The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 4)

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

Read Part 2 here:  https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-2/

Read Part 3 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-3/

Pursuant to 8 U.S.C. § 1373(c), DHS is required to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status . . . for any purpose authorized by law, by providing the requested verification or status information.” DHS has, in its discretion, set up LESC, which is administered by ICE and “serves as a national enforcement operations center that 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.” (Pl.’s Mot. at 6-7 (citing Palmatier Decl. ¶¶ 3-6).) Mr. Palmatier states in his Declaration that LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack, or exploitation.” (Palmatier Decl. ¶ 4.)  (Page 18, lines 1 to 12)

Yes, I would invite you to review the history of the LESC and visit the LESC website. http://www.ice.gov/partners/lesc/index.htm

Chapter 8, § 1373(c), Obligation to respond to inquiries:

The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

http://www.law.cornell.edu/uscode/search/display.html?terms=1373&url=/uscode/html/uscode08/usc_sec_08_00001373—-000-.html

“shall… any individual … for any purpose authorized by law … by providing the requested information”

THIRD FALSE STATEMENT: DHS, IN ITS DISCRETION SET UP THE LESC – LESC MANDATED BY CONGRESS

We should note the additional false statement above, that, “DHS has, in its discretion, set up LESC”. The DHS was instructed by Congress to establish the LESC and provided with the funding to do so. This action was “mandated” by Congress, there was no “discretion” involved. The issue of “discretion” in the Executive Branch flows in this direction, the DHS will exist as long as the United States Congress allows it to exist, the DHS exists at the sole discretion of Congress, the DHS is a Congressional creation.

 Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities. (Page 18, lines 13 to 16)

Again, the significance of argument is what? This is not a constitutionally recognized argument of “preemption”. The allegations presented by the DOJ do not state a claim of preemption recognized by our Federal Courts nor does this claim state a cause of action for which relief maybe granted by a Federal Court.

The Federal Courts cannot forgive an Executive Agency from a responsibility delegated to it by Congress.

The DOJ may want to seek protection from the Federal Courts because Attorney General Eric Holder, Secretary of Homeland Security Janet Napolitano and Mr. Palmatier at  the LESC are incompetent and cannot properly allocate the resources provided by the Congress to their Executive Agencies. The fact that Attorney General Holder and Secretary Napolitano are not qualified to hold their jobs does not mean that a request from the State of Arizona or any other State for that matter is unconstitutional. An otherwise constitutional request cannot become “unconstitutional” because the Executive Agencies involved cannot allocate their resources to successfully complete those tasks specifically assigned to the Agencies by Congress.

For these reasons, the United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established. (Page 18, Lines 17- 24).

Simply put, the Judge is wrong. This finding is, as has already been demonstrated, not supported by existing law, the doctrine of “federal preemption” or any analysis of Congressional intent. In fact, the Judge’s contradicts the specific Congressional intent specifically stated in the Immigration Statutes and the creation of NSEERS and LESC.

I’m have no doubt that the points presented in this summary will be stressed by the Supreme Court when the Judge Bolton’s decision is reversed.  

FOOT NOTE 7 The problems associated with burdening federal resources are even more acute when considered in light of other state laws similar to this provision. (See Pl.’s Mot. at 31-32 (citing to a newspaper article stating that at least 18 other states are considering parallellegislation).); see also North Dakota v. United States, 495 U.S. 423, 458-59 (1990) (Brennan, (Page 18, Lines 26 – 28)

 b. Immigration Status Determination During Lawful Stops, Detentions, or Arrests

Next, the Court turns to the first sentence of Section 2(B): For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or . . . law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town of this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. A.R.S. § 11-1051(B). The United States makes essentially the same arguments about this requirement. First, the United States advances that it imposes a burden on lawfully-present aliens not permitted by Hines, where the Supreme Court sought to protect the personal liberties of lawfully-present aliens to leave them free from the possibility of intrusive police practices that might affect international relations and generate disloyalty. (Pl.’s Mot. at 26 (citing Hines, 312 U.S. at 74).) Second, the United States argues that this requirement impermissibly burdens and redirects federal resources away from federally-established priorities. (Id.) The United States’ arguments regarding burdening of federal resources are identical to those outlined above and will not be restated. However, the United States makes several arguments with respect to the burden on lawfully-present aliens that are specific to or slightly different in the context of the first sentence of Section 2(B). First, the United States argues that this provision “necessarily places lawfully present aliens (and even U.S. citizens) in continual jeopardy of having to demonstrate their lawful status to non-federal officials.” (Id. at 26.) The United States further asserts that there are numerous categories of lawfully-present aliens “who will not have readily available documentation to demonstrate that fact,” including foreign visitors from Visa Waiver Program (Page 18, Lines 1 to 23)

The Court notes, “The United States makes essentially the same arguments” and “it imposes a burden on lawfully-present Aliens not permitted by Hines”. For the same reasons previously enumerated, the Court is wrong. The Court’s finding does not comport with the facts of this case, the law of the land or the intent of Congress. The Hines case, again, was a case involving State registration of aliens who had not been “arrested”. The DOJ has failed to produce any proof of an additional burden as was the case in Hines, there is no constitutional prohibition against confirming the “immigration status” of those under arrest … and the U.S. Supreme Court has already ruled that checking an arrested aliens NCIC record does not create an undue burden … the Judge’s second finding confirms, beyond all doubt, that this Judicial opinion is rooted in politics not law …

countries, individuals who have applied for asylum but not yet received an adjudication, people with temporary protected status, U and T non-immigrant visa applicants, or people who have self-petitioned for relief under the Violence Against Women Act. (Id. at 26-27.) Also, the United States points out that United States citizens are not required to carry identification, and some citizens might not have easy access to a form of identification that would satisfy the requirement of Section 2(B).9  (Page 19, Lines 1 to 6)

FALSE STATEMENT 4: “who will not have readily available documentation to demonstrate that fact,”…  including foreign visitors from Visa Waiver Program… The Visa Waiver program does not supersede any other section of United States Immigration Law.

First I want to urge the reader to note Foot Note 8 below, where I’ve added the specifics of the Visa Waiver Program. Title 8, Chapter 12, § 1187.

I find it very hard to express my complete devastation at the lack of candor and outright dishonesty exhibited by both Judge Bolton and our Department of Justice. These are not “errors” in reading the law, errors based on stupidity or incompetence; these are now, in my opinion, instances of dishonesty.     

It has been quite a while since I worked in the legal field on a daily basis, but I have written many, many briefs and read thousands of legal opinions. Never before have I come across a judicial opinion with 4 false statements made by a Judge. There are frequent disagreements concerning the interpretation of specific laws, however, the specific language or wording of a statute is easily determined. A statute’s wording is written in bold face on the page …. I’ve inserted the relevant statutes into this post for you to read and provided links for you to verify the accuracy of my claims … you  can decide for yourself. 

