LINE IN THE SAND
The nativist wagons are circled when it comes to SB 1070 and the seven lawsuits filed against it, including one by the U.S. Department of Justice.
Governor Jan Brewer's legal defense fund for Arizona's new breathing-while-brown statute has raised $1.3 million and counting in private donations coming from every state in the nation.
Polls consistently show that Americans support the law by nearly 60 percent. Several states are gearing up to pass their own versions of SB 1070, which essentially criminalizes unlawful presence in the state of Arizona and mandates that police officers verify immigration status after a stop when "reasonable suspicion" exists that a person is an illegal alien.
Even more broadly, SB 1070 gives police officers the authority to make a warrantless arrest if "the person to be arrested has committed any public offense that makes the person removable from the United States."
Brewer essentially won the lottery by signing SB 1070. Before doing so, the polls showed our accidental governor's bid to get elected to be touch-and-go. Now she's riding so high that her main political rivals have bailed from the GOP primary, and her Democratic challenger Attorney General Terry Goddard even looks like a goner.
But weep not. The cavalry is on the way, and the cavalry is not on the side of the nativists.
It's scheduled to attack July 22 in the form of DOJ lawyers who will argue before district Judge Susan R. Bolton that she should "declare invalid and preliminarily and permanently enjoin the enforcement of SB 1070," in the language of the lawsuit United States vs. Arizona, filed July 6.
Bolton heard similar arguments on July 15 from Phoenix attorney Stephen Montoya in one of the other lawsuits in play. Montoya, representing a Phoenix cop, claimed that the state law is preempted by federal law, and therefore violates the Supremacy Clause of the U.S. Constitution.
That clause makes the Constitution and federal law "the supreme law of the land." Furthermore, the Constitution explicitly gives Congress the power to "establish an uniform rule of naturalization," which it has in the form of the Immigration and Nationality Act.
In one of his rebuttals to Montoya at the July 15 hearing, Brewer's legal counsel, the $450-per-hour Snell & Wilmer lawyer John Bouma, claimed that the state law simply mirrors federal law, and that Arizona state law and federal immigration law have "identical purposes."
But the federal government isn't buying that argument, and neither is University of Arizona law professor Jack Chin.
"West Side Story is very similar to Romeo and Juliet," he told me recently. "But they're not the same. And SB 1070 and federal immigration law are not the same."
Indeed, where the federal government's immigration laws are complex and often flexible, depending on the history of the individual alien, SB 1070 is a one-size-fits-all approach. You know, like a pair of handcuffs.
"SB 1070 has a singular response to every undocumented person," said Chin, "which is criminal prosecution. But that's not federal policy."
Indeed, the DOJ complaint against Arizona explains this in detail over 25 tightly worded pages. The filing points out that SB 1070, as is stated in the very beginning of the law's language, pursues one goal alone: "attrition through enforcement." And it ignores numerous other goals that the U.S. Congress has set for immigration policy.
The government's complaint insists that SB 1070 will "conflict with longstanding federal law governing the registration, smuggling, and employment of aliens." It also disregards humanitarian concerns the government has for aliens who have "a well-founded fear of persecution" or who have been victims of natural disasters.
Moreover, it will interfere with "vital foreign policy and national security interests" by "disrupting the United States' relationship with Mexico and other countries."
One pertinent example: SB 1070 makes it a crime for a lawfully present alien not to carry with him or her an alien-registration document. That person, picked up by local law enforcement, would likely be taken directly to jail.
U.S. code has a similar provision, but the difference, as the complaint takes pains to explicate, is that the federal government doesn't arrest or prosecute aliens whose applications for asylum or some other humanitarian waiver are pending.
And as that alien's application is pending, "an alien may not have evidence of registration even though the federal government is aware of the alien's presence, has decided against removing the alien, and certainly has no interest in prosecuting the alien for a crime."
How will beat cops know all this? They won't. And the individual could be collared.
Larger, still, is the fact that SB 1070 effectively criminalizes unlawful presence, when Congress has "affirmatively decided that unlawful presence — standing alone — should not subject an alien to criminal penalties and incarceration," even though it makes the alien subject to civil proceedings for removal.
The federal government's hands are hardly clean on this issue. Deportations are up under the Obama administration. And Immigration and Customs Enforcement's stated goal of 400,000 removals for 2010 makes it clear that the feds are not prioritizing criminal aliens, as they say they are in this complaint. In fact, they're looking for all the warm bodies they can find to keep ICE's numbers up.
