Obama’s War Against the States

From Arizona to Alabama & onward:

16 Countries Join Fed’s Legal Assault as “Friends of the Court”

Jon Moseley
Executive Director, American Border Control
remarks at the 12th annual Freedom Leadership Conference, 11/11/11

What is the status of the Second American Revolution in the States taking back responsibility from the Federal government?

Personally I believe that it is no coincidence that the number of unemployed in America is approximately the same as the estimated number of illegal aliens trespassing in this country.  Have you noticed in the news that whenever immigration authorities round up a group of illegal workers at a factory, the next day there is a line of American citizens applying for those same jobs?

As an attorney I have helped people from other lands come to the United States legally and gain citizenship.  I have personally sponsored a smart, hard-working friend from Eastern Europe for a green card, taking financial responsibility.  I have also sat across the table from debtors who lost their small businesses in painting and home repair because of competition from unlicensed and illegal businesses run by illegal aliens.  That is, the home repair businesses are unlicensed and often untrained and poor quality.

Illegal immigration usually involves other crimes, mainly identity theft.  Some illegal aliens steal the credit history and identity of one American while they steal some other American’s job.

But are we even a country if we do not control who comes and goes in the United States?  Our government’s first responsibility is to its own citizens.  We have built a strong economy.  Other countries need to do the hard work to make their economies strong also.  Other governments are responsible to take care of their citizens, not to leave their citizens on our doorstep.  Rather than facing the urgent need to reform their own dysfunctional systems, those countries send their citizens here.

We’ve done the hard work of building a system with some minimal integrity and an economy that works.  But the leaders of other countries just don’t want to change.   Yet it is their responsibility to take care of their own citizens.  I believe that those citizens need to demand change and reform in their own homelands, for all of their people, not to break our laws and steal our jobs.

First, in my part 1, there is a tremendous movement for reform of immigration laws underway in America.  Over a year ago, we had a symposium like this one focusing on the tough anti-immigration law passed by Arizona.   In American Border Control’s “Arizona Day” we highlighted both the Arizona law and also the wave of copy-cat State laws already then sweeping the country.

We also unveiled the model legislation of American Border Control, which we have available.  This was filled with ideas for provisions that State legislatures could pass that would be likely to survive court challenges.  I know I spent many, many dozens of hours pouring over the court decisions and developing ideas for what States can do that can’t be stopped in the courts.  One of the main themes of ABC’s model legislation was to focus on areas of traditional State regulation, such as business licenses and taxes.   We will never know where people got their ideas, but I do see some of our suggestions being now picked up in the newest State legislation.  For example, Alabama forbids businesses from taking a tax deduction for the wages paid to illegal aliens, which gives Alabama a hook to investigate and enforce immigration status.  That was one of my ideas that we widely distributed a year ago.

This week we have a news update on the Arizona law.  As you probably know we have liberal Administrations in Washington, both Democrat and Republican, at war with the States, litigating against the States in court.

Yesterday, November 10, 2011, the Obama Justice Department asked the US Supreme Court to NOT hear an appeal of Arizona’s anti-immigration law.  What that means is that the rogue and liberal 9th Circuit Court of Appeals blocked many parts of the Arizona law in lawsuits brought by the Federal government against Arizona.

So,  Arizona Gov. Jan Brewer has asked the U.S. Supreme Court to review the case on an expedited basis, arguing that the issues are of compelling, nationwide importance.

But the Obama Justice Department does not want the U.S. Supreme Court to hear the case.   On November 10, the Justice Department wrote to the U.S. Supreme Court:  “That several states have recently adopted new laws in this important area is not a sufficient reason for this court to grant review.”

One of the Arizona law’s provisions that were blocked requires that police, while enforcing other laws, question a person’s immigration status if officers suspect they are in the country illegally. In April, a three-judge panel of the 9th Circuit U.S. Court of Appeals in San Francisco upheld a federal judge’s ruling halting enforcement of that and other key provisions in the Arizona law.

So we have the Obama Administration, led by the nation’s chief law enforcement officer, asking the U.S. Supreme Court NOT to get it right, to NOT look at whether the 9th Circuit was right or wrong.  And unfortunately, Republican officials have not been a whole lot better on this issue, either.

Should American courts listen to foreign countries about whether to enforce America’s immigration laws?   On November 7, 2011, the Obama Justice Department sued South Carolina in an effort to stop the state’s tough new immigration law signed by Nikki Haley in 2010.

The South Carolina law, which borrowed some portions from Arizona’s measure, would require that law enforcement officers, upon “reasonable suspicion” that a person might be in the country illegally, check his or her immigration status following a traffic stop for some other violation of South Carolina law.  However, officers couldn’t stop or arrest a person merely on that suspicion.  Officers also couldn’t hold someone simply for a possible immigration violation and would have to call federal officials if they believe the person is in the country illegally.

