arrest meets the conditions listed in 8 U.S.C. § 1252c, and that because his arrest did not meet those conditions, the officer had arrested him without legal authority.208 Section 1252c authorizes state and local police to make a warrantless arrest and to detain an illegal alien if (1) the arrest is permitted by state and local law, (2) the alien is illegally present in the United States, (3) the alien was previously convicted of a felony in the United States and subsequently was deported or left the country, and (4) prior to the arrest the police officer obtains “appropriate confirmation” of the alien’s “status” from federal immigration authorities. According to the defendant’s theory, § 1252c displaced the authority of state police to make any immigration arrest that did not meet those four conditions.

The Tenth Circuit’s conclusion was unequivocal: § 1252c “does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws. Instead, § 1252c merely creates an additional vehicle for the enforcement of federal immigration law.” The court rejected the alien’s contention that all arrests by local police not authorized by § 1252c are prohibited by it. The court reviewed the legislative history of § 1252c and analyzed the comments of Representative John T. Doolittle, who sponsored the floor amendment containing the text that would become § 1252c.212

The court concluded that the purpose of the amendment was to overcome a perceived federal limitation on the states’ arrest authority. However, neither Doolittle, nor the government, nor the defendant, nor the court itself had been able to identify any such limitation.  The interpretation of § 1252c urged by the defendant would have grossly distorted the manifest intent of Congress, which was to encourage more, not less, state involvement in the enforcement of federal immigration law. Reading into the statute an implicit congressional intent to preempt existing state arrest authority would have been utterly at odds with this purpose. Moreover, such an interpretation would have been inconsistent with subsequent congressional actions. As the Tenth Circuit noted, “in the months following the enactment of § 1252c, Congress passed a series of provisions designed to encourage cooperation between the federal Put succinctly, the “legislative history does not contain the slightest indication that Congress intended to displace any preexisting enforcement powers already in the hands of state and local officers.” This holding is the most comprehensive analysis of the preemption question that any federal court has performed to date. The Supreme Court denied certiorari in Vasquez-Alvarez on October 4, 1999. United States v. Vasquez-Alvarez (10th Circuit) 176 F.3d 1294 (10th Cir. 1999). United States v. Santana-Garcia (10th Circuit)  Vasquez-Alvarez v. United States, 528 U.S. 913 (1999).

In United States v. Santana-Garcia, shortly after its decision in Vasquez-Alvarez, the Tenth Circuit again confirmed the authority of local law enforcement to arrest individuals for immigration violations. Santana-Garcia presented the same question of local immigration arrest authority in a slightly different context. The aliens were not ultimately transferred to the INS; rather, the immigration violation justified continued detention during a traffic stop, which eventually led to the discovery of drugs in the aliens’ possession. The incident began when a Utah state trooper pulled a car over for running a stop sign.220 The driver was not in possession of a driver’s license and did not speak English. The passenger spoke only limited English. At that point, the trooper returned to his patrol car to request the assistance of a Spanish speaking trooper. While waiting for the Spanish-speaking trooper, the original trooper returned to the detained vehicle to ask the occupants about the ownership of the vehicle and their travel plans. They indicated that they were traveling to Colorado from Mexico. The trooper proceeded to ask whether they were “legal.” Both answered in the negative. After the second trooper arrived, the troopers questioned the occupants further and obtained their consent to search the vehicle. The troopers discovered drugs in the vehicle, behind the glove compartment and the dashboard radio.

At the suppression hearing, the first trooper testified as to the factors that led him to continue to detain the occupants of the vehicle beyond the initial reason for the stop.230 He did not mention their illegal presence in the United States. The district court suppressed the physical evidence of the drugs, concluding that the trooper could not have formed the requisite reasonable suspicion of criminal activity to justify the continued detention. The Tenth Circuit considered the question of whether the continued detention of the defendants on the basis of the immigration violation was permissible, regardless of whether the trooper articulated that basis for the detention.

 The Tenth Circuit concluded that the officer “had probable cause to arrest Defendants for violations of state traffic and federal immigration law,” and that the continued detention was lawful.

The court reiterated its prior conclusion that “state and local police officers had implicit authority within their respective jurisdictions ‘to investigate and make arrests for violations of federal law, including immigration laws.’”  (Id. at 1194 (quoting United States v. Vasquez-Alvarez, 176 F.3d 1294, 1295 (10th Cir. 1999)).

Once again, the Tenth Circuit observed that Congress has never preempted this authority: “[F]ederal law as currently written does nothing ‘to displace . . . state or local authority to arrest individuals violating federal immigration laws.’” Indeed the court reiterated that the opposite was true: “[F]ederal law ‘evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws.’” Once again, the Court did not draw any distinction between criminal and civil provisions of federal immigration laws.

Similar facts led the Tenth Circuit to the same conclusion in another 2001 case,  United States v. Hernandez-Dominguez. 41 F. App’x 185 (10th Cir. 2002)., Favela-Favela, 41 F. App’x at 191.

In 2002, the Tenth Circuit continued its unbroken line of case law affirming the power of state and local police to arrest individuals for violations of federal immigration laws in United States v. Favela-Favela. In that case, a Clinton, Oklahoma police officer observed a van with two people in the front seats and a female passenger apparently kneeling between the two front seats. The officer concluded that she was not wearing a seatbelt, based on her position in the vehicle. This constituted a violation of Oklahoma law. The officer stopped the van and when he stood near the driver’s door, he noticed that there were approximately twenty people inside the vehicle, well beyond the safe capacity of the van. He noted that the passengers avoided looking at him, which he regarded as unusual and suspicious behavior.

The Tenth Circuit concluded that the officer had formulated an objectively reasonable suspicion of illegal activity and that his question about the passengers’ immigration status was justified. More importantly, the court reaffirmed the general investigatory authority of the officer to inquire about possible immigration violations and to arrest and detain individuals on that basis. The officer did not know whether the aliens in the vehicle had committed civil or criminal violations of the INA; he merely suspected, and was later told, that they were not “legal.” Lynch v. Cannatella (5th Circuit) 810 F.2d 1363, 1367 (5th Cir. 1987). 

The Tenth Circuit is without question the court that has most thoroughly explored the issue of inherent immigration arrest authority and whether such authority has been preempted. However, it is not alone in concluding that state and local law enforcement possess this authority. The Fifth Circuit has also recognized the inherent immigration arrest authority possessed by the states and has squarely rejected the suggestion that Congress has preempted such authority.

In Lynch v. Cannatella,  810 F.2d 1363, 1367 (5th Cir. 1987). , the Fifth Circuit considered a case involving sixteen Jamaican stowaways aboard a barge headed for ports on the Mississippi River. After they were discovered by the crew of the barge, the stowaways were detained for several days by the Port of New Orleans Harbor Police. Among other issues, the Fifth Circuit considered whether 8 U.S.C. § 1223(a) defined the sole process for detaining alien stowaways, thereby preempting the harbor police from detaining the illegal aliens. The Fifth Circuit’s conclusion was broad and unequivocal: “No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation’s immigration laws.” Like the Tenth Circuit, the Fifth Circuit did not limit this authority to criminal provisions of federal immigration law. United States v. Rodriguez-Arreola (8th Circuit)  270 F.3d 611, 613 (8th Cir. 2001).

In addition to the Ninth, Tenth, and Fifth Circuits, one other circuit has weighed in on the matter, albeit indirectly. The Eighth Circuit has offered implicit support for the existence of local arrest and detention authority for violations of immigration law.

In United States v. Rodriguez-Arreola, (8th Circuit)  270 F.3d 611, 613 (8th Cir. 2001)the Eighth Circuit considered a case in which a South Dakota state trooper stopped a vehicle for speeding. The trooper asked the driver a variety of general questions, including whether he was a U.S. citizen or a resident alien. The driver stated that he was legally in the United States, but that he had left his green card at home. The trooper asked the passenger, Rodriguez, whether he was a legal resident.  Rodriguez answered, “No.” The trooper then asked Rodriguez whether he had a green card, and Rodriguez answered, “No.” Then the trooper asked Rodriguez whether he was “here legally,” and Rodriquez again answered negatively. The trooper then detained the two individuals while he contacted the INS on his radio. The INS agent confirmed that the driver was a legal alien, but Rodriguez was in the country illegally. The trooper then gave the speeding ticket to the driver and allowed him to go. The trooper placed Rodriguez into custody and took him to a local jail facility to await INS processing.

Importantly, as the court noted, the trooper and the INS viewed this detention of the alien “as part of an administrative procedure,  ”rather than as part of a criminal procedure. Accordingly, neither the trooper nor the INS informed Rodriguez of his Miranda rights during the traffic stop.

Rodriguez received notification of his Miranda rights later, when the INS elected to pursue criminal charges under 8 U.S.C. § 1326(a).274 The court held that the trooper “had reasonable suspicion to inquire into Rodriguez’s alienage” and that the district court erred in suppressing the evidence obtained during the traffic stop.

 Thus, the Eighth Circuit implicitly recognized the authority of the state trooper to make an administrative immigration arrest (with the expectation that only civil removal, not criminal prosecution, would follow). If such authority did not exist, the arrest would not have been legal.

The Untenable Distinction Between Civil and Criminal Violations of the INA

No circuit court has ever directly held that the federal government has preempted the states from making arrests for civil violations of immigration law that render an alien removable. Such a claim of field preemption would have to establish that the civil provisions of federal immigration law create a pervasive regulatory scheme indicating congressional intent to preempt, while the criminal provisions do not. This claim is extremely difficult to make in the wake of Congressional legislation expressly recognizing local arrest authority and inviting local assistance in the enforcement of immigration law—particularly the legislation passed in 1996.

CRIMINAL & CIVIL INFRACTIONS FOR SAME OFFENSE

The overlap between civil and criminal provisions of immigration law is also demonstrated by the many actions in the immigration arena that trigger both civil and criminal penalties. For example, the creation of fraudulent or counterfeit immigration documents is a civil violation of immigration law under 8 U.S.C. § 1324c(d)(3),291 but it is also a criminal violation under 18 U.S.C. § 1546(a).292

The same may be said of employing illegal aliens. This action carries civil penalties administered through the civil proceedings described in 8 U.S.C. § 1324a(e). However, the employment of illegal aliens is also a crime, as described in 8 U.S.C. § 1324a(f), if the employer engages in a pattern or practice of such hiring. The same act may also be a crime under 8 U.S.C. § 1324(a)(3) if the employer hires ten or more illegal aliens meeting certain requirements.293 Some provisions of immigration law include civil and criminal penalties in the same sentence. For example, making false statements in a registration document (such as that required by the NSEERS program)is a criminal misdemeanor, punishable by a fine of up to $1000 and a prison term of up to six months. The sentence defining this criminal penalty continues with civil consequences in administrative proceedings: “. . . and any alien so convicted shall, upon the warrant of the Attorney General, be taken into custody and be removed.”

The implication of the Ninth Circuit’s assumption, that the first half of the sentence, delineating criminal penalties, invites state assistance, while the second half of the sentence, delineating civil consequences, evinces preemptive intent, is plainly absurd. The notion that Congress created one simple set of provisions, demonstrating an intent not to preempt, is plainly absurd. The notion that Congress created one simple set of provisions, demonstrating an intent not to preempt, while also creating a parallel but distinct set of complex regulatory provisions, evincing an intent to preempt, simply is not reflected in the structure of immigration law. When the same act carries both civil penalties and criminal penalties under immigration law, it is almost always a single agency that decides which enforcement route to take. ICE agents and attorneys assume the lead role in determining which course to follow. It is not as if two parallel enforcement structures operate alongside one another, with ICE pursuing civil penalties while the Department of Justice pursues criminal penalties. This unified enforcement approach at the federal level further illustrates the fallacy in assuming that civil provisions preempt while criminal provisions do not. Finally, on the subject of preemption, it must be noted that the distinction between arrests by state police for criminal violations of the INA and arrests by state police for civil violations of the INA is utterly unsustainable in practice. Often, it is not intuitively determinable which immigration violations are criminal and which violations are civil.

