Judge Bea starts with the premise that determining Congressional intent is the touchstone from which judicial inquiry of America's immigration laws and Arizona's SB1070 must begin. There he agrees with the majority in the way two persons on opposite sides of a fence on the otherwise open range see that fence.
Judge Bea tips his hand early in his lengthy concurrence/dissent. He frames the issue differently than did Judge Paez. Bea says "[t]hus, this court is tasked with determining whether Congress intended to fence off the states from any involvement in the enforcement of federal immigration law."
The way a legal question is framed often leads to an obvious conclusion. Bea is not asking what are the perimeters Congress established whereby the States may become involved with enforcement of federal immigration law. In Wild West fashion Bea assumes that the range is either open or fenced, either the States can't engage or they may Willy-nilly do as they please.
Bea feathers the framing of the legal issue writing "[m]oreover, it is the enforcement of immigration laws that this case is about, not whether a state can decree who can come into the country, what an alien may do while here, or how long an alien can stay in this country. Bea is correct in this part of his analysis but he conveniently ignores the impact of ad hoc immigration enforcement schemes by the States on the uniform federal scheme written by Congress and enforced by the Executive branch.
Judge Bea seems to want to hang his hat on 8 U.S.C. § 1357(g)(10)(B) which says:
Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State—
(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or
(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
The question now remains whether Judge Bea sees SB1070 as cooperation with the Attorney General. I am fairly certain that Attorney General Eric Holder sees SB1070 as anything but cooperative.
Does SB1070 reflect and mirror the laws of New Jersey and Rhode Island? That is Judge Bea's opinion. There are significant differences. Most glaring is that neither New Jersey nor Rhode Island enacted a statute. Arizona's SB1070 is statutory law, and that law has an express intent which strikes in stark defiance at the uniform federal scheme adopted by Congress and enforced by the President. Arizona's intent is attrition through enforcement. That statutory intent which Judge Bea is ignoring distinguishes the way Judges Bea and Noonan see this case.
Here are those New Jersey and Rhode Island directives, which come from Judge Bea's footnotes (always remember and never forget to read the footnotes).
In August 2007, the attorney general of New Jersey issued a directive which stated:
When a local, county, or State law enforcement officer makes an
arrest for any indictable crime, or for driving while intoxicated,
the arresting officer or a designated officer, as part of the booking
process, shall inquire about the arrestee’s citizenship, nationality
and immigration status. If the officer has reason to believe that
the person may not be lawfully present in the United States, the
officer shall notify [ICE] during the arrest booking process.
Anne Milgram, Attorney General Law Enforcement Directive No. 2007-3.
Rhode Island Executive Order 08-01, “Illegal Immigration Control
Order,” issued March 27, 2008, states at paragraph 6:
It is urged that all law enforcement officials, including state and
local law enforcement agencies take steps to support the enforcement of federal immigration laws by investigating and determining the immigration status of all non-citizens taken into custody, incarcerated, or under investigation for any crime and notifying federal authorities of all illegal immigrants discovered as a result of such investigations.
For his part Judge Paez sees SB1070 much differently than does Judge Bea. In Paez's analysis of §2 (B) he addressed the distinction between the majority and minority views in his footnote number 7.
The dissent claims that Section 2(B) “merely requires Arizona officers to inquire into the immigration status of suspected” undocumented immigrants; that “simply informing federal authorities of the presence of an[undocumented immigrant]. . . represents the full extent of Section 2(B)’s limited scope.” Dissent at 4873-74. Section 2(B) requires much more than mere inquires—it requires that people be detained until those inquiries are settled, and in the event of an arrest, the person may not be released until the arresting agency obtains verification of the person’s immigration status. Detention, whether intended or not, is an unavoidable consequence of Section 2(B)’s mandate.
Next we will look at Judge Bea's legal analysis beginning with United States v. Salerno and the law about facial challenges and what I call the Inconceivable Standard.
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