The Justice Department sued the state in U.S. District Court in Charleston.  South Carolina’s law “clearly conflicts” with the policies and priorities adopted by the Federal government and “therefore cannot stand,” federal officials said in announcing the lawsuit.

Federal officials argue in the complaint that “the Constitution and the federal immigration laws do not permit the development of a patchwork of disparate state and local immigration policies throughout the country.”

However, we might notice some dishonest hypocrisy:  States trying to solve this problem write legislation to cooperate closely with Federal authorities.  But then the Obama Administration argues that this places a burden on the Federal government to respond to requests for help determining who is an illegal alien.

But incredibly 16 Latin American and Caribbean have asked the Federal Court to participate in the lawsuit against South Carolina.  So 17 foreign countries, including Mexico that is already involved, want to join in suing one of the States of the United States of America – and our courts are allowing it.

In the filing, the countries said they hoped to join Mexico’s amicus curiae, or friend of the court, brief to express their concerns and underscore the importance of halting South Carolina’s immigration law.

The governments said in a court filing they have “a substantial and compelling interest” in ensuring their respective bilateral diplomatic relations with the United States are “transparent, consistent and reliable, and not frustrated by the actions of individual U.S. states; in this case South Carolina.”

The governments were identified in a court filing as Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru and Uruguay.

But the Second American Revolution can’t be stopped.  On June 2, 2011, the Alabama Legislature enacted HB 56.  Alabama Governor Robert Bentley signed HB 56 into law on June 9, 2011.  Most of the provisions were scheduled by the law to go into effect on September 1, 2011, my birthday.

But the Obama Justice Department filed a lawsuit challenging the law as unconstitutional.  The US Department of Justice argues that only the Federal Government can regulate immigration issues.   To be sure, the US Constitution requires that Federal laws are the supreme law of the land.  So Federal law pre-empts State law.

However, it has always been clearly-established law that both a State and the Congress can pass laws on the same topic as long as the State law does not contradict the Federal law.

So, for example, in Virginia courts we see many misdemeanor criminal cases of possession of marijuana, even though Federal law also regulates the same topic.   Every week in Northern Virginia’s State courts there are cases like that enforcing State laws that duplicate Federal laws.  I know some people think that shouldn’t be regulated, but the point is that no one questions the power of States to regulate on the same topics as the Federal government.  Whether you want them to or not is a different story.

The Congress can set a national minimum wage at $5.35 per hour, but New York City can set a higher minimum wage like $7.00 per hour.  It is long-established Constitutional law that a State can enact regulation that is more strict than Federal law.  So a $7.00 per hour minimum wage that is higher than the national minimum wage is allowed even though the State or City law is different from the Federal law.

But the U.S. Department of Justice takes the position that State laws are too disruptive of the carefully-balanced immigration scheme created by Congress in the Immigration and Naturalization Act.   They claim that Congress “OCCUPIED THE FIELD” and that any State regulation would disrupt the Federal law.

On August 24, 2011, the district court held a full day hearing on the motions for preliminary injunction.    Alabama’s law was upheld by U.S. District Federal Judge Sharon Lovelace Blackburn in early October 2011, which shocked the political class.

On October 14, 2011, the 11th Circuit Court of Appeals blocked some parts of the Alabama law from taking effect.  However, the 11th Circuit Court of Appeals also stunned the political world by allowing almost all of the Alabama law to take effect immediately.  That means that Alabama now has the strictest laws against illegal immigration in the nation – actually being enforced.

Alabama Attorney General Luther Strange wrote in the court pleadings:  “Does it really cause harm to the United States when a state informs the federal government of persons who are in violation of Federal law, and then leaves it to the Federal government to decide whether to initiate deportation proceedings?  Of course not.”

The case is U.S. v. Alabama.  In the Circuit Court the case number is 11-14535-CC.  In the District Court the number is 5:11-cv-2484-SLB.   The Court of Appeals announced it would hear oral arguments on the constitutional questions quickly, perhaps as early as December.  Remember that we are only at the preliminary injunction stage to block the law from going into effect.

Section 10 was temporarily blocked by an injunction of the 11th Circuit Court of Appeals while the Court of Appeals considers the case in full.  This is a topic that has already been litigated before in Federal courts many decades ago.

Section 10 of the law makes it a criminal misdemeanor under Alabama law for “willful failure to complete or carry an alien registration document.”  People don’t know that carrying such a registration card is already required under Federal law, in Section 1304(e) of the Immigration and Naturalization Act.  But it is also a violation of Alabama law to violate the Federal law.