THE AUTHORITY OF POLICE TO INQUIRE INTO IMMIGRATION STATUS

In March 2005, the Supreme Court provided an unequivocal answer to this question. In the case of Muehler v. Mena, 332 F.3d 1255, (9th Cir. 2003). 125 S. Ct. 1465 (2005)., the Court considered a case in which police officers conducted a search of a suspected gang safe house for evidence of gang-related crimes. During the course of the search, police officers asked the four occupants of the house their names, dates of birth, places of birth, and immigration statuses. The Ninth Circuit held that this questioning about immigration status violated the respondent’s Fourth Amendment rights. The Supreme Court emphatically disagreed: The Court of Appeals also determined that the officers violated Mena’s Fourth Amendment rights by questioning her about her immigration status during the detention. This holding, it appears, was premised on the assumption that the officers were required to have independent reasonable suspicion in order to question Mena concerning her immigration status because the questioning constituted a discrete Fourth Amendment event. But the premise is faulty. We have “held repeatedly that mere police questioning does not constitute a seizure.” “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.” As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.

In light of the Supreme Court’s opinion in Muehler v. Mena, it is clear that a police officer is entirely within his rights, in the course of a routine traffic stop, to ask the occupant of a vehicle his/her immigration status and for their identification.

In the case Graham v. Richardson – the Court found that, because the state law at issue was “consistent with federal policy”  and as the Ninth Circuit has observed, “Although the regulation of immigration is unquestionably an exclusive federal power, it is clear that this power does not preempt every state activity affecting aliens. . . . Federal and local enforcement have identical purposes—the prevention of the misdemeanor or felony of illegal entry.”

The Tenth and Fifth Circuits have squarely concluded that no preemption has taken place with respect to arrests for either criminal or civil violations of immigration law. The Eighth Circuit has implicitly reached the same conclusion. And the Ninth Circuit has only suggested a distinction between civil and criminal violations by assuming one in dicta in the case of Gonzales v. Peoria. Moreover, as the Ninth Circuit itself acknowledged, any judicial finding of preemption hinges upon the clear demonstration of congressional “intent to preclude local enforcement.” In the twenty-three years since Gonzales v. Peoria, Congress has done much to dispel any illusion that it intended to displace local assistance. Congress has repeatedly acted to preserve, support, and encourage local arrest authority.

This authority is being exercised regularly throughout the country. The reality on the street is that local police make thousands of immigration arrests for both civil and criminal violations of federal immigration laws every year. Beleaguered ICE agents already rely heavily on this assistance, and improvements in immigration enforcement are likely to depend on even greater state and local participation in federal immigration enforcement efforts. If the rule of law is ever to be restored in immigration, state and local arrest authority will be a crucial component of that restoration. It is important to note that in the years after 9/11, despite determined federal efforts to expand the number of ICE interior enforcement agents, the total number of such agents remained relatively constant, hovering just below the 5,000 mark. The more than 800,000 state and local law enforcement officers in the United States constitute a vital force multiplier.

Most importantly, state and local police officers represent a critical line of defense in the war against terrorism. In the six months before 9/11, there were four tragic missed opportunities to arrest the leaders and pilots of the 9/11 terrorists.356 Had the federal government acquired and disseminated information about basic civil immigration violations to local law enforcement through the NCIC system, several terrorists might have been arrested, and the 9/11 plot might have unraveled.

Concurrent Federal & State Enforcement of U.S. Immigration Law:

Post 09/11/2001

On April 23, 2002, the U.S. Department of Justice, Office of Legal Counsel (OCL) issued a memorandum concerning the issue of Federal Preemption of concurrent State enforcement of criminal and civil viloations under the Immigration Laws of the United States.

That memo, which can be viewed here:  http://www.aclu.org/files/FilesPDFs/ACF27DA.pdf , reversed prior opinions held by the Department of Justice and specifically states: We conclude that part 1252 (C), does not preempt State arrest authority in any respect. (at page 3 & 4).

The DOJ assumed that the arrests made by State and Local law enforcement officials complied with the provisions of the 14th Amendment of the Constitution.

The DOJ memo notes that the “arrest power” lies with the States as “sovereign entities”. (page 2 of memo, page 4 of fax, Section I)

That the “power of arrest” is not limited to “authorization delegated from the Federal Government”.

The OLC noted that section 1252 c, was enacted just two months after the preparation of a 1996 OLC memo a memo that was countermanded by the memo of April 23, 2002, the OLC stated, “we determine that our 1996 advice was mistaken and that we should have concluded that federal statutory law posed no obstacle to the authority of state (and local) police to arrest aliens on the basis of civil deportability. (Section II of the memo, page 7 of the fax).

The memo offered the following conclusions:

1). States have inherent power to make arrests for violation of Federal Law including Civil and Criminal violations of Federal Immigration Laws.

2). It would be unreasonable to assume Congress acted in a manner that would deprive the Federal Government of whatever assistance the States could provide in the identification, apprehension and detention of those in violation of Federal Immigration Laws.

3). That prior opinions of the DOJ were erroneous, that Federal Law did not preempt the States from making arrests for both civil and criminal violations of Federal Immigration law.  

Conclusion:

The Obama Administration is attempting to reverse the opinion provided by the DOJ on April 23, 2002, by having the current DOJ file suit against the state of Arizona.

Had Congress wished to reverse the opinion of the DOJ issued on April 23, 2002, the Congress has had 8 years to do so, Congress has not so acted. The power to initiate changes in this Country’s immigration law rest with Congress and not with the Executive Branch.

The DOJ’s current suit is another example in a long line of examples where this Executive Branch is attempting to reverse established law, without following our Constitutionally prescribed procedures for doing so.  

In closing this writer would like to note that “preemption” is a bit like “virginity”. The DOJ’s memo of April 3, 2002, invited the States to a full participation in enforcing this Country’s immigration laws. The April 3, 2003 memo “waives” any claim of “preemption” by the DOJ. Once the offer was made by the DOJ “claims” of preemption were voided absent a specific act of Congress to reinstate a claim of “preemption”. Preemption, like virginity, can’t be reclaimed after it has been offered up and accepted …

TO BE CONTINUED …..

a discussion of the specific programs implemented after 911 (and suggested by the 911 Commission) that will be placed in jeopardy if the DOJ wins the suit against Arizona.

1) Use of the NCIC system for the identificaton of illeagl aliens and security threats by state & local police. 

There are now more than 450,000 absconders at large in the United States. These aliens have had their days in immigration court and have disobeyed their final orders of removal. The absconder problem has made a mockery of the rule of law in immigration. Thousands of absconders have engaged in serious criminal activity in addition to their immigration violations. Many absconders have committed criminal violations of the INA. 

However, others have committed civil violations where the underlying immigration violation was of a civil provision and the refusal to obey the order of removal was not willful.  On December 5, 2001, the Department of Justice launched the Absconder Initiative, which has been continued under the Department of Homeland Security. This initiative marked the beginning of the process of listing absconders’ names and information in the NCIC system. The presence of these names in the NCIC system gives local police the information necessary to make immigration arrests during the course of routine traffic stops. The existence of the Absconder Initiative is based on the premise that local police have the authority to make immigration arrests—for both civil and criminal violations of the Immigration and Nationality Act.

2). Beginning in December 2001, absconders from nations associated with Al Qaeda and absconders with criminal records were considered “priority absconders” and were listed in the NCIC system first. Between December 2001 and November 30, 2005, 47,433 absconders had been listed. Thousands of these fugitives have been arrested with the cooperation of state and local law enforcement officers.

3). Between November 2003 and November 2005, 3,944 absconders were apprehended by state and local law enforcement officers utilizing the NCIC.82 These arrests have resulted in the removal of many violent criminals from America’s streets. Many of the absconders are murderers. One of the most notorious absconders, whose immigration violations were part of a long and violent criminal record, was Maximiliano Silerio Esparza, arrested by local police in Oregon in the Summer of 2002 for rape and murder. Several absconders have become cop killers. For example, in March 2002, absconder Luis Alberto Gomez Gonzalez killed an off-duty police officer in the Bronx. Fifteen months later, in June 2003, absconder Adrian Camacho killed police officer Tony Zeppetella in Oceanside, California. If the Absconder Initiative had occurred years earlier, their victims might be alive today.

4). In 2003, the Office of the Inspector General at the U.S. Department of Justice reported that 87 percent of those aliens who were not detained during their removal proceedings ignored their final orders of removal and absconded. The Absconder Initiative has demonstrated promising results in tracking down the hundreds of thousands of fugitives who make a mockery of the immigration court system. For the first time, the United States is apprehending absconding aliens in significant numbers. This progress would be impossible without the assistance of state and local police in making immigration arrests.

5).  On March 14, 2005, ICE announced 103 coordinated immigration arrests that had occurred during the preceding weeks in what was termed “Operation Community Shield.”88 The arrested aliens were members of the Mara Salvatrucha 13 (MS-13) gang, a particularly violent criminal organization involved in drug trafficking, arms smuggling, human smuggling, and inter-gang violence. The MS- 13 gang originated in Los Angeles, with a large proportion of its members being natives of El Salvador who entered the United States in the 1980s. The gang now has more than 10,000 members in the United States and operates in at least 33 states. The majority of MS-13 members are illegal aliens. All of the Operation Community Shield arrests were for immigration violations, many of which were civil violations of the INA. Nevertheless, approximately half of the arrested gang members had prior arrests or convictions for violent crimes, including murder, weapons charges, and aggravated arson.

6).  Operation Community Shield continued after these initial 103 arrests. In May 2005, it expanded to encompass other violent gangs with a high proportion of illegal alien membership, including the 18th Street Gang, Surenos 13, Pelones 13, the Latin Kings, and others. Operation Community Shield also expanded to other cities, including those far from any national border, such as Omaha, Nebraska. By the end of October 2005, Operation Community Shield had resulted in the arrest of more than 1,600 gang members and associates. These arrests were the result of coordinated efforts between ICE and local law enforcement. Local police officers and departments reported the names of suspected gang members to ICE, which then ran the lists of gang members against federal immigration databases to determine the immigration statuses of the individuals in question. The arrestees were all present in the United States illegally. All were arrested for immigration offenses, rather than for criminal gang activity. Some had committed criminal violations of the INA, while others had committed civil violations. ICE took the lead in making the arrests, but state and local law enforcement cooperated and participated in the operation. What is painfully clear from Operation Community Shield is that the federal government needed the help of local law enforcement to obtain the names of gang members, and the local police departments needed the help of ICE to verify the illegal alien status of the gang members. The immigration violations served as a valuable tool to remove violent criminals from the streets.

7). On June 6, 2002, Attorney General John Ashcroft announced the National Security Entry-Exit Registration System (NSEERS), a program that would require high-risk alien visitors to provide fingerprints and extensive biographical information. It would also require such aliens to re-register with U.S. immigration officials periodically and would, for the first time, impose real-time departure controls on such high-risk visitors. Violators of the NSEERS requirements would be listed in the National Crime Information Center (NCIC) database, accessible in the squad cars of most local police departments, allowing local law enforcement officers to make arrests of such high-risk immigration law violators.

The FBI’s National Crime Information Center (NCIC) maintains a computerized database of arrest and identification records developed by local and state police agencies. This database is available nationwide for use by federal, state, and local police officials. THE FBI: A COMPREHENSIVE REFERENCE GUIDE 160, 199, 221 (Athan G. Theoharis et al. eds.,)

The net that is cast daily by local law enforcement during routine encounters with members of the public is so immense that it is inevitable illegal aliens will be identified. When a local police officer establishes probable cause to believe that an alien is in violation of U.S. immigration law, he may contact the ICE Law Enforcement Support Center in Williston, Vermont, to confirm that ICE wishes to take custody of the alien.10 The Department of Justice Office of Legal Counsel (OLC) provides oral advice and written opinions in response to various executive branch requests. When Attorney General Ashcroft announced the NSEERS system, he also announced the unequivocal conclusion of the OLC: “[A]rresting aliens who have violated criminal provisions of [the INA] or civil provisions that render an alien deportable . . . is within the inherent authority of the states.” 

The net that is cast daily by local law enforcement during routine encounters with members of the public is so immense that it is inevitable illegal aliens will be identified. When a local police officer establishes probable cause to believe that an alien is in violation of U.S. immigration law, he may contact the ICE Law Enforcement Support Center in Williston, Vermont, to confirm that ICE wishes to take custody of the alien. The Department of Justice Office of Legal Counsel (OLC) provides oral advice and written opinions in response to various executive branch requests.11 When Attorney General Ashcroft announced the NSEERS system, he also announced the unequivocal conclusion of the OLC: “[A]rresting aliens who have violated criminal provisions of [the INA] or civil provisions that render an alien deportable . . . is within the inherent authority of the states.”

