Conflict inside the Ninth Circuit on SB 1070 and between the Ninth and Tenth Circuits on the States authority to arrest for violations of federal civil statutes. - The ninth Circuit is more restrictive of State Powers - By Xobekim superb analyst

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Can the tail wag the dog ?? .... Can States Congressional Legislate for the Nation ?? -- As is they were the U. S. Congress ?? ... Who is the captain and who is the sailor ??

Xobekim is a superb analyst of Judicial Matters


Ideas, Observations, & Mental Machinations
USA v. ARIZONA - THE SB1070 CASE ON APPEAL - PART NINE
By Xobekim


USA v. ARIZONA - THE SB1070 CASE ON APPEAL - PART NINE


Some excerpts :

Unfortunately, Judge Bea pinned his Section 2(B) analysis to Lewis Carroll's Through the Looking Glass and What Alice Found There, in THE ANNOTATED ALICE: THE DEFINITIVE EDITION 213 (Martin Gardner ed., Norton Publishers) (2000). Judge Paez refuses to follow Judge Bea into fantasy land.

In his footnote 6 Paez says "We have carefully considered the dissent and we respond to its arguments as appropriate. We do not, however, respond where the dissent has resorted to fairy tale quotes and other superfluous and distracting rhetoric. These devices make light of the seriousness of the issues before this court and distract from the legitimate judicial disagreements that separate the majority and dissent." (emphasis added).

A dispute among the Circuits has reared its head during this case. The majority's view conflicts with the Tenth Circuit's. See United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999). In Vasquez-Alvarez, the Tenth Circuit affirmed the denial of a motion to suppress where the defendant’s “arrest was based solely on the fact that Vasquez was an illegal alien.” The arrest did not comply with the requirements of 8 U.S.C. §1252c, and the defendant argued that the evidence found as a result of that arrest should be suppressed. The Tenth Circuit disagreed, holding that §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 laws, including immigration laws.”

The majority says the pertinent part of the federal statute " Subsection (g)(10) neither grants, nor assumes the preexistence of, inherent state authority to enforce civil immigration laws in the absence of federal supervision. If such authority existed, all of 8 U.S.C. §1357(g)—and §1252c for that matter—would be superfluous, and we do not believe that Congress spends its time passing unnecessary laws."

Footnote 24 provides more detail on the lack of inherent power of the States.

"The U.S. Department of Justice’s Office of Legal Counsel (“OLC”) issued a memorandum in 2002—at which time OLC was headed by then Assistant Attorney General Jay S. Bybee, now a United States Circuit Judge, as Arizona emphasizes—concluding that (1) the authority to arrest for violation of federal law inheres in the states, subject only to preemption by federal law; (2) a 1996 OLC memo incorrectly concluded that state police lack the authority to arrest immigrants on the basis of civil deportability; and (3) 8 U.S.C. §1252c does not preempt state arrest authority.

"To conclude that §1252c does not preempt inherent state arrest authority, the OLC memo relies entirely on the Tenth Circuit’s decision in Vasquez-Alvarez—the logic of which we have already rejected.

"The dissent quotes from the 2002 OLC memo in claiming that § 1252c is not made superfluous by interpreting it to have no preemptive effect. We are neither persuaded, nor bound by the arguments in this memo. It is an axiomatic separation of powers principle that legal opinions of Executive lawyers are not binding on federal courts. The OLC memo itself demonstrates why this is: the OLC’s conclusion about the issue in the 2002 memo was different in 1996 under the direction of President Clinton, and was different in 1989, under the direction of President George H.W. Bush.

"The dissent also claims that “Congress has authority to enact legislation which is designed merely to clarify, without affecting the distribution of power.” The dissent cites language from the Reaffirmation—Reference to One Nation Under God in the Pledge of Allegiance, stating, “An Act to reaffirm the reference to one Nation under God.” Pub. L. No. 107-293 (2002). The dissent’s argument is unavailing, as § 1252c contains no reference to anything remotely related to a “reaffirmation” of a state’s alleged inherent authority to enforce the civil provisions of federal immigration law."

Another battle line was drawn on the question of inherent powers of a State. Do the States have inherent power to arrest only for violations of federal criminal statutes, or do the State have authority to arrest for violations of federal civil statutes. The Tenth Circuit favors inherent authority for both categories. The Ninth Circuit does not see a legal basis for the States to go arresting persons for violations of the federal civil code.

I think Judge Bea's dissent was weak and far reaching. Judge Noonan by contrast provided a far more serious, and seriously reasoned opinion.

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