However, Section 10(b) prohibits Alabama officers from making their own determination.  Alabama officers must defer to Federal agents to make the determination whether an alien is lawfully present in the United States.

Section 11(a) was not blocked and is currently being enforced in Alabama.

Section 11(a) makes it a misdemeanor crime under Alabama law for an unauthorized alien to apply for, solicit, or perform work – which is already prohibited by Federal law.  So Alabama will have the opportunity to actually enforce the same rule that the Federal government has, but Washington is not enforcing it.  Having the same law under both Alabama law and Federal law means that Alabama can actually enforce the law that Washington is not enforcing.

Section 12 was not blocked and was allowed to go into effect by the Court of Appeals and is now being enforced in Alabama.

Section 12 requires a law enforcement officer upon making “any lawful stop, detention or arrest” and upon reasonable suspicion that the person is unlawfully present in the U.S. to make a reasonable attempt to determine citizenship or immigration status.

Holding a valid driver’s license or other similar identification is automatic evidence that the person is lawfully present.  Even an expired driver’s license may automatically remove a person from any suspicion, because they did qualify for a license.  The Alabama officer may not consider race, color, or national origin.  If a determination cannot be made within 24 hours, the person must be released.

Section 13 was not blocked and was allowed to go into effect by the Court of Appeals and is now being enforced in Alabama.

Section 13 makes it unlawful for a person to (1) conceal, harbor, or shield an alien unlawfully present in the United States or attempt or conspire to do so, or (2) encourage an unlawful alien to come to the State of Alabama, or (3) transport or attempt or conspire to transport an unlawful alien.

Section 16 was not blocked and was allowed to go into effect by the Court of Appeals and is now being enforced in Alabama.

Section 16 forbids employers from claiming as a business tax deduction any wages paid to an unauthorized alien.

Section 17 was not blocked and was allowed to go into effect by the Court of Appeals and is now being enforced in Alabama.

Section 17 gives a private plaintiff the right to sue an employer who gives a job to an illegal alien instead of a U.S. citizen or legal immigrant.

Section 18 was not blocked and was allowed to go into effect by the Court of Appeals and is now being enforced in Alabama.

Section 18 changes the handling of a driver stopped without a driver’s license to require that the officer determine the citizenship or immigration status of the person found driving without a driver’s license.  Those illegally present will be treated as a flight risk and detained for transfer to Federal immigration authorities.  Because driving without a license is a crime under Alabama State law, Alabama can actually detain a person until their citizenship is determined.   Arresting and holding people merely for suspicion of being in the USA illegally is one of the big constitutional debates and challenges.  Here, they have actually committed a crime, driving without a license.  So they can be held in detention.

Section 27 was not blocked and was allowed to go into effect by the Court of Appeals and is now being enforced in Alabama.

Section 27 bars Alabama courts from enforcing contracts entered into with an illegal alien — if the hiring party had a “direct or constructive” knowledge that the person was in the country unlawfully.   The Alabama law provides an exception for hotel lodging, food, and medical care.   The determination of whether one is an illegal alien is made by the Federal immigration authorities.

This may sound more radical than it should.  Even now in Virginia, and for many years, a Virginia court is barred from enforcing a contract on behalf of a foreign company doing business in Virginia unless the company registers with the Virginia State Corporation Commission.   There are some limitations on that, but there is already the idea that you cannot enforce a contract in Virginia if a company is not lawfully present in Virginia.

Section 28 was temporarily blocked by an injunction of the 11th Circuit Court of Appeals while the Court of Appeals considers the case in full.

Section 28 requires every public school in Alabama to determine if a child was born outside the United States, supposedly for the purpose of assignment to English as a second language classes, by examination of a birth certificate.   However, the schools are forbidden from disclosing the identity of individual students who are illegal or the children or illegal aliens.

This was the most controversial part of the Alabama law.  The news coverage and propaganda was that the schools will act as immigration enforcement authorities.  That is totally untrue.  Although probably the Alabama legislature hoped to discourage illegal immigrants from swamping their schools, all the law did was require statistical reporting.  The law prohibited the use of this information for any other purpose, and required identities to be anonymous in the reporting.

Section 30 was not blocked and was allowed to go into effect by the Court of Appeals and is now being enforced in Alabama.

Section 30 makes it a felony for any illegal alien to enter into or attempt to enter into any business transaction with the State of Alabama or any political subdivision like a County.  This includes applying for or renewing a license plate for a vehicle, a driver’s license or identification card or a business license.   Marriage licenses are exempted.

END OF PART 1

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