Shortly thereafter, the OLC retracted the relevant section of an erroneous 1996 OLC opinion on the subject. The OLC’s 2002 conclusion—that states possess inherent authority to make immigration arrests—was not an extraordinary one. However, it sparked an extraordinary reaction among those in Washington, D.C., who lobby for open borders and less effective enforcement of immigration laws.

UPDATE

Review of Judge Bolton’s Decision: The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 1) 

A comprehensive review and analysis of Judge Bolton’s erroneous decision.

Read why the Judge was wrong – compare “Congressional intent” with the Judge’s reasoning.

With these PDF documents:

Bolton’s Decision

DOJ Memo 04/02/2010

Links to:

DOJ Complaint

Arizona Law

The actual Immigration Statutes that should have “controlled” the Judge’s decision.

Official Web Sites of: DOJ/DHS/LESC/NSEERS/FBI

What does Congress “mandate” be done and by whom.

 https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

Obama Administration Files Suit Against Arizona – An Analysis of The AP Article

McAuley’s World Comments Bolded Blue:

First: The “Complaint” or lawsuit can be viewed here: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

The 25 page lawsuit fails to mention “racial profiling” or “discrimination” even once, giving light to the fact that the Obama Administration knew the claims of “profiling” and “discrimination” to be false from the very beginning – The Administration’s failure to even allege “discrimination” or to allege “racial profiling” in the suit, proves that those false claims were known to be false, in fact, the claims were nothing more than the Obama Administration’s “playing of the race card” in an attempt to exploit racial divisions in this Country for their political advantage.

The DOJ suit rests solely on a claim that the Arizona Law is pre-empted by Congress’ right to formulate immigration quotas and immigration criteria for foreign nationals to be admitted to the U.S..

The lawsuit fails to acknowledge or mention the numerous areas of “concurrent jurisdiction” over our immigration laws shared by the Federal and State Governments. The “suit” reads as if the “drafters” of the suit had never read the 1996 Comprehensive Immigration Reform Act.

See: https://mcauleysworld.wordpress.com/2010/07/06/the-immigration-debate-the-arizona-immigration-law-concurrent-federal-state-juridiction-operation-stone-garden-scaap/

and this from the official web site of Immigration Control & Enforcement (ICE):

http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm

Feds Vs. State Again in Suit Against Arizona Law

The federal lawsuit against Arizona’s tough new immigration law focuses heavily on a question that has been in the spotlight repeatedly the past decade and dates back to the Founding Fathers: The right of the government to keep states from enacting laws that usurp federal authority.

[In this article and in many of the “TV talk shows” the use of the term “Federal Government” has been rather loose. Remember that the “Federal Government” consists of three equal branches, The Executive Branch – headed by the President, The Congress and the Judiciary, or Courts who will decide who is correct in this lawsuit. This suit against Arizona has been filed by the Executive Branch, while the Immigration Laws to which it refers have been passed by Congress, not the Executive Branch. When the Executive Branch claims in the lawsuit, (page 1, lines 26-28) that, “In our constitutional system, the federal government has preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress.” The Executive Branch is stating the truth, however, the branch of the Federal Government with that “preeminent authority” is the Congress and not the Executive Branch. http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html ]

The lawsuit filed in Phoenix federal court on Tuesday sidestepped concerns about the potential for racial profiling and civil rights violations most often raised by immigration advocates. Experts said those are weaker arguments that don’t belong in a legal challenge brought by the White House to get the measure struck down.

Instead, the suit lays out why the government believes that immigration laws passed by Congress and enforced by a range of federal agencies must take precedence to any passed by a state Legislature.

[The Complaint filed to initiate this lawsuit presents only one side of the story. The Complaint does not recognize that the U.S. Congress has passed a host of laws “delegating” immigration law enforcement to the States and their Law Enforcement Officers. See this from the Official Web site of ICE, the U.S. Immigration Control and Enforcement Administration – a post by a subdivision of the Department of Homeland Security, discussing Section 287(g), Immigration and Nationality Act of 1996; Delegation of Immigration Authority :  http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm ]

The Arizona law requires officers, while enforcing other laws, to question a person’s immigration status if there’s a reasonable suspicion that they are here illegally, such as speaking poor English, traveling in an overcrowded vehicle or hanging out in an area where immigrants typically congregate.

[The Arizona law references none of the given examples as “proper” examples of “reasonable suspicion”, these examples are a residue of the previous and false charges that the law will result in racial profiling. See: https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/ First, the Arizona law provides for ending any discussion of “immigration status” by having a suspect produce a piece of ID, the law specifically identifies 11 different types of ID that will create a “presumption” that the suspect is a “legal resident” and bring the discussion of “immigration status” to an end.  

The law also makes it a state crime for legal immigrants to not carry their immigration documents.

[The Federal Law requiring legal immigrants to carry their documents has been in existence for decades, soon that requirement will be 100 years old]

Backers of the law say the crackdown is a necessary tool to keep illegal immigrants out of Arizona and combat problems such as drug trafficking, murders and violent kidnappings that have become so common in a state that is home to an estimated 460,000 undocumented residents.

[“A crackdown” is the term used by those who oppose the law, when they ascribe “motives” to the laws supporters. The Arizona law is, simply, a basic law enforcement tool, a necessary law enforcement tool, if one plans on enforcing any of our immigration laws or Arizona State laws. At the heart of this lawsuit is the basic act of asking a criminal suspect to produce identification, something that is asked of suspects all over this country, everyday of the week, 52 weeks a year. Why should someone “suspected” of being in the Country illegally be excluded from questioning? Why is Arizona’s “good faith” effort to enforce the laws of the Country a “crack-down”. Arizona’s enforcement of our immigration laws is only a “crack-down” if you contrast Arizona’s activity with, say, the City of Los Angeles, a Sanctuary City, that is in open violation of our Immigration laws. A City that provides ‘Sanctuary” for members of Mexico’s notorious Drug Cartels, a City that openly embraces the Cartel’s ancillary “drug gangs” like MS -13. The Obama Administration has not filed suit against a single “Sanctuary City”, cities that are flouting our immigration laws and providing “sanctuary” to the bloody killers of the Mexican Cartels. ]

The federal government will ask a judge to grant an injunction to block the law from taking effect on July 29.

The arguments will focus on a core constitutional concern — balancing power between the states and the federal government. More specifically, the issue centers on the long-running “pre-emption” legal argument that says federal law trumps state law.

[Yes, Federal law can trump state law, however, Federal law can also share “concurrent authority” with State Law and in other instances, Federal Law is replaced by State law.]

“The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests,” the suit says.

[A typical “wishful thinking” comment from someone who has spent their legal career in an “ivory tower” and not in the Immigration Courts or the Halls of Congress. Like so many of our laws, immigration law is often a ‘comprise” reached between competing interests in Congress. That is why our Supreme Court grants such deference to the Immigration Laws passed by Congress: http://www.fairus.org/site/PageServer?pagename=research_research397d]

The lawsuit goes on to say that a “state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.”

[The “immigration policy” reserved for the Federal Government, specifically reserved for the Congressional Branch of the Federal Government, is the power to “regulate” immigration, regulate by setting “quotas” and other “criteria” by which to judge those seeking admission to the Country and to set “standards” that must be met prior to gaining admission. http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html

The Arizona law does not set a single quota. The Arizona law doesn’t establish a single criteria or standard to be applied to anyone. Simply put, the Arizona Law allows Arizona Law Enforcement Officers to ask for suspects to identify themselves, a necessary first step in determining whether any of the Country’s immigration laws might apply and whether the suspect currently being questioned may have violated one of those laws.]    

Backers of the law say that Arizona will have some strong arguments in its favor in fighting the lawsuit.

Kris Kobach, the University of Missouri-Kansas City law professor who helped draft the Arizona law, has said the state law is only prohibiting conduct already illegal under federal law. And Harvard Law School professor Gerald Neuman believes Arizona could make a compelling legal argument that it has overlapping authority to protect its residents.

[ https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/ ]

But courts have ruled that under the Supremacy Clause of the Constitution, any state law that conflicts with a federal law is pre-empted. Federal law, the framers said, “shall be the supreme law of the land.”

[Except of course, where the framers of the Constitution said, “Any power not specifically granted to the Federal Government is reserved to the States’]

The pre-emption tactic has been successfully used by the federal government on several occasions over the years, including by the Bush administration to limit product liability lawsuits. The government also used it to overturn bans on military recruiters passed by liberal California towns.

[I am surprised that the author of this article didn’t mention Supreme Court Nominee Kagan, given the fact that Nominee Kagan challenged this very issue while she was Dean of Harvard Law and lost her case before the U.S. Supreme Court]

Federal courts have invoked the Supremacy Clause on immigration issues as well. For example, a federal judge in 2008 struck down a Dallas suburb’s ordinance that banned apartment rentals to illegal immigrants, saying the U.S. government has the ultimate authority to enforce immigration laws.

[The Obama Administration has also asked the Supreme Court to review Arizona legislation aimed at enforcing Federal laws that make it illegal to hire undocumented or “illegal aliens”. The Obama Administration is, if nothing else, consistent on this issue. The Administration refuses to enforce any of our immigration laws.  “The Obama administration on Friday urged the Supreme Court to review and set aside an Arizona law that sanctions employers who hire illegal immigrants, saying it would disrupt the “careful balance” that Congress struck in federal immigration law.” http://www.washingtonpost.com/wp-dyn/content/article/2010/05/28/AR2010052804319.html  ]

Despite the precedent, that doesn’t mean the lawsuit is a sure winner, or that state officials don’t believe they can pass laws that head into federal turf.

In fact, efforts by many states trying to block the nation’s new health care law run headlong into the Constitution’s Supremacy Clause. But immigration is one area where federal authority has generally been upheld.

[Upheld with many limitations: The Supremacy Clause of the Constitution also requires the States to, “enforce violations of the federal immigration laws.”The statutory law of the United States is part of the law of each state just as if it were written into state statutory law.” In 1999 a decision in the Tenth Circuit Court of Appeals upheld the independent authority of local police departments to enforce federal immigration lawhttp://www.fairus.org/site/PageServer?pagename=research_research397d  ]

“Immigration has traditionally and constitutionally been the historic preserve of the federal government, and there are cases going back to the late 19th century that say as much,” said Peter Spiro, a constitutional law professor at Temple University who has studied immigration law extensively. “So the Obama Administration has a lot to work with in filing this claim, and the fact that the claim is filed by the administration adds credibility … and increases the chances that law will be struck down on pre-emption grounds.

[With the exception being, the Congress, the Branch of the Federal Government that holds the power of regulating immigration, has in fact, delegated a good deal of the “enforcement responsibility to the States and State Law Enforcement Authorities.  Department of Homeland Security, discussing Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority : http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm  ]

“That said, it not by any means a slam dunk,” Spiro said.

Regardless of how the case is determined at the district court level, it will likely be appealed. The U.S. Supreme Court is already set to hear an Arizona immigration case in the fall when it takes up a challenge to a 2007 state law punishing employers who knowingly hire illegal immigrants.

[ http://www.washingtonpost.com/wp-dyn/content/article/2010/05/28/AR2010052804319.html  ]

If the high court doesn’t issue a broad ruling on states’ rights to implement laws on immigration in that case, prepare to see the case filed Tuesday make it to the justices, Spiro said.

“It’s clearly an important case. The Arizona law is unprecedented in its aggressive posture towards illegal immigrants. It’s an important issue federally, really, that’s the way the administration is framing it. They say the states do not have this kind of role as far an immigration legislation.”

[“Aggressive”? How is asking someone to identify themselves “aggressive”? How can any law, State or Federal, be enforced without allowing Law Enforcement Officers to question suspects and ask for identification? Clearly, the law is only “aggressive” if your “true” objective is to prevent enforcement of the immigration laws enacted by Congress]

http://abcnews.go.com/US/wirestory?id=11103944&page=3

This from the U.S. Department of Immigration Control and Enforcement, A Division of Homeland Security,  on the delegation of immigration authority to State Law Enforcement Officers:

June 22, 2007

Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority

A Law Enforcement Partnership

Terrorism and criminal activity are most effectively combated through a multi-agency/multi-authority approach that encompasses federal, state and local resources, skills and expertise. State and local law enforcement play a critical role in protecting our homeland security because they are often the first responders on the scene when there is an incident or attack against the United States. During the course of daily duties, they will often encounter foreign-born criminals and immigration violators who pose a threat to national security or public safety.