Unscrupulous Attorneys will misquote and miss-site cases, but I have never seen this from a Judge before never mind an Attorney General of the United States. The statement above is a false statement and I believe it to be an intentionally false statement. No matter what “program” an alien seeks to be admitted under, that alien must first register and once registered is required by Federal Law to carry their documentation … 

Foreign visitors requesting admission through the Visa Waiver Program must still register with NSEERS and/or the DHS. An individual seeking entry under the Visa Waiver Program is required to comply with all other “entry” and registration requirements. An individual asking inclusion in the “Visa Waiver Program” is asking for exemption from the requirement to “qualify” for a visa under our system of immigration quotas. Gaining an exemption from the Visa Quota System, does not exempt an individual from “registering” as an alien.  

(The fact that the Holder DOJ suggests that admission under the Visa Waiver Program exempts foreign nationals from registering with the U.S. Government should raise all sorts of red flags in Congress).

Title 8, Chapter 12, 1304; regulates alien registration procedures in the United States.

Title 8, Chapter 12, § 1304: Forms for registration and fingerprinting

 (a) Preparation; contents

The Attorney General and the Secretary of State jointly are authorized and directed to prepare forms for the registration of aliens under section 1301 of this title, and the Attorney General is authorized and directed to prepare forms for the registration and fingerprinting of aliens under section 1302 of this title. Such forms shall contain inquiries with respect to

(1) the date and place of entry of the alien into the United States;

(2) activities in which he has been and intends to be engaged;

(3) the length of time he expects to remain in the United States;

(4) the police and criminal record, if any, of such alien; and

(5) such additional matters as may be prescribed.

(b) Confidential nature

All registration and fingerprint records made under the provisions of this subchapter shall be confidential, and shall be made available only

(1) pursuant to section 1357 (f)(2) of this title, and

(2) to such persons or agencies as may be designated by the Attorney General.

(c) Information under oath

Every person required to apply for the registration of himself or another under this subchapter shall submit under oath the information required for such registration. Any person authorized under regulations issued by the Attorney General to register aliens under this subchapter shall be authorized to administer oaths for such purpose.

(d) Certificate of alien registration or alien receipt card

Every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this chapter shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations issued by the Attorney General.

(e) Personal possession of registration or receipt card; penalties

Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

http://www.law.cornell.edu/uscode/search/display.html?terms=1304&url=/uscode/html/uscode08/usc_sec_08_00001304—-000-.html

The United States contends that the impact on lawfully-present aliens of the requirement that law enforcement officials, where practicable, check the immigration status of a person lawfully stopped, detained, or arrested where there is reasonable suspicion that the person is an alien and is unlawfully present will be exacerbated by several factors. (Id. at 28-29.) First, the United States suggests that the impact on lawfully-present aliens is enhanced because this requirement applies to stops for even very minor, non-criminal violations of state law, including jaywalking, failing to have a dog on a leash, or riding a bicycle on the sidewalk. (Id. at 28.) Also, the United States argues that the impact will be increased because other provisions in S.B. 1070 put pressure on law enforcement agencies and officials to enforce the immigration laws vigorously.10 (Id. at 29.) Hines cautions against imposing burdens on lawfully-present aliens such as those described above. See 312 U.S. at 73-74. Legal residents will certainly be swept up by this requirement, particularly when the impacts of the provisions pressuring law enforcement (Page 20, Lines 7 to 19).

Foot Note 8: The Visa Waiver Program permits visitors from certain countries to enter the United States without a visa, so long as various requirements are met. See, e.g., 8 U.S.C. § 1187; 8 C.F.R.§,§ 217.1-217.7. (Page 20, Lines 21 to 23).

Again, the Court acted dishonestly it discussing the Visa Waiver Program. The Visa Waiver Program does not eliminate an alien’s duty to register with trhe Federal Government and caryy their registration documents with them at all times. 

Title 8, Chapter 12, § 1187. Visa waiver program for certain visitors

 

(1) Seeking entry as tourist for 90 days or less

The alien is applying for admission during the program as a nonimmigrant visitor (described in section 1101 (a)(15)(B) of this title) for a period not exceeding 90 days.

2) National of program country

The alien is a national of, and presents a passport issued by, a country which

(A) extends (or agrees to extend), either on its own or in conjunction with one or more other countries that are described in subparagraph (B) and that have established with it a common area for immigration admissions, reciprocal privileges to citizens and nationals of the United States

3) Machine readable passport

(A) In general

Except as provided in subparagraph (B), on or after October 1, 2003, the alien at the time of application for admission is in possession of a valid unexpired machine-readable passport that satisfies the internationally accepted standard for machine readability.

(4) Executes immigration forms

The alien before the time of such admission completes such immigration form as the Attorney General shall establish.

(6) Not a safety threat

The alien has been determined not to represent a threat to the welfare, health, safety, or security of the United States.

(7) No previous violation

If the alien previously was admitted without a visa under this section, the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant

http://www.law.cornell.edu/uscode/search/display.html?terms=1187&url=/uscode/html/uscode08/usc_sec_08_00001187—-000-.html

An individual admitted under the Visa Waiver Program must still register their entry with the Government, the alien must possess a passport (a legally recognized form of ID under the Arizona Law). They must undergo an NCIC and NSEERS check and complete the legally required screening process established by CONGRESS and Administered by the Executive Agencies. The “burdensome check” imagined by the Executive Agencies and agreed to by the Courts involves nothing more than an electronic inquiry of the data systems chartered by Congress and maintained at taxpayer expense to respond to just such an inquiry.

agencies to enforce immigration laws are considered. See A.R.S. § 11-1051(A), (H). Certain categories of people with transitional status and foreign visitors from countries that are part of the Visa Waiver Program will not have readily available documentation of their authorization to remain in the United States, thus potentially subjecting them to arrest or detention, in addition to the burden of “the possibility of inquisitorial practices and police surveillance.” Hines, 312 U.S. at 74. In Hines, the Supreme Court emphasized the important federal responsibility to maintain international relationships, for the protection of American citizens abroad as well as to ensure uniform national foreign policy. Id. at 62-66; see also Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (“We recognize . . . the Nation’s need to ‘speak with one voice’ in immigration matters.”). The United States asserts, and the Court agrees, that “the federal government has long rejected a system by which aliens’ papers are routinely demanded and checked.” (Pl.’s Mot. at 26.)11 The Court finds that this requirement imposes an unacceptable burden on lawfully-present aliens. With respect to the United States’ arguments regarding the burden on and impediment of federal resources as they relate to the first sentence of Section 2(B), the Court’s conclusions mirror those stated above regarding the second sentence of Section 2(B). Federal resources will be taxed and diverted from federal enforcement priorities as a result of the increase in requests for immigration status determination that will flow from Arizona if law enforcement officials are required to verify immigration status whenever, during the course of a lawful stop, detention, or arrest, the law enforcement official has reasonable suspicion of unlawful presence in the United States.12 In combination with the impermissible burden this provision will place on lawfully-present aliens, the burden on federal resources and priorities also leads (Page 21, Lines 1 to 22).

