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Immigration and Arizonas SB 1070 by Robert Ramirez.

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1 Immigration and Arizonas SB 1070 by Robert Ramirez

2 The Goals of SB 1070 Create Criminal Offenses for illegal aliens trespassing in the ArizonaCreate Criminal Offenses for illegal aliens trespassing in the Arizona Stop the Employment of illegal aliensStop the Employment of illegal aliens Stop the transporting, harboring or concealing of illegal aliensStop the transporting, harboring or concealing of illegal aliens

3 What does SB 1070 Do Requires reasonable attempts by law enforcement to determine a person immigration status, if reasonable suspicion exists that the person is an illegal alienRequires reasonable attempts by law enforcement to determine a person immigration status, if reasonable suspicion exists that the person is an illegal alien Prohibit State or local entities from interfering or not enforcing the law and creates a private cause of action if said entity interferes with the lawProhibit State or local entities from interfering or not enforcing the law and creates a private cause of action if said entity interferes with the law Trespassing by illegal aliens – makes the presence of a person in Arizona a crime (trespass) if that person is not carrying alien registration or has willfully filed to register (the statue does not apply to a person who maintains authorization from the federal government to remain in the US)Trespassing by illegal aliens – makes the presence of a person in Arizona a crime (trespass) if that person is not carrying alien registration or has willfully filed to register (the statue does not apply to a person who maintains authorization from the federal government to remain in the US)

4 What Does SB 1070 Do Makes it an offense to pick up undocumented workers / as well as an offence for an illegal alien to get in said vehicleMakes it an offense to pick up undocumented workers / as well as an offence for an illegal alien to get in said vehicle Makes it a crime to transport an illegal alien into the state or induce an alien into the stateMakes it a crime to transport an illegal alien into the state or induce an alien into the state Allows for the investigation of employers relating to the hire of illegal aliensAllows for the investigation of employers relating to the hire of illegal aliens Contains a severability clauseContains a severability clause

5 Who is against it? The National Day Laborer Organizing Network – This is the most racist bill that weve seen in a generationThe National Day Laborer Organizing Network – This is the most racist bill that weve seen in a generation Center for Constitutional RightsCenter for Constitutional Rights Homeland Secretary Janet Napolitano (form Arizona Governor and signer of a previous Arizona Immigration Bill)Homeland Secretary Janet Napolitano (form Arizona Governor and signer of a previous Arizona Immigration Bill) Mr. Obama – undermines basic notions of fairnessMr. Obama – undermines basic notions of fairness Congresswoman Eleanor Holmes Norton – is dangerously unconstitutional in recapturing long discredited discriminatory laws..Congresswoman Eleanor Holmes Norton – is dangerously unconstitutional in recapturing long discredited discriminatory laws.. Eric Holder – US AGEric Holder – US AG The Mexican EmbassyThe Mexican Embassy Even some Republicans -Even some Republicans -

6 Other Arizona Immigration law 2005 Law makes human smuggling illegal2005 Law makes human smuggling illegal Janet Napolitano, then Governor of Arizona, signs a law that makes hiring illegal aliens a state crime – Legal Arizona Workers Act Janet Napolitano, then Governor of Arizona, signs a law that makes hiring illegal aliens a state crime – Legal Arizona Workers Act If an employer knowingly employs unauthorized workers the employer would be subject to probation and suspension of their business licensesIf an employer knowingly employs unauthorized workers the employer would be subject to probation and suspension of their business licenses Considered the most aggressive approaches to regulating immigration of its timeConsidered the most aggressive approaches to regulating immigration of its time

7 Other State and Local immigration law Other States with Immigration LawsOther States with Immigration Laws Arkansas, Colorado, Florida, Iowa, Louisiana, Massachusetts, Mississippi, Missouri, Nevada, New Hampshire, Oregon, South Carolina, Tennessee, Texas, Virginia, West VirginiaArkansas, Colorado, Florida, Iowa, Louisiana, Massachusetts, Mississippi, Missouri, Nevada, New Hampshire, Oregon, South Carolina, Tennessee, Texas, Virginia, West Virginia Local Governments with Immigration LawsLocal Governments with Immigration Laws Hazleton, Pennsylvania / Valley Park, Missouri / City of Farmers BranchHazleton, Pennsylvania / Valley Park, Missouri / City of Farmers Branch

8 Immigration in the Constitution / Federal Law The Constitution gives Congress the power over naturalizationThe Constitution gives Congress the power over naturalization The Constitution specifies things that only Congress can do:The Constitution specifies things that only Congress can do: Enter into Treaties; lay any duties …Enter into Treaties; lay any duties … Article IV. Section 4 – shall protect from invasionArticle IV. Section 4 – shall protect from invasion Immigration has been a function of both federal and state law: e.g. 8 U.S.C. 1421Immigration has been a function of both federal and state law: e.g. 8 U.S.C. 1421

9 Federal immigration law The first was signed into law in 1865The first was signed into law in 1865 The Immigration reform and Control Act of 1986The Immigration reform and Control Act of 1986 Illegal to employee those not authorized to work in the USIllegal to employee those not authorized to work in the US The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ … unauthorized aliensThe provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ … unauthorized aliens E-Verify for Employers (1996)E-Verify for Employers (1996)