Section 287(g) of the Immigration and Nationality Act

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), effective September 30, 1996, added Section 287(g), performance of immigration officer functions by state officers and employees, to the Immigration and Nationality Act (INA). This authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Agreement (MOA), provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

State and local patrol officers, detectives, investigators and correctional officers working in conjunction with ICE gain: necessary resources and authority to pursue investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering; and support in more remote geographical locations.

Memorandum of Agreement

The MOA defines the scope and limitations of the authority to be designated. It also establishes the supervisory structure for the officers working under the cross-designation and prescribes the agreed upon complaint process governing officer conduct during the life of the MOA. Under the statute, ICE will supervise all cross-designated officers when they exercise their immigration authorities. Once the scope of limitations of the MOA has been reached, the assistant secretary of ICE, and the governor, a senior political entity, or the head of the local agency may sign the MOA, requesting the cross-designation.

http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm

How, exactly, can this process of “co-operation” and “enforcement” begin, if you deny Law Enforcement Officers the right to question suspects and determine if they are illegal alien criminals?

Authority delegated to the States by Congress cannot be nulified by the Executive Branch as the Executive Branch tries to deny the States the ability to exercise the authority duly extended by Congress. If the Executive Branch wants to reverse our existing Immigration Law and implement an “amnesty” and “open borders” policy,  let the Executive Branch pass such changes through Congress as required by our Constitution and not attempt to usurp the power of Congress to write the Country’s immigration laws through the dereliction of duty by the Executive Branch as it refuses to enforce the immigrations laws passed by Congress.

Also See: 

THE QUINTESSENTIAL FORCE MULTIPLIER: THE INHERENT AUTHORITY OF LOCAL POLICE TO MAKEIMMIGRATION ARRESTS: By Kris W. Kobach; Professor of Law, University of Missouri (Kansas City) School of Law. A.B. 1988, Harvard University; M.Phil. 1990, Oxford University; D.Phil. 1992, Oxford University; J.D. 1995, Yale Law School.

 http://www.irli.org/ForceMultiplrKobach.pdf

On 04/23/2002 the DOJ (Department of Justice) issued a memorandum discussing  the very issues upon which the Obama Administration has based the current law suit against Arizona ….. in 2002 the DOJ clearly stated that concurrent enforcement of either civil or criminal violations of Federal Immigration laws was not, in fact, preempted or reserved under the supremacy clause of the Constitution or any Federal Statute.

2002 DOJ Memo

The Immigration Debate: The Arizona Immigration Law – Concurrent Federal & State Jurisdiction – Section 287(G) of the IIRAIRA, Operation Stone Garden & SCAAP

For a full discussion of Arizona’s Immigration Law see: https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/

ARIZONA’S LAW AND THE CONCURRENT ENFORCEMENT OF FEDERAL IMMIGRATION LAWS

Detractors of the Arizona Law have presented many false arguments in support of what is a politically motivated playing of yet another “race bating card” prior to the upcoming elections in November.

The first such argument was that the law called for racial profiling, which the law specifically prohbitis.  https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/

The second argument was that the law would result in racial profiling by law enforcement officers in Arizona. If such an act occurs under the Arizona law, the act would be an act of misfeasance. Misfeasance is the wrongful performance of a normally lawful act. http://dictionary.reference.com/browse/misfeasance

A law setting a 25 mile an hour speed limit is lawful and constitutional. A law enforcement officer, who pulls a driver over because of their race, not because they are speeding, is committing an act of malfeasance. Malfeasance is a civil and criminal wrong, however, the officer’s malfeasance does not make the speed limit law unconstitutional.    

The third argument is that the States may not usurp (usurp – to use without authority or right, to take from without authority.  http://dictionary.reference.com/browse/usurp) the Federal Governments authority to set “immigration quotas” and other “criteria” (criteria: a standard of judgment – a rule or principle for evaluating. http://dictionary.reference.com/browse/criteria ) for admitting or declining admission of foreign nationals to the United States. The Arizona Law does not attempt to usurp the “exclusive powers” delegated to the U.S. Congress, the powers to “regulate” immigration into the United States.

What the Arizona Law does do is this, in the performance of their delegated duties; Arizona Law Enforcement Officers may question suspects, suspects being investigated for other crimes, about their immigration status when a reasonable suspicion exists that the suspect is in the Country illegally.

The Arizona Law acknowledges that a “concurrent jurisdiction” exists between the Federal Government and the State of Arizona’s Government for enforcing the immigration laws created by the U.S. Congress.

Concurrent jurisdiction:  jurisdiction that is shared by different courts, such as crimes committed on boundary rivers. http://dictionary.reference.com/browse/jurisdiction?db=legal&q=jurisdiction; Concurrent jurisdiction is the ability to exercise judicial review by different courts at the same time, within the same territory, and over the same subject matter. A state may have concurrent jurisdiction with a federal court, for example, when a crime defined under state law is committed on federal property, and certain offenses involving Indian tribal members. State and federal courts also have concurrent jurisdiction over the Jones Act, which authorizes seaman who suffers personal injury in course of employment to bring action for damages at law. http://www.ask.com/bar?q=concurrent+jurisdiction&page=1&qsrc=2445&dm=all&ab=1&u=http%3A%2F%2Fdefinitions.uslegal.com%2Fc%2Fconcurrent-jurisdiction%2F&sg=CXQmmGv5mT%2Bvb%2BTvdtRDWPjJ1Fanyu1EeFXOf%2BD6lsY%3D&tsp=1278423837109 .

The Federal Government’s right to set immigration quotas and criteria is exclusive; however, the Federal Government’s duty to enforce these laws is not, that duty is a “concurrent duty” with those of the States.

Concurrent Jurisdiction: The Federal Government’s Acknowledgement of Concurrent Enforcement of the Immigration Laws

Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority 

A Statement from U.S. Immigration and Custom Enforcement (ICE): June 22, 2007

Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority

A Law Enforcement Partnership

Terrorism and criminal activity are most effectively combated through a multi-agency/multi-authority approach that encompasses federal, state and local resources, skills and expertise. State and local law enforcement play a critical role in protecting our homeland security because they are often the first responders on the scene when there is an incident or attack against the United States . During the course of daily duties, they will often encounter foreign-born criminals and immigration violators who pose a threat to national security or public safety.

Section 287(g) of the Immigration and Nationality Act

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), effective September 30, 1996, added Section 287(g), performance of immigration officer functions by state officers and employees, to the Immigration and Nationality Act (INA). This authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Agreement (MOA), provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

State and local patrol officers, detectives, investigators and correctional officers working in conjunction with ICE gain: necessary resources and authority to pursue investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering; and support in more remote geographical locations.

Memorandum of Agreement

The MOA defines the scope and limitations of the authority to be designated. It also establishes the supervisory structure for the officers working under the cross-designation and prescribes the agreed upon complaint process governing officer conduct during the life of the MOA. Under the statute, ICE will supervise all cross-designated officers when they exercise their immigration authorities. Once the scope of limitations of the MOA has been reached, the assistant secretary of ICE, and the governor, a senior political entity, or the head of the local agency may sign the MOA, requesting the cross-designation.

Criminal Alien Program (CAP)

Under current MOAs, 287(g) participants in Arizona , California , and North Carolina currently ensure that criminal aliens incarcerated within federal, state and local facilities are not released into the community upon completion of their sentences. ICE is working to expand 287(g) authority to local and county correctional facilities that are not operational within normal ICE jurisdictions. The expansion of the 287(g) program into smaller county and local correctional facilities will act as a force multiplier for CAP and have a positive impact on this important program.

http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm

Arizona Officers Join Operation Stone Garden to Beef up Border Security: November 23, 2004

Yuma police and the Yuma County Sheriff’s Office are taking part in a new Department of Homeland Security initiative that uses local law enforcement officers to beef up border security.

Known as Operation Stone Garden, the action consists of distributing federal grant money to cover overtime pay for local law enforcement officers to augment efforts to secure U.S. borders along Canada and Mexico, said Kristi Clemens, spokeswoman for U.S. Customs and Border Protection.

Clemens said a total of 213 state, local and tribal law enforcement agencies are participating in Operation Stone Garden in Arizona, Alaska, Texas, California, Maine, Michigan, Minnesota, Montana, New Mexico and North Dakota.

Yuma City Police Department and Yuma County Sheriff’s Office are currently participating while the Somerton and Cocopah police agencies are considering joining the effort, officials with each agency said.

“The objective is to increase law enforcement presence and activity,” said Yuma police spokeswoman Leanne Worthen. “We’re going to take Operation Stone Garden and focus on self-initiated activity in some target areas and deal with any of the criminal activity.”

Participation in the operation does not mean Yuma police and sheriff’s deputies will be taken away from their regular duties, nor does it mean local law enforcement will be taking over the job of Custom’s officers and Border Patrol agents, Worthen said.

 

For the sheriff’s office, joining the multi-agency effort means having a greater presence in key areas in the San Luis area to combat Mexican nationals who cross into Arizona and commit crimes, said Yuma County Sheriff’s Capt. Eben Bratcher.

“We are performing law enforcement activity on the border … it is strictly what we would normally do but with enhanced presence,” Bratcher said.

Earlier this week the Yuma County Board of Supervisors approved $153,216 of federal grant money to cover overtime pay for Sheriff’s deputies engaged in the operation.

Clemens said the Department of Homeland Security made available in early October $13.5 million in grant money to local agencies for the operation. Clemens said the operation was not made public and federal authorities instead contacted local law enforcement agencies directly about the grant money.

http://www.policeone.com/border-patrol/articles/93829-Arizona-Officers-Join-Operation-Stone-Garden-to-Beef-Up-Border-Security/

The Obama Administration uses “Operation Stone Garden” for “Photo Op” in the war against Cartel related border violence.

Napolitano: Heightened enforcement to prevent drug violence from spilling in from Mexico

Homeland Security Secretary Janet Napolitano announced $30 million in federal grants Tuesday to prevent drug-fueled violence from spilling into the United States from Mexico, heralding it as the latest of several moves in recent months to bolster border enforcement.

Law enforcement agencies in Texas will get nearly $13 million, California and Arizona will get more than $7 million each and New Mexico will receive nearly $3 million under the federal Operation Stone Garden program.

Napolitano broke little new ground in what her office billed as a major speech on border enforcement. She highlighted previously announced measures — most recently, enhanced oversight at the department’s widely criticized immigration detention centers. She expressed hope for an overhaul of immigration laws, while vowing to continue enforcing existing laws.

The $30 million for Operation Stone Garden is in addition to $60 million for the program announced in June, mostly for the border region. It will pay for overtime, travel and other expenses to bolster state and local law enforcement on the Mexican border.

http://blog.taragana.com/n/napolitano-heightened-enforcement-to-prevent-drug-violence-from-spilling-in-from-mexico-136886/

The Federal SCAAP Program 

State Criminal Alien Assistance Program (SCAAP): The Federal Bureau of Justice Assistance administers the State Criminal Alien Assistance Program, in conjunction with the Bureau of Immigration and Customs Enforcement and Citizenship and Immigration Services, Department of Homeland Security (DHS). SCAAP provides federal payments to states and localities that incurred correctional officer salary costs for incarcerating undocumented criminal aliens with at least one felony or two misdemeanor convictions for violations of state or local law, and incarcerated for at least 4 consecutive days during the reporting period.

Use of SCAAP Awards: The Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162, Title XI) included the following requirement regarding the use of SCAAP funds: “Amounts appropriated pursuant to the authorization of appropriations in paragraph (5) that are distributed to a State or political subdivision of a State, including a municipality, may be used only for correctional purposes.” Beginning with FY 2007 SCAAP awards, SCAAP funds must be used for correctional purposes only.

[Enforcement Funding is provided through “Operation Stone Garden” and other Federal Programs]

Qualifying Criminal Charges and Convictions
To be eligible for reporting, inmates must have been convicted of a felony or second misdemeanor for violations of state or local law, and housed in the applicant’s state or local correctional facility for 4 or more consecutive days during the reporting period. Once a person meets these criteria, all pre-trial and post-conviction time served from July 1, 2008 through June 30, 2009 may be included in the FY 2010 application.