 The Court continues to make clearly erroneous rulings, rulings not support by the facts, the law or Congressional intent.

Specifically the Court states, in error, that; “transitional status and foreign visitors from countries that are part of the Visa Waiver Program will not have readily available documentation”. As previously outlined. Individuals in the Visa waiver program are required to register, provide a passport, carry documentation and keep their “registration documents” on their person. Any implication to the contrary is dishonest. Even should the individual loose or have all of their documentation stolen, the person can be identified if they deal with the local authorities in an honest manner and identify themselves. Every alien who enters this Country legally creates a “data record” that the LESC can access.

The Court again returns to discuss cases that are not on point. The Court notes that, “a system by which aliens’ papers are routinely demanded and checked” are disfavored. The Courts, in fact, do not “disfavor” Law Enforcement authorities completing immigration checks or individuals taken into “custody”, there is not a single instance of a Court “overruling” an “immigration check” completed on a person who has been taken “into custody”. The status check is, technically, completed by the Executive Agency that receives the inquiry. The “detaining” or “investigating officer” requests a “status determination”, as is specifically outlined in Federal Immigration law.

to an inference of preemption. Therefore, for the purposes of preliminary injunction analysis, the Court concludes that the United States has demonstrated a likelihood of success on itschallenge to the first sentence of Section 2(B). Section 2(B) in its entirety is likely preempted by federal law.  (Page 22, lines 1 to 4)

3. Section 3: A.R.S. § 13-1509

Section 3 states that “a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 [U.S.C. §§] 1304(e) or 1306(a).” A.R.S.§ 13-1509(A).13 The penalties for violation of Section 3, a class 1 misdemeanor, are amaximum fine of $100 and a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent violation. A.R.S. § 13-1509(H). Section 3 also limits violators’ eligibility for suspension of sentence, probation, pardon, and commutation of a sentence and requires violators to pay jail costs. A.R.S. § 13-1509(D), (E). Section 3 does not apply to “a person who maintains authorization from the federal government to remain in the United States.” A.R.S. § 13-1509(F). Essentially, Section 3 makes it a state crime to violate federal registration laws and provides for state prosecutions and penalties for violations of the federal registration law. The United States argues that Section 3 is preempted because it interferes with comprehensive federal alien registration law, seeks to criminalize unlawful presence, and will result in the harassment of aliens. (Pl.’s Mot. at 34-39.) Arizona asserts that Section 3 neither conflicts with federal law nor regulates in a federally occupied field. (Defs.’ Resp. at 21-22.) “[T]he power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation[;] . . . whatever power (Page 22, Lines 1 to 22).

 

To be continued:

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

Read Part 2 here:  https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-2/

Read Part 3 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-3/

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 2)

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 2)

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

DHS has also established the Law Enforcement Support Center (“LESC”), which is administered by Immigration and Customs Enforcement (“ICE”) and serves as a national enforcement information center, answering queries from state and local officials regarding immigration status. (Page 7, lines 7 to 14).

We will revisit the Law Enforcement Support Center later in this post.

At this point I will make two comments;

1). The “DHS has also established the Law Enforcement Support Center”, the LESC was established by the DHS at the express instruction of Congress.

The DHS didn’t just decide to set up a Law Enforcement Support Center on its own volition, Congress instructed the DHS to do so. Congress then appropriated the funds for the DHS to proceed.

2). The Judge makes no mention of why Congress “ordered” the DHS to set up the LESC. The Judge does not address the Congressional intent behind the LESC, the reason or intent of Congress in appropriating funds for the LESC. The Judge failed to do this despite the fact that the Federal Appellate and U.S. Supreme Court have directed her to do exactly that.

Judicial opinions concerning Federal Immigration Law are to be guided by the intent of Congress, not the desires of the Executive or the whimsy of the Executive Agencies. 

B. Overview of S.B. 1070

1. Section 1

Section 1 of S.B. 1070 states that “the intent of [S.B. 1070] is to make attrition through enforcement the public policy of all state and local government agencies in Arizona” and that “[t]he provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Section 1 also states that “there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona.”

2. Section 2

Section 2 of S.B. 1070 adds A.R.S. § 11-1051. Section 2 contains twelve separate subsections. Subsection 2(A) prohibits Arizona officials, agencies and political subdivisions from limiting or restricting the enforcement of federal immigration laws. A.R.S. § 11- 1051(A). Subsection 2(B) requires officers to make a reasonable attempt, when practicable, (Page 7, Line 16 to 28)

to determine an individual’s immigration status during any lawful stop, detention, or arrest where reasonable suspicion exists that the person is unlawfully present in the United States. Id. § 11-1051(B). Subsection 2(B) also requires that all persons who are arrested have their immigration status verified prior to release. Id. Subsections 2(B) and 2(E) provide the process for verifying immigration status and list documents that create a presumption of lawful presence. Id. § 11-1051(B), (E). Mandatory stops for the purpose of immigration status verification are not required or authorized by Subsection 2(B). Subsection 2(C) requires notification of ICE or Customs and Border Protection whenever an unlawfully present alien is discharged or assessed a monetary obligation. Id. § 11-1051(C). Subsections 2(D) and (F) permit law enforcement to securely transport unlawfully present aliens and send, receive, and exchange information related to immigration status. Id. § 11-1051(D), (F). (At page 8, lines 1 to 11).

In addition, Subsection 2(H) permits legal residents of Arizona to bring actions in state court “to challenge any official or agency of [Arizona] that adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.” Id. § 11-1051(H). Subsections 2(I) and (J) address the civil penalties arising from such civil suits, and Subsection 2(K) provides that law enforcement officers are indemnified against reasonable costs and expenses incurred by the officer in connection with any suit initiated under this Section unless the officer is found to have acted in bad faith. Id. § 11-1051(I)-(K). (At page 8, lines 12 to 19).