10 The Doctrine of Federal Pre-Emption The Supremacy Clause - Federal Law is supreme, hence if the law of a state directly conflicts with federal law, federal law prevails or preempts state lawThe Supremacy Clause - Federal Law is supreme, hence if the law of a state directly conflicts with federal law, federal law prevails or preempts state law However, Federal Courts have ruled that preemption can apply even when federal and state law have a common purposeHowever, Federal Courts have ruled that preemption can apply even when federal and state law have a common purpose The intent of Congress is the ultimate touchstone in every preemption caseThe intent of Congress is the ultimate touchstone in every preemption case Federal Courts should be reluctant to infer pre- emptionFederal Courts should be reluctant to infer pre- emption

11 Preemption (Cont.) For federal law to preempt state law it must have a direct and substantial effect on the scheme that Congress has set outFor federal law to preempt state law it must have a direct and substantial effect on the scheme that Congress has set out Just because Congress has established a detailed statutory federal scheme – does not necessarily require preemption of that area of law by the federal government.Just because Congress has established a detailed statutory federal scheme – does not necessarily require preemption of that area of law by the federal government. But, Federal Courts have ruled that even without express preemption or significant conflict a state law may still be preemptedBut, Federal Courts have ruled that even without express preemption or significant conflict a state law may still be preempted

12 How have other laws faired? Arizona 2007 Law – Judge Neil Wake upheld Arizonas 2007 law and sustained the states ability to prohibit business from hiring undocumented workersArizona 2007 Law – Judge Neil Wake upheld Arizonas 2007 law and sustained the states ability to prohibit business from hiring undocumented workers Valley Park – Judge E. Richard Webber decided that not only did federal law not preempt Valley Parks law, but that to the contrary, federal law specifically permits such licensing lawsValley Park – Judge E. Richard Webber decided that not only did federal law not preempt Valley Parks law, but that to the contrary, federal law specifically permits such licensing laws

13 How have Other Laws Faired? (cont.) Farmers Branch – Challenged and on May 21, 2007 Judge Sam A. Lindsay granted a temporary restraining order enjoining the city form enforcing the ordinance and later issued a permanent restraining orderFarmers Branch – Challenged and on May 21, 2007 Judge Sam A. Lindsay granted a temporary restraining order enjoining the city form enforcing the ordinance and later issued a permanent restraining order Hazletons Immigration Relief Act – Challenged July 2007 and struck down by the US District Court for Middle District of Pennsylvania – the Court ruled that the Hazleton law was preempted by federal lawHazletons Immigration Relief Act – Challenged July 2007 and struck down by the US District Court for Middle District of Pennsylvania – the Court ruled that the Hazleton law was preempted by federal law

14 Side Bar Is there a Liberal slant in the Judicial System? Legal Education in the area of Constitutional LawLegal Education in the area of Constitutional Law Topics from Constitutional Law at a conservative schoolTopics from Constitutional Law at a conservative school Constitutional Law – University Case bookConstitutional Law – University Case book State Regulations and the Dormant Commerce ClauseState Regulations and the Dormant Commerce Clause The Problem of State ActionThe Problem of State Action The Revival of Substantive Due Process for... SexualityThe Revival of Substantive Due Process for... Sexuality Constitutional Law – Coauthored by John Attanasio (Dean SMU School of Law)Constitutional Law – Coauthored by John Attanasio (Dean SMU School of Law) Childbearing Decisions, Family Relationships, Homosexuality, the Right to Die.Childbearing Decisions, Family Relationships, Homosexuality, the Right to Die. Equal Protection for Illegal AliensEqual Protection for Illegal Aliens Why does this matter?Why does this matter?

15 How Will the Law Be Attacked? PreemptionPreemption Discrimination / ProfilingDiscrimination / Profiling

16 How can Arizona Defend SB 1070 Dublino – The Supreme Court explained that a detailed statutory scheme did not necessarily demonstrate preemptive intentDublino – The Supreme Court explained that a detailed statutory scheme did not necessarily demonstrate preemptive intent De Canas (1978) – state laws that are fashioned to remedy local problems can withstand a preemption challengeDe Canas (1978) – state laws that are fashioned to remedy local problems can withstand a preemption challenge The distinction between immigrants and immigrationThe distinction between immigrants and immigration The States Police Powers – States RightsThe States Police Powers – States Rights

17 Solutions Election of Conservative Law Makers on the Federal Level that will address the problem of illegal immigrationElection of Conservative Law Makers on the Federal Level that will address the problem of illegal immigration Election of a Conservative President that will address Illegal ImmigrationElection of a Conservative President that will address Illegal Immigration The passing of immigration reform that makes it clear that the federal law is not intended to preempt state action on the matter, i.e. creating stiffer penalties for employers or increased punishments for illegal aliens by a state is expressly permittedThe passing of immigration reform that makes it clear that the federal law is not intended to preempt state action on the matter, i.e. creating stiffer penalties for employers or increased punishments for illegal aliens by a state is expressly permitted


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