Entering Inmate Data: If the Alien Number is unknown for an individual inmate, enter all zeroes in the A number field. Do not use letters (A) or symbols (dashes, etc.). Also, use zeros (0) as the beginning digit(s) if the A-number is fewer than 9 digits.

The FBI number is issued by the FBI to track arrests and fingerprint records. If this number is not available, leave this field blank by inserting 10 spaces. If the FBI number is fewer than 10 characters, enter the number first, and then insert spaces for the remainder of the field length.

[Clearly, the Federal Government “requires” that the State of Arizona idenitfy these “criminal aliens” in order to qualify for the SCAAP reimbursement for “holding” these criminals that should be the responsibility of the Federal Government, criminals that shjould be “deported” undre Federal Law. Criminals that would be prevented from enteringthis COuntry under our immigration laws, if they were being enforced and prohibited from staying in this Country under any proposed “amnesty program”]

2010 SCAAP Data:
FY 2010 SCAAP Guidelines (PDF)
FY 2010 ICE Country Codes (PDF)
FY 2010 Inmate Data File Format (PDF

http://www.ojp.usdoj.gov/BJA/grant/scaap.html

SCAAP Overview

The Bureau of Justice Assistance (BJA), Office of Justice Programs, U.S. Department of Justice, administers SCAAP, in conjunction with the U.S. Department of Homeland Security (DHS). SCAAP provides federal payments to states and localities that incurred correctional officer salary costs for incarcerating undocumented criminal aliens who have at least one felony or two misdemeanor convictions for violations of state or local law, and who are incarcerated for at least 4 consecutive days during the reporting period.

SCAAP Legislative Authority

SCAAP is governed by Section 241(i) of the Immigration and Nationality Act, 8 U.S.C. § 1231(i), as amended, and Title II, Subtitle C, Section 20301, Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322. In general terms, if a chief executive officer of a state or a political subdivision exercises authority over the incarceration of undocumented criminal aliens and submits a written request to the U.S. Attorney General, the Attorney General may provide compensation to that jurisdiction for those incarceration costs. SCAAP is subject to additional terms and conditions of yearly congressional appropriations.

http://www.ojp.usdoj.gov/BJA/grant/2007_SCAAP_Guidelines.pdf

[SCAAP is a creation of Congressional Enactment of Federal Immigration Law]

Eligible Inmates

• Were born outside the United States or one of its territories and had no reported or documented claim to U.S. citizenship.

• Were in the applicant’s custody for 4 or more consecutive days during the reporting period.

• Were convicted of a felony or second misdemeanor for violations of state or local law.

Were identified and reported as undocumented, using due diligence.

• Persons who entered the U.S. without inspection or at any time or place other than as designated by the Attorney General.

• Persons in deportation or exclusion proceedings at the time they were taken into custody.

• Non-immigrants who failed to maintain their non-immigrant status at the time they were taken into custody.

• Certain Mariel Cubans who otherwise meet these requirements.

http://www.ojp.usdoj.gov/BJA/grant/2007_SCAAP_Guidelines.pdf 

Conclusion:

The Obama Administration’s use of the Department of Justice to challenge the Arizona Immigration Law is a shameless act of “race baiting” intended to divide the Nation, creating a division that the Obama Administration hopes to exploit for political advantage.

The Obama Administration knows full well that the Arizona Law does not infringe upon the Federal Government’s “exclusive powers”, that the law is nothing more than a basic law enforcement tool, the tool of requiring suspects to identify themselves.

The Arizona Law allows for the questioning of a suspect as a precursor to contacting ICE and requesting the assistance and supervision of ICE  personal as is outlined in Section 287(g) of the Immigration and Nationality Act of 1996.

The Arizona Law is a necessary adjunct to a successful application of “Operation Stone Garden”, a concurrent program of law enforcement.

The Arizona Law is a necessary adjunct to a successful application of the SCAAP Program and will allow Arizona Law Enforcement Officers to gather the information necessary to obtain reimbursement from the Federal Government under the SCAAP Program.

The Obama Administration is dishonest when it claims that these “programs” can be implemented without allowing Arizona Law Enforcement Officers to identify those criminals who have entered our Country illegally.

Examples Of Reporting From SCAAP

                                  EXAMPLES                             REPORTABLE DAYS
An alien was convicted of a felony during the reporting period and spent 20 days in pretrial detention and 60 additional days from the conviction. All 80 days occurred during the reporting period.                                                80
An alien was convicted of a felony during the reporting period and spent 20 days in pretrial detention and 60 additional days from the conviction. The 20 pretrial detention days and 40 of the sentenced days occurred in the reporting period; the remaining 20 days were served after June 30, 2006.                                                60
An alien was convicted of a felony several years ago and is being held in pretrial detention on new charges. As this alien already qualifies based on the prior felony conviction, once he meets the minimum of 4 consecutive days in custody during the reporting period, the pretrial days may be reported to BJA, regardless of the outcome of the pending charges.                                          As calculated
An alien was convicted of a second misdemeanor and served 3 consecutive days as of June 30, 2006, and 20 additional days after June 30, 2006. This inmate cannot be reported for FY 2007, but will qualify for FY 2008. NOTE: The first 3 days of the sentence are not reportable, regardless of what occurs with this inmate in the future.                                                   0

In 2009 the State of Arizona received $12.8 million dollars in SCAAP reimbursements from the Federal Government. http://www.ojp.usdoj.gov/BJA/grant/09SCAAPawards.pdf

UPDATE: DOJ files suit against Arizona.

The 25 page lawsuit fails to mention “racial profiling” or “discrimination” even once, giving light to the fact that the Obama Administration knew the claims of “profiling” and “discrimination” to be false from the very beginning – The Administration’s failure to even allege “discrimination” or to allege “racial profiling” in the suit, proves that those false claims were known to be false, in fact, the claims were nothing more than the Obama Administration’s “playing of the race card” in an attempt to exploit racial divisions in this Country for their political advantage.

The DOJ suit rests solely on a claim that the Arizona Law is pre-empted by Congress’ right to formulate immigration quotas and immigration criteria for foreign nationals to be admitted to the U.S..

The lawsuit fails to acknowledge or mention the numerous areas of “concurrent jurisdiction” over our immigration laws shared by the Federal and State Governments. The “suit” reads as if the “drafters” of the suit had never read the 1996 Comprehensive Immigration reform Act.

Update 2:

The 1st and 2nd causes involve the same argument ciitng two diffrent portions of the Constitution (see page 23 of the Complaint, Cause 1:Supremecy, Cause 2:Pre-emption and cause 3) The Commerce Clause. There are no causes claiming “racial profiling” or “discrimnation”.

The Complaint can be viewed here: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

I find the following interesting: Beginning on page 12, #31: Through a variety of programs, DHS works cooperatively with states and localities to accomplish its mission to enforce the federal immigration laws. Among these efforts is the Law Enforcement Agency Response program (“LEAR”), an Arizona-specific program that is operational 24 hours a day, 7 days a week, for responding to calls from state and local law enforcement officers seeking assistance from ICE regarding suspected unlawfully present aliens. ICE also administers the Law Enforcement Support Center (“LESC”), also operational 24 hours a day, 7 days a week, which serves as a national enforcement operations center and – among other responsibilities – promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.

continuing of page 13: Further, ICE and CBP officers respond to requests from state and local law enforcement officers on a variety of immigration matters, including assisting with translation, determining alienage, and evaluating immigration documentation.

# 32…. But the opportunity that federal law provides for participation by state and local officials does not mean that states can enact their own immigration policies to rival the national immigration policy; the formulation of immigration policy and balancing of immigration enforcement priorities is a matter reserved for the federal government. Such regulations do not fall within the state’s traditional police powers and remain the exclusive province of the federal government…..

It is gratifying to see that the Government has droppped the self serving pretence of “profiling” or “discrimination”, however, I belive the Court will quickly point out that the Arizona Law does not create an “IMMIGRATION POLICY” of any type, the law, simply, allows law enforcement officers to question “suspects” about their immigration status …….

exactly how else would these State Law Enforcement officers “trigger” a call to ICE or the supervision by ICE of a criminal detainee, without first identifying whether the “suspect” or “detainee” was an illegal alien … maybe the Obama Administration suggests the Law Enforcement Officers use of Tarot cards …..

I really enjoyed the portion of the suit where the Government alleges that it will cost too much to enforce Arizona’s Law and that if the Arizona Law prevails the Federal Government won’t be able to pick and choose the laws it enforces: At page 18 lines 3 to 8: “Mandatory state alien inspection schemes and attendant federal verification
requirements will impermissibly impair and burden the federal resources and activities of DHS. S.B. 1070’s mandate for verification of alien status will necessarily result in a dramatic increase in the number of verification requests being issued to DHS, and will
thereby place a tremendous burden on DHS resources, necessitating a reallocation of DHS
resources away from its policy priorities.”

Oh my gosh – DHS will need to verify that illegals are illegal …….

Once again check out what ICE had to say about the working relationship between Federal & State Agencies and the “Delegation of Immigration Authority” to the States here:

http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm

On April 23, 2002 the DOJ (Departement of Justice) considered and rejected the very arguments presented by the Obama Adminstration in its lawsuit against the State of Arizona. The “findings” of the DOJ are “memorialized” in the following memo:

2002 DOJ Memo

UPDATE

Review of Judge Bolton’s Decision: The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 1) 

A comprehensive review and analysis of Judge Bolton’s erroneous decision.

Read why the Judge was wrong – compare “Congressional intent” with the Judge’s reasoning.

With these PDF documents:

Bolton’s Decision

DOJ Memo 04/02/2010

Links to:

DOJ Complaint

Arizona Law

The actual Immigration Statutes that should have “controlled” the Judge’s decision.

Official Web Sites of: DOJ/DHS/LESC/NSEERS/FBI

What does Congress “mandate” be done and by whom.

 https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

Grissly Slayings Announce Mexican Cartel Violence In U.S.

Shipment of Cartel Drugs

Five men dead in an apartment.

In a county that might see five homicides in an entire year, the call over the sheriff’s radio revealed little about what awaited law enforcement at a sprawling apartment complex.

A type of crime, and criminal, once foreign to this landscape of blooming dogwoods had arrived in Shelby County. Sheriff Chris Curry felt it even before he laid eyes on the grisly scene. He called the state. The FBI. The DEA. Anyone he could think of.

“I don’t know what I’ve got,” he warned them. “But I’m gonna need help.”

The five dead men lay scattered about the living room of one apartment in a complex of hundreds.

Some of the men showed signs of torture: Burns seared into their earlobes revealed where modified jumper cables had been clamped as an improvised electrocution device. Adhesive from duct tape used to bind the victims still clung to wrists and faces, from mouths to noses.

As a final touch, throats were slashed open, post-mortem.

SEE: Mexican Drug Cartel Violence: Mexican Marines arrest presumed leader of Beltran Leyva Cartel – Sergio Villarreal Barragan taken into custody

It didn’t take long for Curry and federal agents to piece together clues: A murder scene, clean save for the crimson-turned-brown stains

Cartel Victims Executed At Drug Rehab Facility

 now spotting the carpet. Just a couple of mattresses tossed on the floor. It was a typical stash house.

But the cut throats? Some sort of ghastly warning.

Curry would soon find this was a retaliation hit over drug money with ties to Mexico’s notorious Gulf Cartel.

Curry also found out firsthand what federal drug enforcement agents have long understood. The drug war, with the savagery it brings, knows no bounds. It had landed in his back yard, in the foothills of the Appalachians, in Alabama’s wealthiest county, around the corner from The Home Depot.

One thousand, twenty-four miles from the Mexico border.

Forget for a moment the phrase itself – “War on Drugs” – much-derided since President Richard Nixon coined it. Wars eventually end, after all. And many Americans wonder today, nearly four decades later, will this one ever be won?

The Mutilated Corpes Cartel Victims

In Mexico, the fight has become a real war. Some 45,000 Mexican army troops now patrol territories long ruled by narcotraffickers. Places like Tijuana, in the border state of Baja California. Reynosa, across the Rio Grande from Texas. Ciudad Juarez, next door to El Paso. But also the central state of Michoacan and resort cities like Acapulco, an hour south of the place where, months ago, the decapitated bodies of 12 soldiers were discovered with a sign that read:

“For every one of mine that you kill, I will kill 10.”