3. Section 3

Section 3 of S.B. 1070 adds A.R.S. § 13-1509, which provides that “a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of [8 U.S.C. §§] 1304(e) or 1306(a),” federal statutes that require aliens to carry documentation of registration and penalize the willful failure to register. A.R.S. § 13-1509(A). Violation of Section 3 is a class 1 misdemeanor and results in a maximum fine of $100 and a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent violation. Id. § 13-1509(H). Section 3 limits a violator’s eligibility for a suspended sentence, probation, pardon, and commutation of a sentence and requires violators to pay jail costs. Id. (At page 8, lines 19 to 28)

§ 13-1509(D), (E). In the enforcement of Section 3, immigration status may be determined by a law enforcement officer authorized by the federal government or pursuant to 8 U.S.C. § 1373(c). Id. § 13-1509(B). Pursuant to Subsection 3(C), law enforcement officers are not permitted to consider race, color, or national origin in the enforcement of Section 3. Id. § 13- 1509(C). Finally, Section 3 does not apply to “a person who maintains authorization from the federal government to remain in the United States.” Id. § 13-1509(F). (Page 9, lines 1 to 6)

4. Section 4

In Section 4 of S.B. 1070, the Arizona Legislature revised A.R.S. § 13-2319 by adding a provision that permits officers enforcing Arizona’s human smuggling statute to stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe that the person is in violation of any civil traffic law. Id. § 13-2319(E). Section 4 does not make any other changes or additions to Arizona’s human smuggling statute, A.R.S. § 13-2319. (Page 9, lines 7 to 12)

5. Section 5

Section 5 of S.B. 1070 adds two provisions to the Arizona Criminal Code, A.R.S. §§ 13-2928 and 13-2929. A.R.S. § 13-2928(A) provides that it is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway and is impeding traffic to attempt to hire a person for work at another location. Id. § 13-2928(A). Similarly, A.R.S. § 13-2928(B) provides that it is unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic. Id. § 13-2928(B). Finally, A.R.S. § 13-2928(C) provides that it is unlawful “for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” Id. § 13-2928(C). Violation of A.R.S. § 13-2928 is a class 1 misdemeanor. Id. § 13-2928(F). Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which provides that it is unlawful for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, (At Page 9, lines 12 to 28). shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. Id. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States. Id. Violation of A.R.S. § 13-2929 is a class 1 misdemeanor. Id. § 13-2929(F). (At Page 10, lines 1 to 4)

6. Section 6

Section 6 of S.B. 1070 amends A.R.S. § 13-3883 to permit an officer to arrest a person without a warrant if the officer has probable cause to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States.”Id. § 13-3883(A)(5). (At page 10, lines 5 to 9)

 7. Sections 7-13

Sections 7, 8, and 9 amend Arizona’s law imposing sanctions on employers who hire unlawfully present aliens. See A.R.S. §§ 23-212, 23-212.01, 23-214. Section 10 amends A.R.S. § 28-3511 to allow for the immobilization or impoundment of vehicles used in the transporting and concealing of unlawfully present aliens where the driver of the vehicle knew or recklessly disregarded the fact that the alien was unlawfully present. Section 11 creates the “gang and immigration intelligence team enforcement mission fund” for civil penalties paid pursuant to Subsection 2(I). Finally, Section 12 provides for the severance of any unconstitutional provisions, and Section 13 provides a short title for the enactment. (Page 10, lines 10 to 18)

C. Procedural Posture

The United States filed its Complaint challenging the constitutionality of S.B. 1070 on July 6, 2010, naming as Defendants the State of Arizona and Governor Brewer in her official capacity (collectively, “Arizona”). On the same day, it also filed a Motion requesting that the Court preliminarily enjoin Arizona from enforcing S.B. 1070 until the Court can make a final determination as to its constitutionality. (Doc. 6, Pl.’s Lodged Proposed Mot. for Prelim. Inj.) (Page 10, Lines 19 to 24).

The United States argues principally that the power to regulate immigration is vested exclusively with the federal government, and the provisions of S.B. 1070 are therefore preempted by federal law. The Court held a Hearing on Plaintiff’s Motion on July 22, 2010(Page 10, Lines 25 to 28)

The Executive Agencies presenting these arguments are not exclusively empowered to do anything …. Congress has the “exclusive power” to create and write our Immigration Laws, those laws that regulate who can legally enter the Country … the Executive Agencies who brought this lawsuit share “concurrent” responsibility for enforcement of the Immigration Laws.

When the above paragraph, “The United States argues principally that the power to regulate immigration is vested exclusively with the federal government” it is the Department of Justice, not the Congress, who is presenting the argument. (“the Hearing”). S.B. 1070 has an effective date of July 29, 2010. The Court now considers the United States’ Motion for Preliminary Injunction. (Page 11, Lines 1 and 2)

III. LEGAL STANDARDS AND ANALYSIS

A. General Legal Standards

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008) (citations omitted). The United States primarily asserts that the statutory provisions contained in S.B. 1070 are preempted by federal law. The Supremacy Clause of the United States Constitution makes federal law “the supreme law of the land.” U.S. Const. art. VI, cl. 2. The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers.4 While holding that the “[p]ower to regulate immigration is unquestionably exclusively a federal power,” the Supreme Court concluded that not every state enactment “which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised.De Canas v. Bica, 424 U.S. 351, 354-355 (1976). (Page 11, Lines 3 to 17)

The following paragraphs are very important, as will be seen in the next few pages of this opinion. In the following paragraphs the Judge reviews the topic of “Federal preemption”, the basis of the Department of Justice Lawsuit. For the DOJ to prevail in this suit, it must present evidence to support its “allegations” that the Arizona Law violates one of the three standards for preemption. Let me state that again; the Department of Justice lawsuit cannot prevail unless the Department of Justice can establish a violation of one of three stated elements of the doctrine of  Federal preemption.

Federal preemption can be either express or implied. Chicanos Por La Causa v. Napolitano (Chicanos Por La Causa I), 544 F.3d 976, 982 (9th Cir. 2008), cert. granted, 78 U.S.L.W. 3065, 78 U.S.L.W. 3754, 78 U.S.L.W. 3762 (U.S. June 28, 2010) (No. 09-115).

There are two types of implied preemption: field preemption and conflict preemption. Id. Field preemption occurs “where ‘the depth and breadth of a congressional scheme . . .occupies the legislative field.’” Id. (quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (Page 11, lines 17 to 23)

Once again, it has been held that the “Congressional Branch of the Federal Government” has the exclusive right to regulate Immigration, not the Executive Branch …

Preemption: There are three and only three different types of preemption.

1).  Express Preemption

Where Congress, not the Executive Branch clearly and unequivocally states that the area of law is reserved for the Federal Government. Express preemption occurs only when a federal statute explicitly confirms Congress’s intention to preempt state law. English v. General Elec. Co., 496 U.S. 72, 78-79 (1990). “If a federal law contains an express pre-emption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress’ displacement of state law still remains.” Altria Group v. Good, 555 U.S. ___ (2008), Docket Number: 07-562.

Implied preemption can occur in two ways: field preemption or conflict preemption. Massachusetts Ass’n of HMOs v. Ruthardt, 194 F.3d 176, 179 (1st Cir. 1999).

 2. Conflict preemption

Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824). Conflict arises when it is impossible to comply with both the state and federal regulations, or when the state law interposes an obstacle to the achievement of Congress’s discernible objectives. Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992).

3. 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 “occupy the field” in that area of the law, i.e. to warrant an inference that Congress did not intend the states to supplement it. Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992). See also Rice v. Santa Fe Elevator Corp. For example, the courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959); Machinists v. Wisconsin Emp. Rel. Commission, 427 U.S. 132, 140-48 (1976).