But there is a real threat of "a patchwork of state and local immigration policies throughout the country," the feds' complaint states. This is not allowed under the Constitution any more than it would be for individual states to begin signing their own treaties with foreign governments or declaring war.
The possibility of that "patchwork" taking hold is just one reason Judge Bolton needs to enjoin SB 1070 before its enforcement begins on July 29 — kill the baby crocodile in the crib.
Add to this the irreparable harm that will be done when this law goes live and people are wrongfully arrested or profiled because of the color of their skin. Something we all know is bound to happen.
Chin believes that no matter what Bolton decides, the 9th Circuit Court of Appeals will not let the law stand. If she enjoins and the injunction is appealed, Chin anticipates that the 9th Circuit will uphold the injunction, and if she rejects an injunction, the 9th Circuit will overturn the decision.
"High-speed preliminary injunction work is part of the diet of the federal courts," Chin related, meaning the 9th should get to it tout de suite.
So, assuming Bolton rules before July 29, I'm saying the U.S. cavalry charge will stop SB 1070. Still, Bolton should not dither. Too much rides on her acting quickly to enjoin. Otherwise the war over SB 1070 roils on.
GOD'S LEGAL BEAGLE
Some things you just cannot make up. Like a motion from the Almighty filed recently in district court on the U.S. Department of Justice's anti-SB 1070 lawsuit.
And by the Almighty, I mean, the Lord. Yahweh. Big Poppa. Whatever you want to call the guy with the long, white beard wearing sandals and a robe as the dudes with wings minister to him.
Actually, the rambling 63-page court document didn't come via thunderbolt. Rather, it was penned by the Almighty's messenger Divine Queen Mariette Do-Nguyen, proprietress of the Kingdom of Heaven, a.k.a. "The World Divine Government on Earth," which evidently is somewhere in San Diego.
Do-Nguyen introduces herself to the court, this way:
"I, Mariette Do-Nguyen, a legal immigrant from Vietnam during the evacuation of 1975, sponsored by the United States government, became a U.S. citizen in June 1982. I am the Almighty Eternal Creator's Messenger of Covenant, and founder and head of the Kingdom of Heaven in the earthly realm. Obeying the Almighty Eternal Creator's instructions, I act as His representative in the United States Federal Court, fill [sic] this Motion for Filling [sic] Third-Party Complaint, and seeking release." Later, she writes, "The Almighty Eternal Creator communicates directly with my divine soul through my dreams and His words."
She also notes, "I am acting pro se until further notice to the court, until someone on Earth comes forward to accept representation of the Almighty Eternal Creator in my place."
In other words, the Lord needs a lawyer. 'Til one steps up, Do-Nguyen, to borrow a phrase from The Blues Brothers, is on a mission from God.
Do-Nguyen has a Web site for the Kingdom of Heaven, a YouTube page, where she reads sermons in monotone before a camera, and Facebook and MySpace pages. On the latter, we learn that the Divine Queen is single, straight, a Capricorn, and does MySpace for networking and friends, who (for her) include Prince Charles, Sarah Palin, and Pope Benedict XVI.
The "Advocatess" is also the author of several books, including her latest, The Kingdom of Heaven Constitution. A scintillating read. Particularly if you're on Thorazine.
I should point out that Do-Nguyen's motion is in support of SB 1070. Seems she's ticked that she wasn't able to get her sister and her sister's family into the country, so the federal government needs to keep those Latino illegal aliens out. She says they're violating divine law, too.
The "Messenger of Covenant" details how the 9/11 terrorist attacks were revealed to her back in 1996. She says she warned two presidents and both houses of Congress, but no one listened to her. Can't imagine why not.
This Vietnamese Cassandra's motion, listed on the docket for U.S. vs. Arizona, as though it were any other amicus brief, also goes into some deeply strange detail about her supposed contacts with the FBI, the CIA, police from Ghana, and U.S. Senator Dianne Feinstein (D-California), among others.
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Do-Nguyen alleges she's a victim of President George Walker Bush and his administration, which "illegally handed over nearly a billion dollars to grand robbers and scammers, who are terrorists."
She complains, "These terrorists attempted to murder me, a U.S. citizen who held genuine legal rights to her monies, and try to using [sic] my money to carry out waves of attacks on American soil."
There are also numerous exhibits filed with e-mails that make it seem like she might have fallen for one of those Nigerian bank scams, except this one seemed to be out of Ghana.
I'm just glad she's on the same team as Arizona Governor Jan Brewer, neo-Nazi-hugging state Senator Russell Pearce, and SS-wanna-be J.T. Ready. Do-Nguyen should consider moving to Sand Land from Cali. She'd fit right in.