Some 10,560 people have been killed since 2006, the year Mexican President Felipe Calderon took office and launched his campaign against the organized crime gangs that move cocaine, methamphetamine, marijuana and heroin to a vast U.S. market. Consider that fewer than 4,300 American service members have died in the six-year war in Iraq.

The cartels are fighting each other for power, and the Calderon administration for their very survival. Never before has a Mexican president gone after these narco-networks with such force.

“He has deployed troops. He has deployed national police. He’s trying to vet and create units … that can effectively adjudicate and turn back the years of corruption,” says John Walters, who directed the Office of National Drug Control Policy for seven years under President George W. Bush. “These groups got more powerful, and when there was less visible destruction, it was because they were in control; they were stable. Now, he has destabilized them.”

Walters sees this as an “opportunity to change – for better, or worse – the history of our two countries fundamentally.”

And now the cartels have brought the fight to us: In 230 U.S. cities, the Mexican organizations maintain distribution hubs or supply drugs to local distributors, according to the Justice Department’s National Drug Intelligence Center.

Places like Miami and other longtime transportation points along the California, Arizona and Texas borders. But also Twin Falls, Idaho. Billings, Mont. Wichita, Kan. Phoenix. St. Louis. Milwaukee.

Even Shelby County.

The quintuple homicide occurred just outside the Birmingham city limits and a half-hour’s drive north of Columbiana, the county seat.

“We became a hub without knowing it,” Sheriff Curry says. “We’ve got to wake people up because we’re seeing it all over the place. It is now firmly located throughout this country.”

The talk of the day is “spillover” violence – at once the stuff of sensationalism but also a very real concept.

In Phoenix, the nation’s fifth-largest city, police report close to 1,000 kidnappings over the past three years tied to border smuggling, be it human or drugs or both. The rise parallels a shift in illegal immigrant crossings from California and Texas to the Arizona border, where many of the same gangs transporting people transport drugs. The perpetrators are often after ransom money, for a drug load lost or from a family that paid to have a relative brought over.

The problem has earned the city the unfortunate distinction of “America’s kidnapping capital” in some media accounts, even though the incidents are mostly out of sight and out of mind for law-abiding residents and overall crime, including homicides, was down last year.

In Atlanta, which has grown into a major distribution hub for the Gulf Cartel, trafficker-on-trafficker violence has become more common as the cartels, in the face of Calderon’s crackdown, impose tighter payment schedules and grow less tolerant of extending credit, says Rodney Benson, chief of the Drug Enforcement Administration there.

Benson blames that, in part, for the much-publicized kidnapping last summer in the middle-class Atlanta suburb of Lilburn, not far from Stone Mountain Park. Acting on a tip, agents found a Dominican man chained to a wall in the basement of a house, severely dehydrated and badly beaten. He had been lured from Rhode Island because he apparently owed $300,000 in drug debts.

“Money wasn’t paid,” Benson says. “They were going to kill him.”

Greg Borland heads the DEA office in Birmingham. Since the murders last August, he’s seen the fear in his neighbors’ eyes, and faced their questions: How did this happen? Why here? Why now?

“They’re absolutely shocked. To me it’s like: Why? It’s everywhere. Unless you have a 50-foot wall around your town, no one should feel immune from this. The citizen in me says, I can’t believe this is happening in my town.’ But the cop in me says, Well, it’s only a matter of time’ … because there are high-level drug traffickers in the area.

“Maybe,” he says, “it was only by the grace of God that it hadn’t happened already.”

13 Men, executed with hands tied behind their backs, San Ignacio, Sinaloa, Mexico

Those in the know understand that this kind of violence is nothing new. In border communities that have long been trafficking hubs it’s uncommon not to hear of a drug-related crime on the evening news.

What’s new is where that violence is erupting, where distribution cells and hubs and sub-hubs have surfaced. How an apartment in Alabama became the site of a drug hit in many ways tells the story of the narco-trade in America in 2009, and of the challenges we face in combatting a blight that has spread to big cities and small all across the land.

Before Aug. 20, 2008, when the five men were found, the assumption had been that the big drug hauls were passing through Shelby County and on to cities with larger markets.

Alabama had long had its share of street dealers. Homegrown pot passed hands. Then powder cocaine and crack. Soon meth labs cropped up here and there. “Just a local issue,” says Curry.

“There weren’t really any traffickers in our county. But over time it’s escalated into a sophisticated transportation structure that moves marijuana, moves powder cocaine and now moves crystal meth.”

First came the rise of the Mexican cartel, brought about in the late 80s and early 90s after authorities cracked down on Colombian traffickers and choked off routes along the Caribbean and in South Florida. The Colombians aligned with the Mexicans for transportation, then began paying their Mexican subcontractors in cocaine.

As more Colombian traffickers were brought down, the Mexicans took over both transportation and distribution. A decade ago, 60 percent of the cocaine entering the United States came through Mexico. Today that figure is 90 percent.

Texas and other border states become primary distribution hubs. Greg Bowden, who heads the FBI’s violent crime task force in Birmingham, worked four years in the Texas border city of Brownsville. He remembers cases involving Alabama dealers who would fly into Houston, rent a car, pick up loads at a warehouse or mall parking lot and drive back home.

“(Distributors) felt comfortable in Texas. That was their home base, and has been for a long time. Now,” says Bowden, “they’re comfortable here, in Memphis, in Atlanta. They moved their home bases to these little pockets.”

One reason for that shift is the ability these days to “blend in in plain sight,” as the Atlanta DEA chief puts it. The flood of Hispanic immigrants into American communities to work construction and plant jobs helped provide cover for traffickers looking to expand into new markets or build hubs in quiet suburbs with fewer law officers than the big cities.

Shelby has long been Alabama’s fastest-growing county, with its proximity to Birmingham, good schools and a growing corporate corridor along Highway 280. The number of Hispanics grew 126 percent from 2000 to 2007. It was once rare to see a Latino face at the local Wal-Mart or gas station. Now, dozens upon dozens of Hispanic day laborers line Lorna Road in the northern part of the county.

As Bowden says, “You don’t stand out.”

But there is another reason this area, and others, have become what some agents call “sub-hubs.”

With some 4.9 million trucks crossing into the United States from Mexico every year, tractor-trailers have become a transportation mode of choice among traffickers. Drugs head north, but weapons and cash also head back south – like the $400,000 Border Patrol agents found on April 2 near Las Cruces, N.M., stashed in the refrigeration unit of a semi.

Shelby County is a trucking mecca, with highways 65, 20, 59 and 459 running east to Atlanta, north to Nashville, south to New Orleans, west to Dallas. Once reluctant to haul drug shipments too far beyond a border state, drivers are willing to take more chances now, because there are so many trucks on the road, Bowden says.

Since January, 27 people were sentenced in Alabama federal court in just one case for using tractor-trailers to transport cocaine and marijuana from Mexico across the border to Brownsville, then up through Birmingham on I-65 to northern Alabama for distribution. Investigators seized 77 pounds of cocaine during the investigation – more than the DEA seized in the entire state of Alabama in all of 1999. The scheme, according to an indictment, had operated since 2004.

Amid all of this, an operation moved into Shelby County, leading to the call on Aug. 20.

A simple welfare check brought deputies to the Cahaba Lakes Apartments off Highway 280, down the road from upscale Vestavia Hills, whose motto is “A Better Place to Live.”

The victims were Hispanic, all illegal immigrants. Interviews with family members and associates helped investigators piece together a sketchy portrait of what happened.

Agents described it as friendly competition turned deadly among a group of distributors from Atlanta and Birmingham that often sold and shared drug loads when one or the other group was running low. At some point, about a half-million in drug money went missing. One group suspected the other of taking it, and went after the five men at Cahaba Lakes.

The money was never found.

Whether an order came directly from Mexico, or the decision was made down the food chain, investigators don’t know.

The DEA’s Borland notes that making a direct connection between the street level distributors charged in the killing and a specific cartel boss back in Mexico isn’t easy in a business with so many players at various levels.

“We don’t have canceled checks of their dues payments to the cartels. But we know that they were moving large quantities of drugs, which are probably brought in here under the supervision of the Gulf Cartel, because the Gulf Cartel is the dominant one here,” he says.

“That money was supposed to be moving … and it disappeared. So the attempt was to locate where was the money and who took it?” Curry says. “It was a contract hit, ordered to be carried out and paid for.”

Since then, Curry has pushed aside concerns about resources and assigned one deputy to a DEA task force, another to work with the FBI. At the behest of the Department of Homeland Security, he joined in a conference call with police chiefs and sheriffs in border states to discuss what he now calls “a common problem.”

And he answers, as candidly as possible, his citizens’ questions when they ask him about this “new” threat.

“People want to have a comfort zone, and if they have to confront the realities of how rough life really is, that doesn’t sit well,” he says. “It scares them. And they don’t want to be scared. South of our border: gunfights, violence – it is a normal, accepted, expected behavior. That has now moved into our borders.”

Ask just about any DEA agent or expert who keeps a close watch on drug trafficking, and they’ll cringe at the use of the word “war.” They’ll tell you, flat out, that no, it’s not likely ever to be won. Just as there will always be robberies and rapes and homicides, there will always be narcotrafficking.

So they take their victories where they can. And there have been victories.

Heads of cartels have been toppled. Juan Garcia Abrego, former chief of the Gulf Cartel and once on the FBI’s Ten Most Wanted list, is serving 11 life terms in a Colorado federal prison after his 1996 arrest in Mexico and extradition to the United States. His successor, Osiel Cardenas, awaits trial in Houston after his 2007 extradition from Mexico.

These handovers have become almost routine under Calderon, who reversed long-standing practice and allowed more Mexicans to be tried in the United States. Last year, he extradited a record 95 wanted criminals, including several high-ranking members of the Tijuana-based Arrellano-Felix cartel.

Arrests were swift in this murder, six suspects now are held without bond in the Shelby County Jail charged with capital murder. One owned a tire shop, another was a barber – more evidence to authorities of how bad guys can blend in.

Still, it is a victory without call for celebration, because Curry wonders when and where it will happen again.

“This is not an isolated incident. It is a standard business practice with this group of people, and it is simply going to be repeated,” he says. “I can’t predict whether it’s going to be repeated here or not, but it’s going to be repeated in communities throughout the United States whenever these disagreements occur.”

Read more: http://www.azcentral.com/news/articles/2009/04/18/20090418drugwar-fightathome18-ON.html#ixzz0sopGikpQ

Bloody Border: 21 Killed in Mexican Cartel Battle Near Arizona

UPDATE: Review of Judge Bolton’s Decision begins here: The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 1) 

A massive gun battle between rival drug and migrant-trafficking gangs breaks out near the Arizona-Mexico border — raising fears that the escalating violence, like the Monday shooting shown at left, will spill onto American soil.

A massive gun battle between rival drug and migrant trafficking gangs near the U.S. border Thursday left 21 people dead and at least six others wounded, prosecutors said.

21 killed in shootout between drug, migrant trafficking gangs near Arizona border

HERMOSILLO, Mexico

HERMOSILLO, Mexico (AP) — A massive gun battle between rival drug and migrant trafficking gangs near the U.S. border Thursday left 21 people dead and at least six others wounded, prosecutors said.

The fire fight occurred in a sparsely populated area about 12 miles (20 kilometers) from the Arizona border, near the city of Nogales, that is considered a prime corridor for immigrant and drug smuggling.

The Sonora state Attorney General’s Office said in a statement that nine people were captured by police at the scene of the shootings, six of whom had been wounded in the confrontation. Eight vehicles and seven weapons were also seized.

All of the victims were believed to be members of the gangs.

The shootings occurred near a dirt road between the hamlets of Tubutama and Saric, in an area often used by traffickers.

Gangs often fight for control of trafficking routes and sometimes steal “shipments” of undocumented migrants from each other, but

13 Cartel Victims Executed Outside San Ignacio, Sinaloa

 seldom have they staged such mass gun battles.

Gang violence near the Arizona border has led to calls from officials in the U.S. state for greater control of the border and is one reason given for a controversial law passed in April requiring Arizona police to ask people about their immigration status in certain situations. [This statement is false. The Arizona Law does not “require” police to ask about an individuals immigration status – the law outlines when it is permissable to do so. See: https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/ ] 

In a city on another part of the U.S. border, gunmen killed an assistant attorney general for Chihuahua state and one of her bodyguards.