A Federal Claim of “preemption” must satisfy one of these three sets of criteria.

Foot Note 4

 A variety of enumerated powers implicate the federal government’s long-recognized immigration power, including the Commerce Clause, the Naturalization Clause, and the Migration and Importation Clause. See U.S. Const. art. I, § 8, cl. 3-4; art. I, § 9, cl. 1; see also Fong Yue Ting v. United States, 149 U.S. 698, 706 (1893); Chae Chan Ping v. United States, 130 U.S. 581, 603-04 (1889).

(Page 11, lines 25 to 28).

 Implicate?  What and where?

Again the Immigration Laws of the United States are created by the Congressional Branch of the Federal Government, not the Executive Branch.  When one reads “Federal Government’s Immigration Power” – that power rests with Congress. Any power enumerated in United States Immigration Law has been so enumerated by the Congress of the United States not the Executive Branch. Again, the United States Supreme Court has instructed the lower Federal Courts to look to the intent of Congress when they interpret our Federal Immigration Statutes.

541 (2001)). Conflict preemption describes a situation in which “compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (internal quotations and citations omitted). An actual, as opposed to hypothetical or potential, conflict must exist for conflict preemption to apply. Id. (Page 12, lines 1 to 5).

as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”. The intent of Congress. Note that the Court has now defined “conflict preemption”.

B. Likelihood of Success on the Merits

The United States must first demonstrate a likelihood of success on the merits. Winter, 129 S. Ct. at 374. The United States challenges S.B. 1070 on its face, before it takes effect on July 29, 2010. (Pl.’s Mot. at 7.) “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). The Supreme Court later observed, in considering a facial challenge, “[S]ome Members of the Court have criticized the Salerno formulation, [but] all agree that a facial challenge must fail where a statute has a ‘plainly legitimate sweep.’” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quoting Washington v. Glucksberg, 521 U.S. 702, 739-40 & n.7 (1997) (Stevens, J., concurring in judgments)). In deciding a facial challenge, courts “must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.” Id. at 449-50 (quoting United States v. Raines, 362 U.S. 17, 22 (1960)). (Page 12, lines 6 to 19)

1. Preemption of Overall Statutory Scheme

As discussed above, S.B. 1070 contains several provisions adding to and amending Arizona law. While the United States has requested that the Court enjoin S.B. 1070 in its entirety, it specifically challenges only select provisions of S.B. 1070. (See Pl.’s Mot. at 12 n.8 (noting that “the instant motion does not seek to enjoin” Sections 7-9 of S.B. 1070 and that Sections 11-13 “are administrative provisions which are not the subject of this dispute”).) The United States also argues that the overall statutory scheme of S.B. 1070 is preempted because it attempts to set immigration policy at the state level and interferes and conflicts with federal(Page 12, lines 20 to 28).

Again, the “Federal” preemption argument. I’m looking forward to reading the specifics of how the Arizona Law is preempted, not by the imaginings of the Obama Administration and its Executive Agencies, but how the Arizona Law is in conflict with one of the three specific types of preemption. The Administrative Agencies must present proof that the Arizona Law violates one of the three enumerated types of “preemption”. I’m looking forward to reading the Court’s analysis of the Congressional intent…                

 immigration law, foreign relations, and foreign policy. (Id. at 12-25.) Section 1 of S.B. 1070 declares a unified, state-wide public policy, providing: The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. S.B. 1070 § 1. The United States urges the Court to enjoin S.B. 1070 as an integrated statutory enactment with interlocking provisions. (Pl.’s Mot. at 12-25.) The United States asserts that Section 1 animates and “infuses” the operative sections of the law. (Hr’g Tr. 13:4-14:5.) “[W]hen the constitutionality of a state statute is challenged, principles of state law guide the severability analysis and [courts] should strike down only those provisions which are inseparable from the invalid provisions.” Costco Wholesale Corp. v. Maleng, 522 F.3d 874, 886 (9th Cir. 2008) (citing Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 556-57 (9th Cir. 2004)). “A court should not declare an entire statute unconstitutional if the constitutional portions can be severed from those which are unconstitutional.” State v. Ramsey, 831 P.2d 408, 413 (Ariz. Ct. App. 1992) (citing State v. Prentiss, 786 P.2d 932, 937 (Ariz. 1989)). Under Arizona law, it is well settled . . . that where the valid parts of a statute are effective and enforceable standing alone and independent of those portions declared unconstitutional, the court will not disturb the valid law if the valid and invalid portions are not so intimately connected as to raise the presumption the legislature would not have enacted one without the other, and the invalid portion was not the inducement of the act. Selective Life Ins. Co. v. Equitable Life Assurance Soc’y of the U.S., 422 P.2d 710, 715 (Ariz. 1967) (citing McCune v. City of Phx., 317 P.2d 537, 542 (Ariz. 1957)). In determining whether potentially unconstitutional provisions of S.B. 1070 may be severed from the remainder of the enactment, the primary concern is legislative intent. See id. at 715-16 (citing City of Mesa v. Killingsworth, 394 P.2d 410, 413 (Ariz. 1964)). Where a statute contains a severability provision, Arizona courts generally attempt to give effect to the severability clause. Id. at 715. (Page 13, lines 1 to 38)

Section 12(A) of S.B. 1070 provides for the severability of S.B. 1070’s provisions, stating that if any provision of the Act “is held invalid, the invalidity does not affect other provisions . . . that can be given effect without the invalid provision.” Arizona’s Legislature intended the provisions of S.B. 1070 to be severable in order to preserve the constitutionalprovisions of the Act. As a result, where the provisions of S.B. 1070 are “effective and enforceable standing alone and independent” of any unconstitutional provisions and the valid portions are not so “intimately connected” to any invalid provision as to raise the presumption that the Arizona Legislature would not have enacted the valid provisions without the invalid provisions, S.B. 1070’s provisions are severable. See Selective Life Ins., 422 P.2d at 715.

This writer will defer comments concerning how the Judge’s willfully “over looked” opportunities to sever and keep portions of the Arizona Law, as she was required to do …

While Section 1 of S.B. 1070 provides a statement of the Act’s intent and purpose, it does not create a single and unified statutory scheme incapable of careful provision by provision analysis. The Court cannot enjoin a purpose; the Arizona Legislature is free to express its viewpoint and intention as it wishes, and Section 1 has no operative function. However, this is not to say that Section 1 is irrelevant. The expression of the Legislature’s intent provides context and backdrop for the functional enactments of S.B. 1070, and the Court considers it in this capacity as it analyzes the other provisions of the law. S.B. 1070 will not be enjoined in its entirety. The Court will not ignore the obligation to preserve the constitutional provisions of a state legislative enactment or S.B. 1070’s severability clause. The Court thus evaluates the constitutionality of the individual provisions of S.B. 1070 challenged by the United States. (Page 14, lines 1 through 20).

