One Big Happy Happy

(Pictured here, the mating habits of honey badgers; photo credit: jukani)

Yes, the doctrine of federal preemption is, well, effing boring.  In law school, we tried to skip class during that part of Con Law.  Which would explain why, so far at least, every single media outlet I've watched has no clue whatsoever what the Supreme Court held in the Arizona immigration case.  From Fox to ABC to CNN to MSNBC, they were all, abysmally, wrong.

"Well, Scott, the Supreme Court held the Arizona police can just stop anyone, brown at Baskin-Robbins or driving innocently and brownly on the streets of Arizona -- for no reason at all -- and harass them.  Indeed the DOJ has set up a hotline to answer the calls of concerned of immigrants and citizens.  This is a big deal, Scott, and legal experts say this is just the beginning.  Lots of unanswered questions and much more litigation to come.  Back to you!"

(Photo credit: Moonbattery)

Oh, please.  Did these people even scan the opinion?  It's downright embarrassing.  Okay, okay, I understand.  Reading about federal preemption is worse than _________? Hell, even I can't fill in that blank.  But if you're not going to bother to read it, don't bother to snow us with your ludicrous, inane reporting.  Please!

So let me try to put it simply:  when the federal government has passed laws (Constitutionally permitted laws, of course), any state law that touches upon or concerns that same federal law might -- though not necessarily -- be preempted.  Which is to say, peremptorily exploded.  Think of it as federal pre-plosion.  Not a word, but still, it might help. 

So let's start with Arizona's "controversial" immigration law and this qualifier:  my post is NOT meant to be a scholarly law review article, even were I even capable of such.  It is meant to be an overview you can read while you pour milk over your kid's cereal in the morning.

Enough of an overview that you will be reasonably informed on the basic issues when you're standing in someone else's backyard this summer watching fireworks, sipping a beer, and listening to wanna-be blowhards talk about how the Arizona police are crazy out-of-control tribal freaks.

(Photo credit: Jeanetics.net)

Having watched extensive and horrifically erroneous media coverage of the subject, I thought someone should at least say something.  No one should look dumb, except by choice.

So where were we?

There are, of course, many ways in which a person can violate federal immigration law.  So many ways, in fact, that the federal government has enlisted the help of state and local law enforcement agencies to help the feds enforce these numerous violations.  It's called marshaling resources.  Essentially, the states agree to help the feds through what are called 287(g) memorandums of understanding agreements, or MOUs.

Simply put, the Feds delegate, at their discretion -- to local police (all of whom the feds vet, train and deem fit) -- the right to enforce immigration laws.

Fair enough.  So what's all the hullaballoo?  Why did AZ try to take it a step further?

Well, Arizona decided to make violations of certain federal criminal laws violations of Arizona state law, too.  But if you take a step back, this is nothing new.

For instance, if you rob a bank in Arizona, you've violated Arizona state law and federal law, too.  If you possess a boat-load of cocaine, you've violated federal and Arizona law.  If you solicit a minor on the internet for sex, you've violated Arizona's and Texas's, gosh, just about every other state's laws -- and federal law, too.

(photo credit: here)

In my own practice I've encountered overlapping federal and state laws from time to time.  For instance, I represented someone (a US citizen w/no immigration issues) who was accused of violating both federal and state law -- but he was investigated, accused and arrested by local law enforcement.

The state guys called the feds, who decided whether they cared that my guy had allegedly violated federal law.  Since my client was considered a "big fish" -- a doctor, lawyer, stock-broker, big-time banker, or rich guy is ordinarily deemed a "big fish" -- the feds decided that in this case, they "cared" and took over.

If my guy had been a fisherman living in a trailer subsisting on rat meat, the feds would have said "meh, we don't give a rat's ass" and we would have happily, dreamily even, sailed off to state court. I know this to be true because many fish, big and little, were netted during this particular fishing trip, and the feds gave the locals a big "pffft, you can have him" for the minnows.

The point is, states frequently -- indeed, almost uniformly -- have crimes on their books that are also federal crimes.  And usually, the feds don't complain when the local police reel in the accused criminals instead, and often in their stead.

What happened in Arizona, I do believe, is that the federal government said "meh" too many times to Arizona when it alerted the feds to the presence of illegal aliens who had committed criminal offenses.  The criminal offenses just weren't big-fishy enough for the feds to care.  They weren't "high-priority," in the fed-fish-speak.

(Image credit: Soft Supplier)

But Arizona considered these criminals a high priority.  And so Arizona wanted to incarcerate these so-called minnows on its own --  (NB: at least one of the 9/11 hijackers would have been a minnow to the Feds, FYI;  just sayin') -- since the Federales didn't care about them.  So AZ passed HB 1070 to enforce its borders.

The provisions at issue, in super-plain English, read as follows:

1.  If you are arrested by an AZ officer for a crime, then, and only then, the arresting officer, if he has reasonable suspicion to believe you are here illegally, must check your immigration statuts w/DHS.  If the officer is in a liberal county that doesn't give a rat's, too bad.  He's got to check in w/the feds re your status anyway. No discretion.

2.  If you are required to register w/the federal gov't as an illegal and you don't, that's a misdemeanor under AZ state law.