After being chased by armed assailants through the darkened streets of Ciudad Juarez, the vehicle carrying Sandra Salas Garcia and two bodyguards was riddled with bullets Wednesday night.

Arturo Sandoval, a spokesman for the Attorney General’s Office, said the second bodyguard was seriously wounded.

"Dead Hands", Cartel Victims - executed with hands tied behind their backs

Salas was responsible for evaluating the work of prosecutors and special investigations units in Chihuahua.

Drug violence has killed more than 4,300 people in recent years in Ciudad Juarez, which borders El Paso, Texas.

More than 23,000 people have been killed by drug violence since late 2006, when President Felipe Calderon began deploying thousands of troops and federal police to drug hot spots.

http://www.foxnews.com/world/2010/07/01/shootout-drug-migrant-trafficking-gangs-near-border-leaves-dead-598299465/

Obama’s Immigration Speech: Policy or Politics

I’ve listened to the speech three times now.

It hasn’t gotten any better or more specific for that matter.

How can the man who is the President of the Country, ignore the responsibilities he is sworn to uphold, while he race baits and divides this nation with his false claims.

For months we waited for President Obama and his Administration to actually read the Arizona Law.

We should have asked that the Administration read our existing immigration laws instead.

The Country needs “Comprehensive Immigration Reform”.

I don’t get it. What does that mean” Comprehensive Immigration Reform”.

Our country has over 15,000 pages of immigration law. There are over half a million pages of Immigration Hearing Decisions and Immigration Appellate Decisions on the books.

Back when they passed the last three “Comprehensive Immigration Reforms”, Congress actually read the laws they passed. In fact the laws were read and debated and went through the legislative process designed by our Founding Fathers and enumerated in the Constitution. The last three “Comprehensive Immigration Reforms” were not written behind closed doors in the dead of night and taken to a final vote before Congress had the chance to read and comment on the laws.

When the President says, “We need to create a path to citizenship”, what the hell is he talking about?

A path to citizenship? Doesn’t the Country already provide a “path to citizenship” for non citizens?

When the President says, “We need a viable guest worker program”, what the hell is he talking about?

Doesn’t the Country have a “Guest Worker Program”? How can this great Country not have a “Guest Worker Program”?

Isn’t the President an Attorney?

I seem to recall the MSM telling me the President was one of the smartest men in America. Wasn’t he a “lecturer” at a Law School, even if he wasn’t a Constitutional Law Professor as has been claimed.

A Path to Citizenship

The United States of America has had established rules for foreign born individuals to become citizens of this great country since the 1790’s.

The United States adopted its Constitution in 1789 and passed the first immigration laws in 1790. http://www1.umn.edu/humanrts/immigrationlaw/chapter1.html

The United States has clearly defined laws and procedures for foreign born nationals to become U.S. citizens. Those laws and rules are created by the U.S. Congress.

In this writer’s opinion the existing laws are quite detailed and have undergone several “Comprehensive Reforms”, the last such reform was completed in 1996. The one before that in 1986.

Unfortunately, certain American cities (Sanctuary Cities), States and members of the Federal Government, including President Obama and his Executive Branch, refuse to enforce the laws enumerated in either of the last two “Comprehensive Reforms”.  

http://www1.umn.edu/humanrts/immigrationlaw/chapter1.html

In 2009 over 1,000,000 foreign born nationals were granted the rights and privileges of being a U.S. Citizen. Over 1 million new citizens.  http://www.dhs.gov/xlibrary/assets/statistics/publications/natz_fr_2009.pdf

The existing path to citizenship for foreign born nations is a wide one, an average of 2,750 individuals are granted citizenship every day of every week, 12 months a year.

In addition to the 1,000,000 new citizens created every year, the United States grants the rights and privileges of being an LPR (Legal Permanent Resident) to over 1,000,000 foreign born citizens every year.

In 2009 the exact number was 1,130,818. One million, one hundred thirty thousand, eight hundred and eighteen foreign born nationals became “Legal Permanent Residents” in 2009.

http://www.dhs.gov/xlibrary/assets/statistics/publications/lpr_fr_2009.pdf

Guest Worker Programs

You’d think this great country would have a “guest worker program” wouldn’t you?

I mean, how can a country as great as ours not have a “guest worker program”?

The answer is, the United States has the largest “guest worker program” in the world. The United States allows more “foreign born” individuals to cross its borders to work than all other countries in the world combined.

That is correct: If you take the total number of “guest workers” allowed by all other Countries in the world and add them together, the United States allows nearly twice as many “guest workers” into the USA, to work every year.

In 2009 the United States allowed 36 million “guest workers” to enter the Country.

http://www.dhs.gov/xlibrary/assets/statistics/publications/ni_fr_2009.pdf

The 36 million guest workers were part of the 160 million “non-immigrant admissions” allowed into our Country last year. http://www.dhs.gov/xlibrary/assets/statistics/publications/ni_fr_2009.pdf

A total of 160 million “non-immigrant admissions” into our Country, our Country only has 300 million citizens. For every 2 citizens the United States allowed 1 non-immigrant admisssion.  http://www.dhs.gov/xlibrary/assets/statistics/publications/ni_fr_2009.pdf

Securing the Border

It is estimated that there are as many as 20,000,000  (20 million) illegal aliens currently living in the United States.

Twice in our Countries immediate past we have written and passed “Comprehensive Immigration Reforms”, once in 1986 and again in 1996. Each time the “reform” was passed the bureaucrats in Washington promised to secure our borders. They have yet to secure the borders. Amnesty has been tried and it failed, failed because the Politicians refused to secure the borders. 

Why do we have 20,000,000 (20 million) illegal aliens living in this Country? Because the Federal Government refuses to do its job, because the Federal Government has failed to crack down on and eliminate the illegal and unconstitutional “Sanctuary Cities” in our country.

The illegal aliens in this Country have one thing in common, they have violated this nations laws by either entering this Country illegally or by overstaying the time granted them under a “legal stay”, a time period the illegal aliens promised to honor and obey.

Congress and Immigration Quotas

The United States Congress sets and establishes immigration quotas and limits. The process is a complicated one and involves an analysis of the Country’s need for new citizens, the number of available jobs, whether the Country is in a recession, depression or period of sustained growth. The Congress considers the cost of immigration to American taxpayers and the dangers to the Country’s security in setting quotas and the criteria for excluding individuals from entering the United States.

The illegal aliens who have entered this Country have done so in an attempt to by-pass the Nation’s rules, regulations, quotas and screening procedures.

It has been estimated that 40% of the illegal aliens currently in the Country have been convicted of a felony or are currently wanted on outstanding felony warrants in their Country of origin. These are individuals who would be denied entry into our Country under any form of “Comprehensive Immigration Reform” past, present or future.

Comprehensive Reform – What about those waiting for legal admission

There are an approximate 17,000,000 (17 million) people waiting for legal admission into the United States, 17 million who have completed the proper paper work, undergone the necessary screening and interviews, individuals who have conformed to our laws and regulations and are awaiting their turn to become American citizens. Exactly why is it they should be denied that opportunity or be asked to wait in line while “special consideration” is given to those who are here illegally?

POLICY NOT POLITICS

Mr. President secure the borders, today. Enforce our existing laws today.

Congress has been empowered to set quotas for the number of new citizens and “guest workers” that allowed to enter this Country every year.

If you’d like to suggest “new quotas” please do so, however, do the job you are sworn to do first, secure our borders.

Mr. President we have two sets of aliens in this Country, those that have followed our laws and come to this Country legally and those that ignored and evaded our laws to get here illegally.

Mr. President this Country is our home. Stop rewarding those who disrespect this home, those who refuse to honor the rules of the “house”. When you reward “bad behavior” you get more “bad behavior”. Enforce our laws, enforce the rules of the “house” and don’t change the rules to accommodate the individuals who ignored them in the first place.

Mr. President we are a Country of laws, it is your job to enforce them. Do your job, Mr. President.  Quit trying to divide the Country for your political advantage and enforce the laws of this land.

Mr. President, the “immigration system” is not what needs to be held accounable, Mr. President you are accountable, accountable for securing our borders.

Additional Posts:

The Arizona Law – Facts from Fiction: https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/  

America’s Comprehensive Immigration Reform 1790 -2009: https://mcauleysworld.wordpress.com/2010/05/22/comprehensive-immigration-reform-the-history-of-immigration-reform-in-america-1790-to-2009/   

The Immigration Debate: Broken Borders – A Video History – The New Slavery, Human Trafficking https://mcauleysworld.wordpress.com/2010/06/09/the-immigration-debate-a-video-history-broken-borders-human-trafficking/

The Dark Side of Illegal Immigration: Sex Crimes & Illegal Immigration: https://mcauleysworld.wordpress.com/2009/03/22/the-dark-side-of-illegal-immigration-one-million-sex-crimes-committed-by-illegal-immigrants-in-the-united-states/

Obama’s Dishonesty: Crack down on employers? ICE suspends ”workplace raids”: https://mcauleysworld.wordpress.com/2009/03/19/obama-administration-suspends-enforcement-of-work-place-raids-for-illegals/  

Illegal Immigrants – Repeat Criminal Offenses:  https://mcauleysworld.wordpress.com/2009/03/22/illegals-immigrants-become-repeat-criminals-the-washington-times/

Mexican Cartels Threaten Mexico’s Democracy – The Assassination of Rodolfo Torre: https://mcauleysworld.wordpress.com/2010/06/29/the-arizona-law-mexican-drug-cartels-threaten-mexican-democracy-leading-politician-assassinated-obamas-inaction-threatens-american-security/

The Assassination of Rodolfo Torre: Mexico offers armored cars, security details for other candidates: The Assassination of Rodolfo Torre: Mexico offers armored cars, security details for other candidates

U.S. Embassy Employees In Mexico Assassinated For Providing Travel Visas To Rival Drug Cartel

Mexican Drug Cartel Kidnaps, Tortures And Murders 7 Police / Cartel Ambushes Bus – 12 Officers Killed

Mexican Murder Suspect In U.S. Consulate Killings: US Consulate Infiltrated “The State Department, meanwhile, announced new travel restrictions Friday for U.S. government employees working away from the border in Mexico and Central America. As of July 15, they and their families are barred from crossing anywhere along Texas’ border, north or south, because of safety concerns. The U.S. government continues to urge Americans to exercise extreme caution or defer unnecessary travel to certain parts of Mexico.”

Bloody Border: 21 Killed in Mexican Gang Battle Near Arizona

Shots Fired from Mexico Hit El Paso,Texas City Hall

Assistant Attorney General for the State of Chihuahua, Mexico Assassinated in Ciudad Juarez

 

The Immigration Debate: Obama’s Justice Department to Challenge Arizona Immigration Law – Obama’s Imperial Presidency

The Immigration Debate: Obama’s Imperial Presidency – Obama’s Justice Department to Challenge Arizona JAMES MADISON Immigration LawFor a detailed review of Arizona’s immigration law and the history of America’s immigration laws see: https://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/

Obama’s Justice Department has confirmed that it will file a legal challenge to Arizona’s Immigration law. A detailed review of the law can be found at the above site.

As this writer has stated in previous posts, the Administration’s challenge will fail.

THOMAS JEFFERSON

The purpose of this post is not to review the constitutionality of the Arizona law; however, I will briefly state the three reasons the Arizona law will be found to be Constitutional.

1). The Arizona law does not violate the 14th Amendment of the Constitution as it does not violate any individual’s rights to “equal protection” under the law. The Arizona Law specifically prohibits racial profiling. The law does not allow for any law enforcement officer to “stop or detain” an individual and ask for their identification. The law instructs law enforcement officers to question a “suspect” under investigation for the violation of some crime, other than an immigration crime, about their immigration status, if the suspect cannot produce identification during questioning. The law lists 11 different types of identification that will create a presumption of legal citizenship or legal residency.

http://en.wikipedia.org/wiki/Equal_Protection_Clause                                                          

http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.htm

2). The law does not violate Article 6 of the Constitution as it does not violate the Federal Government’ s right to legislate the country’s

BEN FRANKLYN

 immigration laws. The Arizona law does not “usurp” the Federal Government’s right to set immigration quotas or to issue immigration documents. The Federal Government has the exclusive right to determine how many immigrants will enter the Country every year and how many immigrants will be granted citizenship every year. The Federal Government has the exclusive right to set specific requirements for those seeking citizenship and criteria for “deporting” those who have entered the Country. The Arizona Law does not usurp any power preserved for the exclusive use of the Federal Government.