We are approximately 1/3 of the way through the legal opinion and the Judge has not offered a legal finding or conclusion.

The Judge has made two false statements,

1). “Unlawful presence in the United States is not a federal crime” and

2). That an illegal alien needs to have been “convicted” in a criminal proceeding and subsequently deported before their unauthorized “re-entry” could be considered a crime”.

In the section immediately below, the Judge begins her consideration of the Arizona Law, in preparation for her first ruling.

The issue that will be addressed is this: The Arizona Legislature stated an intention that those individuals who have been “arrested” have their immigration status determined before the person is released and that any law enforcement officer presented with one of 11 different types of identification, should presume that the individual presenting the identification is a lawful resident of the United States.

 A.R.S. § 11-1051(B). Section 2(B) also states that if an officer is presented with one of the following forms of identification, the officer is to presume that the person is not an unauthorized alien: (1) a valid Arizona driver license or identification license; (2) a valid tribal enrollment card or other form of tribal identification; or (3) a valid United States federal, state, or local form of identification, provided that the issuing entity requires proof of citizenship before issuance. Id.

The United States argues that this section is preempted because (1) it will result in the harassment of lawfully present aliens and (2) will burden federal resources and impede federal enforcement and policy priorities. (Pl.’s Mot. at 25-32.) (Page 15, lines 1 to 8).

 The Judge’s opinion in this section is in artfully worded. It is actually quite amusing. It is a shame that the subject matter is so serious …

 The problem with the wording in the Judge’s opinion is occasioned by the language of the Department of Justice’s pleading.

Let us help the Judge do her job correctly.

Or let us pretend we are the Judge’s Constitutional Law Professor and this is the Judge’s final exam in her first year Constitutional Law Class.

Step One: Examine the pleading. What is the Department of Justice alleging?

“The United States (The DOJ) argues that this section is preempted because

1). It will result in the harassment of lawfully present aliens, and

2). Will burden federal resources and impede federal enforcement and policy priorities.

Step 2: Determine if a “preemption argument” has been made or determine if the pleading “fails on its face”, because it fails to state a claim enforcebale under the Federal doctrine of preemption.

There are three and only three enumerated types of “preemption”. Does the lawsuit state a claim under one of three enumerated “preemptions”?

Claim 1: “It will result in the harassment of lawfully present aliens,”

Which of the three “preemptions” does this claim fall under?

A). Express preemption: Has the Congress expressly stated that the Federal Government has an exclusive right to the “harassment of lawfully present aliens”. How funny …. The Government has not stated a cause of action of express preemption …

B). Conflict Preemption: Does the DOJ allege that “compliance with both federal and state regulations is a physical impossibility”… as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  An actual, as opposed to hypothetical or potential conflict….

No,  The DOJ has failed to state a cause of action under the theory “conflict preemption”.

C). Field preemption: Has the Congress indicated that the States should be denied the opportunity to supplement the Federal Government’s harassment of “lawfully present aliens”.

Again, we are conducting the analysis that Judge Bolton was required to complete prior to rendering her decision. A claim of harassment does not fall within the purview of the Federal preemption doctrine. A claim of harassment may serve as the basis of a “civil rights claim”, however, it is not an appropriate topic for consideration under the “preemption doctrine”.

We are not determining whether the Arizona law will, in fact, result in the harassment of “lawfully present aliens”, because that is not what is required at this point in time.

We are, as the Judge should have, evaluating whether the DOJ’s claim, assuming the claims are true, meet the requirements of one of the three classifications for preemption.

The answer is an unequivocal NO. The claim, as stated, is not one subject to the Federal preemption doctrine.   

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

Read Part 3 here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-3/

Read Part 4 Here: https://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-4/  

DOJ Stalls Implementation of MOVE – Military and Overseas Voter Empowerment Act. Troops in field may be improperly denied their right to vote

UPDATE #2: Posted 08/26/2010 – According to Real Clear Politics, 3 of the 10 States requesting “MOVE Act Waivers”, to authorize the State’s non-compliance with the law, have political races that at present are projected as “to close to call”. Those 3 states are Wisconsin, Colorado and Maryland. Remember that past U.S. Senate races in Minnesota and Wisconsin have been decided by a handful of votes … in Minnesota we have the most recent and infamous stolen election to the U.S. Senate … and in Wisoconsin more votes were cast in Milwaukee then there were registered voters … Contact your elected officials and demand action … See if you can question your elected officials about this outrage at their public campaign appearances …  http://www.usa.gov/Contact/Elected.shtml      

Task Force Finds More Ballots Cast Than Registered Voters  –  

“MILWAUKEE — A task force that was investigating possible voter fraud in Milwaukee released its findings Tuesday. U.S. Attorney Steven Biskupic said investigators found more than 4,500 ballots were cast in Milwaukee than registered voters in the Nov. 2 election. But he said they have not found any pattern of conspiracy to commit fraud. Investigators also found more than 100 instances of suspected double-voting and more than 200 felons who voted improperly. No one has been charged, but the investigation continues.”  http://www.wisn.com/politics/4472834/detail.html 

I’d like to point out that we never have a 100% voter turnout – during the record breaking turnout that elected Barrack Obama only 63% of registered voters cast ballots:

http://en.wikipedia.org/wiki/Voter_turnout / http://www.infoplease.com/ipa/A0781453.html#axzz0xkU5FT7Y

Why is this significant? In Miwaukee 11 people voted for every 10 registered voters. (Roughly 45,000 registered voters with 50,000  ballots cast). The article sited above notes that their was no “evidence of intentional fraud”. This is simply laughable … With 60 years of U.S. voting statistics to work with, it should have been readily apparent that there is no other conclusion to reach but that massive voter fraud took place. There is zero probability that Milwaukee suddenly achieved a 100% voter turnout when no community in the United States has ever been able to do so … not one, ever… not even in the record year of 2008 …. In that record breaking year when Barrack Obama was elected we had a 60% voter turnout, or 6 in 10 registered voters turned out to cast ballots … so lets assume that Milwaukee had a 60 percent turn out … 6 out of 10 voters … Then how do we explain the other 5 votes, remember that for every 10 registered voters 11 votes were cast … a total of 11 votes cast, 6 by registered voters … 5 votes unaccounted for …. for every 6 legal votes in Milwaukee there were 5 illegal votes … that doesn’t happen without an organized and widespread effort … this isn’t a small statistical blimp .. this represents a massive an intentional voter fraud … the statistics say so … not any type of political bias … there was very nearly one illegal vote cast for every legal vote cast in Milwaukee … Contact your elected Representative. Please.    

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

DOJ Accused of Stalling on MOVE Act for Voters in Military

The Department of Justice is ignoring a new law aimed at protecting the right of American soldiers to vote, according to two former DOJ attorneys who say states are being encouraged to use waivers to bypass the new federal Military and Overseas Voter Empowerment (MOVE) Act.