3.  If you are illegal and seek or obtain work in AZ, that's a misdemeanor under AZ state law.

4.  If you are illegal and an officer has probable cause to believe you've committed a "public offense" that would make you removable (basically deportable) under federal law, he can arrest you without a warrant.

I'm not going to cover #4 because frankly, I'm not smart enough or schooled enough to understand it.  My understanding is that it covers bad guys convicted of doing bad things in AZ or another jurisdiction, but for some reason, the crime was not "bad enough" that the feds care to deport them.  Suffice it to say, it's a small group.

But, as to #s 2 and #3, Arizona was trying to say "hey, if you violate a federal immigration law -- or try to get work in AZ when you're illegal -- we're going to prosecute you, even if the feds won't."

Now we can debate at length the wisdom of Arizona's laws. At length.  Making it a crime to seek work seems utterly unwise to me, for instance, for so many reasons.  But the merits of Arizona's laws are not the issue.

The only legal issues before the US Supreme Court were:  (1) can Arizona police officers be required by their own state legislature to inquire about a person's immigration status with the feds, AFTER the guy's been arrested for a criminal offense?  (2) And can Arizona prosecute violations of federal immigration laws by also making those violations state criminal law violations, too -- in cases where the Obama Feds yawn and say "let my people voters go"?

Short answer:  (1) Yes.  (2)  No.

The US Supreme Court held that if Arizona were to enforce federal immigration laws against individuals the feds didn't care a whit about, it would upset that "delicate balance" the DHS has struck between enforcing federal immigration laws and maintaining important diplomatic relationships with foreign countries.  And blah, blah, blah.

My executive summary:  whatever area the federal gov't injects itself into, for whatever reason, no matter how thin or flimsy, it is now an area completely taken over by the feds and the states can't do or say shit about it, even if their laws are in harmony with federal law, as Arizona's laws indisputably were. 

(And sure enough, about an hour after the AZ opinion was handed down, Obama told AZ he was immediately rescinding all of Arizona's 287(g) partnership agreements.  So don't even talk to me about spiking the football.  This was petulant -- and, particularly on the eve of the Obamacare opinion -- unspeakably foolish.)

Why should you care about this Arizona case -- your state has no immigration problems, right?  Because, err, as Joe Biden would say, this is a big f#cking deal.  There are a myriad of federal laws that the states also criminalize:  possession of guns in certain places, bank robberies, drug trafficking, prostitution, child kidnapping  . . . the list is infinite.

Yet, per the US Supreme Court in the Arizona case, where ever the feds breathe, there is no oxygen left for the states -- rendering states powerless to enforce their own laws.  In this case the ruling was because, ostensibly, the discrete area of immigration is so, well . . . . special because there are diplomatic relationships to be considered and blah blah blah.  Ha ha ha.

Now please don't misunderstand me.  I am not offering a critique against, nor a defense of, the wisdom of Arizona's laws -- just a synopsis of the Court's holding, together with a few extrapolations.

My main extrapolation is that if the US Supreme Court is willing to allow the federal government to squelch state laws and their enforcement on such weak "preemptory" grounds --  if Arizona puts a bunch of illegals in prison, it might hurt diplomatic relations, so went the argument -- then the Court will surely be willing to let the federal government regulate health insurance in kudzu fashion.  The regulations will be ever-growing and endless, in other words.

And that may be perfectly okay with you.  Admittedly, many federal laws sound terribly noble and fair -- in principle.

But would it be okay with you if the federal government forced, say, your obese mother, into a year of intense counseling and behavioral intervention because, damn it, she was just too damn fat?  

Preposterous, you say?  Not at all.  That's precisely what the Feds want to do with fat people.  After all, because your mother is so fat, she's going to have super-duper huge health care bills that the skinny rest of will have to pay for.  So it's only FAIR that we control her.

(Photo credit: ehow)

Why shouldn't the government have a say in what your mom eats, and how much therapy she must get, how much she exercises, how big are her sugary drinks, and how much she should sleep?  And who, exactly, gets to decide if your mom is "fat" -- Obama's Federal Fat Panel? Oh, I do hope you're not laughing, for that was no joke.

On a more serious note, experts advise us that orgasms are terribly important for our mental and physical well-being.  Perhaps the government will have a say in that, as well.  More orgasms will bring down health care costs.  That proposition you can take to the bank, my friend.  I've got hockey-stick graphs to prove it!

So you see, while it may seem terribly noble, and make awfully good sense -- from an actuarial, business, technocratic, central planning, and fairness standpoint -- to require everyone to purchase health insurance, where does it end, if ever?

The question isn't whether an insurance company can hope to turn a profit if it doesn't sweep healthy people into its premium-paying net.  It's whether we fishes ought be forced into the government's net.

I maintain the US Supreme Court is not in the business of making life fair, or business fair, for that matter.  Nor is the government.  Most things are not fair!  Deal, or go to Greece, my fair friend.

If the Supreme Court upholds the ACA insurance mandate, we will be blessed with a Federal Reserve and a Fairness Reserve.  

Neither were intended, sanctioned, or envisioned by the framers.

As my mother always said, "the road to hell was paved, intentionally."

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