The Arizona law notes that Arizona Law enforcement officers have “concurrent jurisdiction and responsibility” with Federal Law Enforcement Officials for enforcing Federal Immigration law, something noted in the Federal Immigration statutes. Specifically, the Arizona law mandates that all Arizona State Law Enforcement officers comply with the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the last “comprehensive immigration law” passed by the U.S. Congress. The Arizona law does not usurp the Federal Government’s rights; the Arizona Law mandates state compliance with the statutes passed by the Federal Government.

I will briefly note here, that Article 6 of the Constitution reserves certain rights to the Federal Government. Article 6 reserves those rights for all three branches of the Federal Government; The Executive, the Legislative and the Judicial. The Obama Administration’s current actions are an attempt to usurp the constitutional powers granted to the legislative and judicial branches of our government. The Obama Administration believes in an “Imperial Presidency” rather than a “Constitutional Republic”.   http://en.wikipedia.org/wiki/Supremacy_Clause                                                                http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.htm       

3). When the Courts review the constitutionality of any given law, the determination of constitutionality is not based on the possibility that some individual may commit an act of “misfeasance”. 

THE DEATH OF GENERAL WARREN AT BUNKER HILL

Misfeasance is defined as: a). a wrong, actual or alleged, arising from or consisting of affirmative action. b). the wrongful performance of a normally lawful act; the wrongful and injurious exercise of lawful authority. http://dictionary.reference.com/browse/misfeasance

 Unconstitutional is defined as: unauthorized by or inconsistent with the constitution. http://dictionary.reference.com/browse/unconstitutional 

 Example: The speed limit in front of my home is 25 miles per hour. There is nothing “unconstitutional” about that law or setting a 25 mile an hour speed limit. If a law enforcement officer pulls over a black driver, because they are black and not because they were speeding, that officer has committed an act of racial profiling. Racial profiling is an act of malfeasance which is punishable in both the criminal and civil courts, however, the speed limit law is constitutional and there is no question that the speed limit law is constitutional. None!

Multiple sections of the Arizona Law prohibit racial profiling.  The Arizona Law is Constitutional. If any Arizona Law Enforcement Officer commits an act of “racial profiling” today, under either the new law or other existing Arizona Laws, that officer is guilty of “malfeasance” and has committed both a civil and criminal offense. Racial profiling is illegal in Arizona today, the new Arizona Law does not change that fact, and it confirms it. https://mcauleysworld.wordpress.com/2010/05/25/the-immigration-debate-mr-president-apologize-to-the-state-of-arizona-misfeasance-is-not-unconstitutional-obama-race-baiter-in-chief/

Obama’s Imperial Presidency

The Obama Administration knows the Arizona Law to be Constitutional.

The Obama Administration’s challenge to the law is, however, rooted in a significant constitutional question. The Obama Administration is attempting to subvert our Constitution and create an Imperial Presidency.

Imperial Presidency vs. Constitutional Republic

The United States is a Constitutional Republic. A Republic is defined as “a state in which the supreme power rests in the body of citizens entitled to vote and is exercised by representatives chosen directly or indirectly by them.” http://dictionary.reference.com/browse/Republic  

BOSTON TEA APRTY

In our Constitutional Republic we select our representatives and they govern with our consent. In our Constitutional Republic our Federal Government is divided into three equal branches, Executive, Legislative and the Judiciary. Each of the branches has its own rights and its own duties or responsibilities. The first such responsibility, a “duty” shared by every member of every branch of our Government, is the “duty” to “protect and defend our Constitution”. Our Constitution also states that any right not specifically granted to the Federal Government is reserved for the governments of the individual states.

Imperial is defined as:  like, or pertaining to an empire, emperor or empress. http://dictionary.reference.com/browse/Imperial

An emperor is defined as the male sovereign or supreme ruler of an empire: as in the emperors of Rome. http://dictionary.reference.com/browse/Emperor

Emperors were autocratic rulers: An autocracy is a form of government in which one person possesses unlimited power.  An autocrat is a person (as in an Emperor) ruling with unlimited authority. http://en.wikipedia.org/wiki/Autocracy

A single ruler with unlimited power and unlimited authority. Power and authority taken from the people not granted by the people.

Under Imperial Rule all rights and civil liberties belong to the Emperor. Our Republic is founded on the belief that basic rights belong to the citizens of the Republic and are “inalienable”: that these basic rights cannot be transferred to someone else or taken away by the Government.  

CIVIL WAR - PICKETT'S CHARGE AT GETTYSBERG

Obama’s Attempt to Circumvent the Constitution and Create an Imperial Presidency

Under our Constitutional Republic the right to create and pass laws rests with the Legislative Branches. Our Supreme Court has ruled that the U.S. Congress has the exclusive right to pass laws that establish immigration quotas or limits and that all “immigration quotas and limitations” established by Congress are binding upon the Executive Branch and the individual states. The Supreme Court has also ruled that the individual states have “concurrent jurisdiction” to enforce our Federal immigration laws. To enforce the Federal immigration laws, not to rewrite them. The Arizona law does not attempt to rewrite the laws passed by Congress, in fact, the Arizona law calls for the enforcement of the 1996 Federal Immigration Law – Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

President Obama and various members of the Obama Administration believe in the concept of “open borders”. The

 Obama Administration supports an “amnesty” for illegal aliens.

WORLD WAR I DOUGH BOYS

An “open borders policy” means the elimination of immigration quotas. Under an “open borders policy”: any migrant, from any country, would be free to enter and live in the United States once they crossed our border.

This post will not debate whether we should adopt an “open border policy” or grant yet an additional “amnesty”, the third “amnesty” in the last 30 years, before we secure our borders.

This post will note the Obama Administration’s attempt to usurp power granted constitutionally to the Legislative and Judicial branches and create an Imperial Presidency.

When the Obama Administration states that they want “comprehensive immigration reform” the Administration means they want an “open borders policy” with an “amnesty” for those currently within our borders illegally.

The overwhelming majority of American people are diametrically opposed to such a “open border policy” or the implementation of an additional “amnesty”.

Under our Constitutional Republic, implementing such a change in our “existing laws” would need to be initiated by our Congress not the Obama Administration or the Executive Branch. 

A proposal to adopt either an “open borders policy” or an “amnesty program” would be soundly defeated in both Houses of the U.S. Congress.

The Obama Administration wants to implement two immigration policies but lacks the Constitutional power to do so, two policies strongly opposed by the legislative branch and a majority of Americans.

Prevented constitutionally from unilaterally implementing these changes the Obama Administration has adopted policies and ignored existing laws in the Administration’s attempt to implement a “de facto” open border and amnesty program.  (“de facto”: actually existing, without lawful authority).  http://dictionary.reference.com/browse/de+facto )  

The Obama Administration is refusing to enforce our existing immigration laws. The Administration is willfully failing to secure our borders. The Administration is refusing to send appropriate resources to secure our borders and has even failed to deploy the 1200 National Guard Troops promised to our Border States. In adopting these actions the Obama Administration has moved to usurp (to use without authority or right) powers granted to the Congress under the Constitution. The Obama Administration cannot get an “amnesty program” or an “open borders policy” passed through Congress as the Constitution requires, so the Obama Administration is adopting extra constitutional (not authorized by or based on a constitution; beyond the provisions of a constitution) measures to achieve policies it cannot obtain constitutionally.  http://dictionary.reference.com/browse/extraconstitutional 

WORLD WAR II - D DAY: GI JOES OMAHA BEACH

The Obama Administration must challenge the Arizona Law, not because the Administration believes the law to be unconstitutional, but because the Administration fears that other States will pass similar laws. The Obama Administration must challenge the Arizona law because the Obama Administrations’ attempts to implement “de facto” amnesty and open borders policies will be thwarted by the States when the States move to enforce the laws passed constitutionally by Congress.

The Obama Administration views itself as an Imperial

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 Presidency – with President Obama as the omnipotent autocrat – possessing unlimited power, unlimited authority and unrestrained by Constitutional limitations. An autocrat free to ignore his oath to “protect and defend the constitution”, free to selectively enforce or ignore the laws of the land as he chooses, free to implement his policies without the advise or consent of the Congress or the American people.

Prologue:

Ancient Rome started as a Republic.  Like the United States, the Roman Republic was founded after the overthrow of a monarchy. The Roman Republic was based on a Constitution which honored the principles of separation of powers, of a need for a system of checks and balances within the Government.   http://en.wikipedia.org/wiki/Roman_Republic

The end of the Roman Republic was brought about by the Roman leaders who “transitioned” Rome, leaders who “fundamentally transformed” Rome from a Republic to an Imperial State. A state ruled by autocratic Emperors. The Emperors were men who subverted the Roman Constitution for their own power, for their own political gain. The Emperor’s usurped the powers granted to the Roman Senate and Legislative Assembly and after consolidating their power proclaimed themselves perpetual dictators (Julius Caesar http://en.wikipedia.org/wiki/Roman_Republic ),  Supreme Majesty (Augustus ), Imperator Caesar Maximus Naughtius Pretentious Stroppius Homosexius Nero Augustus (Nero,  http://uncyclopedia.wikia.com/wiki/Nero ) and Caligula (Gaius Julius Caesar Augustus Germanicus, http://www.roman-emperors.org/nero.htm).

THE KOREAN WAR - MARINES LANDING AT INCHON

Dictator: a person exercising absolute power, a ruler who has absolute, unrestricted control in a government. http://dictionary.reference.com/browse/dictator

My generation was very familiar with a saying (it is actually a book title), “The Rise and Fall of the Roman Empire”. Rome rose as a Republic and Rome fell because it was “fundamentally transformed” into an autocratic Empire ruled by despots. Despot: a king or other ruler with absolute, unlimited power; autocrat. any tyrant or oppressor. http://dictionary.reference.com/browse/despot

It is ironic that America’s coming battle, a battle that will determine whether the Country will remain a Constitutional Republic or be “fundamentally transformed” into an Imperial Presidency, will be fought over the issue of illegal immigration, most particularly, illegal immigration into the State of Arizona. The President’s true objective, an extra constitutional usurpation of powers granted to Congress, is being disguised as a phony “civil rights issue”.  A false issue the President is exploiting to garner political support among his Hispanic and far left base. The President is guilty of “race baiting” as he moves to esatblish his Imperial Presidency. http://www.ask.com/bar?q=race+baiting&page=1&qsrc=2891&dm=all&ab=2&u=http%3A%2F%2Fwww.washingtontimes.com%2Fnews%2F2010%2Fmay%2F03%2Fobamas-race-baiting%2F&sg=aqQrV3cX93bwZwf8zn%2BMF2wfMlOuCjIOuGwZHEDm8Vk%3D&tsp=1277047957762The Hispanic portion of his base has very close ties to our southern neighbor, Mexico.

Mexico, the Country that twice had to fight to escape from the despotic rule of Emperors. (In 1821 when Mexico declared independence from Spain (Mexican Independence Day) and in 1867 at the end of The Second Mexican Empire). 
Mexico fought again, for a third time, to free the Country from another autocratic ruler (Porfirio Diaz) during the Mexican Revolution (1910 – 1920: http://en.wikipedia.org/wiki/Mexican_Revolution ).

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How can the Country of Mexico, a Country that has tasted the violence of autocratic rule 3 times in the last 150 years and fought its Revolution less than 100 years ago, support or applaud the “fundamental transformation” of America into that which they, the Mexican people, want to flee. Mexico has rejected Imperial rule three times, yet Mexico would support the “fundamental transformation” of the America Republic into an Imperial Presidency.                                       

Is the purpose of coming to America rooted in a desire to share in the American Dream, to embrace the Republic for which it stands or is the goal to “fundamentally transform” America, transform the Republic into another Empire, an Empire ruled by an Imperial Presidency, an Imperial Presidency where one man or woman rules with unlimited authority and unlimited power.

Remember these two things: 1). There has never been a “compassionate dictator” or “despot”, and 2). Dictators are neither liberal nor conservative; they are first and always, dictators.

F15E IRAQ 1991

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