The MOVE Act, enacted last October, ensures that servicemen and women serving overseas have ample time to get in their absentee ballots. The result of the DOJ’s alleged inaction in enforcing the act, say Eric Eversole and J. Christian Adams — both former litigation attorneys for the DOJ’s Voting Section — could be that thousands of soldiers’ ballots will arrive too late to be counted.

“It is an absolute shame that the section appears to be spending more time finding ways to avoid the MOVE Act, rather than finding ways to ensure that military voters will have their votes counted,” said Eversole, director of the Military Voter Protection Project, a new organization devoted to ensuring military voting rights. “The Voting Section seems to have forgotten that it has an obligation to enforce federal law, not to find and raise arguments for states to avoid these laws.” 

Adams, a conservative blogger (www.electionlawcenter.com) who gained national attention when he testified against his former employer after it dropped its case against the New Black Panther Party, called the DOJ’s handling of the MOVE Act akin to “keystone cops enforcement.”

“I do know that they have adopted positions or attempted to adopt positions to waivers that prove they aren’t interested in aggressively enforcing the law,” Adams told FoxNews.com. “They shouldn’t be going to meeting with state election officials and telling them they don’t like to litigate cases and telling them that the waiver requirements are ambiguous.”

The MOVE act requires states to send absentee ballots to overseas military troops 45 days before an election, but a state can apply for a waiver if it can prove a specific “undue hardship” in enforcing it.

Sen. John Cornyn,R-Texas – who co-sponsored MOVE – wrote a letter to U.S. Attorney General Eric Holder on July 26 saying he is concerned that the Department of Justice is allowing states to opt out of the new law. Click here to read the letter.

“Military voters have been disenfranchised for decades, and last year Congress acted,” Cornyn said in a statement to FoxNews.com. “But according to recent information, the Department of Justice has expressed reluctance to protect the civil rights of military voters under the new law. All our men and women in uniform deserve a chance to vote this November, and the Obama administration bears responsibility for ensuring that they have it.

“For far too long in this country, we have failed to adequately protect the right of our troops and their families to participate in our democratic process. The MOVE Act was supposed to end this sad history. The right to participate in democratic elections is fundamental to the American experience.”

In his letter to Holder, Cornyn cites minutes from the 2010 winter meeting of the National Association of Secretaries of State (NASS), during which Rebecca Wertz, deputy chief of the DOJ’s voting section, told state election officials that the legislative language regarding waivers is not completely clear. Wertz described the provisions of the law as “fairly general” and “somewhat of an open question as to what type of information” a state needs to submit in order to for their waiver application to be granted. She said it was also unclear whether waivers are for one election only, or if they apply to future elections.

According to the meeting’s minutes, obtained by FoxNews.com, Wertz also said “that the DOJ is working to find effective ways to disseminate any information guidance that can help states with different questions about MOVE interpretation. She invited questions and dialogue from states, and said that litigation is always the last resort.”

Cornyn wrote, “If these are the positions of the DOJ, then they fly in the face of the clear statutory language, undermine the provisions in question, and jeopardize the voting rights of our men and women in uniform.”

He said the language of the law makes it clear that there is no ambiguity when it comes to states’ eligibility for being granted a waiver, and that the statute does not leave room for the Justice Department to decide whether to enforce its requirements. 

“If a state is not in compliance with the statute, there is little room for “dialogue” or negotiation, and the Voting Section should take immediate steps to enforce the law and safeguard military and overseas voting rights, including pursuing litigation whenever necessary,” Cornyn wrote. “The comments by the DOJ official, as reported in the NASS minutes, appear to ignore Congress’ clear legislative language and could facilitate the disenfranchisement of our men and women in uniform.” 

Cornyn, who discussed Eversole’s allegations at a meeting with Defense Department officials last week, called for Holder to immediately provide guidelines to state election officials; to ensure that states are required to abide by the law; and to provide Cornyn himself with a state-by-state breakdown of which states have already applied for waivers and which are expected to be in noncompliance with MOVE in the November midterm election. He also called for full transparency in the waiver process.

A spokeswoman for the Department of Justice’s Civil Rights Division, Xochitl Hinojosa, declined to comment, other than to say Cornyn’s letter is being reviewed.

FoxNews.com obtained waiver applications submitted by Washington and Hawaii. 

Defense Department spokeswoman Major April Cunningham told FoxNews.com that New York, Delaware, Maryland, Alaska and Virgin Islands had also applied for waivers. (Cornyn’s co-sponsor for the MOVE Act was New York Sen. Chuck Schumer, a Democrat.)

“All waivers are currently under review. The Defense Department must respond, under the law, after consultation with the Department of Justice, no later than 65 days before the election, which is August 29, 2010,” said Robert Carey, director of the Federal Voting Assistance Program. 

“The voting section has taken this haphazard approach to enforcing military voting law,” said Eversole. “The voting section is asserting itself into statute to make a statute that’s not ambiguous, ambiguous. Can you imagine any other agency giving prospective defendants advice like this?”

“Everybody in Washington knows it doesn’t matter how good the law is; it comes down to who’s enforcing it,” said Adams. “This stuff should be transparent and online for the citizens of these states to comment on, the fact that it’s being done behind closed doors tells you everything you need to know about how it will affect the voters.”

Adams and Eversole separately pointed out that the DOJ’s website lacks any mention of the MOVE Act. In fact, the section on military voting includes the outdated and nonbinding 30-day recommendation for sending out ballots. There is no mention of the the current 45-day mandate. 

But the DOJ’s online voting section includes a detailed section devoted to helping felons learn how get their voting rights back.

“It is just offensive to most Americans that we can send soldiers to the front lines but they can’t vote,” said Eversole. “This is an issue that tugs at the heartstrings of America and people can’t understand why we can’t get that right. This is something we have to get right.  We should be fighting as hard for their rights as they’re fighting for ours.”

http://www.foxnews.com/politics/2010/07/28/exclusive-doj-stalls-voter-registration-law-military/

Voter Fraud In the 2008 Democratic Presidential Primary: “We Will Not Be Silenced” – A film by GiGi Gaston

“We will not be silenced” portrays a systemic attack on the Democratic Party’s primary process in the 2008 Presidential election.

Please visit the website here: http://wewillnotbesilenced2008.com/video/index.htm

Democracy is based on the premise of one person, one vote.  

Don’t surrender your rigtht to live in a Democracy.

This is how you can stop this from happening again:

1). Find out if your State is a “caucus state”. 

2). Contact the County officials in your Party.

3). Find out who your “Credential Commitee Chairperson” is ….. meet them and make up your mind if you believe they are honest … This is the person that has responsibility for maintaining the integrity of the elections in your community … the “Credentials Committee” is responsible for applying your Party’s Rules for nominating your Party’s Candidates for election …..

The videos above are discussing voter fraud in the Primary process …. of improperly denying people the right to vote in the community where they live … while others are allowed to vote improperly in communities where they do not belong … 

This “voter fraud” is detected and prevented at the local level, when individuals are first admitted into the “Caucus” site or building. “Sign in” sheets and the production of “identification” is required in every state … the rules or “crieria”to participate in a Primary is established by the Party or the State – not by the supporters of any particular candidates …

4). Discuss our upcoming primary elections with your neighbors and consider volunteering … who is better qualified to make sure that only your neighbors are allowed to “vote” in your community …

5). It has been reported that bus loads of individuals arrived in Iowa for that State’s Caucuses, something that had never happened at any time in Iowa’s past ….

Why would members of a local community arrange “bus transit” to attend a local “Caucus” in their community. When this writer lived in a “Caucus State”, he walked to the Causcus, just as I now walk to vote in my primary election. Why would my neighbors and I rent a bus to go vote on election day?  I wonder why all those Iowan’s rented buses with Chicago license plates to drive them to the Causcuses in their local neigbhborhood … I guess all the local buses were previously spoken for …

6). Contact your elected Representives and demand that this activity be investigated: http://www.usa.gov/Contact/Elected.shtml

Get involved … take back our Democracy …

Why isn’t the Department of Justice investigating this activity?

More on the DOJ and the New Black Panther Voting Scandal

It took the mainstream media nearly a year to catch up. Jennifer Rubin began reporting on the New Black Panther case in August 2009, hit it again in December 2009, and then provided a tick-tock of the scandal last month. The mainstream media studiously avoided any coverage of the scandal. Now that one of the Justice Department trial team members, J. Christian Adams, has resigned and come forward to do press interviews and testify before the U.S. Commission on Civil Rights. others are waking up.

http://www.weeklystandard.com/blogs/more-doj-and-new-black-panther-voting-scandal

The Immigration Debate: Attorney General Holder Threatens Second Suit Against Arizona

The Immigration Debate: Attorney General Holder Threatens Second Suit Against Arizona

WASHINGTON (AP) — The Justice Department hasn’t ruled out filing a second lawsuit challenging Arizona’s immigration law if evidence shows racial profiling at work, Attorney General Eric Holder says.

The Obama administration sued Arizona last week, arguing that the state is impinging on federal responsibilities for dealing with immigration. The state law requires police, while enforcing other laws, to question a person’s immigration status if there’s reasonable suspicion the person is in the country illegally. It also requires legal immigrants to carry their immigration documents.

The suit didn’t deal with concerns about racial profiling so that it could focus on the most serious problem with the law, Holder said in an interview broadcast Sunday on CBS’ “Face the Nation.” In six months or a year, his department might look into the law’s impact on racial profiling, he said. [Previously, that was all AG Holder and President Obama could talk about, “racial discrimination” and “profiling”, while they both played the “race card”, you remember in the weeks before either had even read the Arizona law.]

“If that was the case, we would have the tools and we would bring suit on that basis,” Holder said.

Arizona Gov. Jan Brewer, who defends the state immigration law as constitutional, said she believes federal officials would have included racial profiling in the suit if they thought it was an issue.

“Why would they have to hesitate, after all the comments they made, and all the outrage that they made against the bill in regards to racial profiling, that it didn’t show up?” Brewer told The Associated Press during a break in the National Governors Association meeting in Boston.

Brewer said she is confident that the state law can be enforced without racial profiling, which she acknowledged is against state and federal law.

“The bottom line is that people in the Southwest, particularly Arizona, we love our diversity. It’s in our DNA. We are almost, I believe, colorblind,” she said. “It’s just not in us. We’ve grown up, we’ve lived next door, we work together, we eat together. I mean, it’s so different than the issues they always want to relate to the South, you know, in regards to the civil rights issues down there.”

McAuley’s World Comments:

The Immigration Debate: DOJ (Department of Justice) Declares Arizona Immigration Law Legal

Almost 8 years to the day before Arizona Governor Jan Brewer signed Arizona’s “Immigration Law” into effect, the United States Department of Justice issued a memo stating that Arizona’s Law is legal.

On April 23, 2002 the DOJ (Department of Justice) considered and rejected the very arguments presented by the Obama Administration through its DOJ by Attorney General Eric Holder in its lawsuit against the State of Arizona.

The “findings” of the DOJ are “memorialized” in the following memo:

http://www.aclu.org/files/FilesPDFs/ACF27DA.pdf

The DOJ lawsuit filed in June 2010: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

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

For a full discussion of Arizona’s Immigration Law see:

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

https://mcauleysworld.wordpress.com/2010/07/06/the-immigration-debate-doj-files-suit-against-arizona-why-arizona-will-win/

Following the attacks on the World Trade Towers on 9-11-2001, the United States Congress fundamentally altered the manner in which the United States enforces its Immigration Laws.

Congress enacted many laws after 9-11, laws intended to bring the full force of the States into the National effort to secure our borders and enforce our immigration laws.

By doing this Congress added the nearly 800,000 State and Local Law Enforcement Officers to the less than 20,000 Border Patrol Agents and Immigration and Customers Enforcement Agents employed by the Federal Government …. increasing the total number of law enforcement officers “on the job” by 4000%.

The lawsuit filed by the Obama Administration and Attorney General Eric Holder’s Department of Justice has nothing to do with “racial profiling” or “preemption” ….

The lawsuit is nothing more than the political tool being used by the Obama Administration to reverse the security protocols enacted by Congress after 9-11, after the publication of the 9-11 Commission Report.

This lawsuit is nothing more than an ideological extension of the Obama Administration’s policies that call for the closing of Gitmo, the removal of enemy combatants from Military Tribunals to Civilian Courts, the refusal to acknowledge a “war on terror” or “radical jihadists” and the replacement of the term “terrorist attack” with “man made events”.

The Department of Justice’s ideology which was manifested in the decision to “dismiss the charges” against a radical New Black Panther who was guilty of “voter intimidation”, to dismiss the charges after a “default judgment” had been obtained from the Court.

An Administration that refuses to “respect” and “honor” the decisions of our Federal Courts and Constitutional processes, an Administration that has taken the issue of “drilling moratoriums” to the Federal Courts twice and lost on both occasions and rather than follow our Constitutionally prescribed method of filing an “appeal”, the Obama Administration threatens additional “moratoriums” or “Executive Orders” to block drilling and ruin the economy of the Gulf …..

See Holder’s Latest Here: Holder Raises Question On Sept. 11 Death Penalty –

http://www.idahostatesman.com/2010/07/11/1263431/holder-raises-question-on-sept.html

https://mcauleysworld.wordpress.com/2010/07/11/the-immigration-debate-doj-depratment-of-justice-declares-arizona-immigration-law-legal/

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