Never has a ruling by the Supreme Court been more aptly titled as an “Opinion,” because that is exactly what Justice Kennedy and his cohorts have delivered in Arizona v. United States. It is nothing more than an open display of judicial activism. The majority opinion is not a legal explanation on the Constitutionality of Arizona’s laws, but is an ideological dissertation on this current administration’s view of immigration.
Not only is this ruling devoid of any appeal to the Constitution, it is very dangerous. It is an aberration of fundamental Constitutional principles and a brazen assault on state sovereignty! Chiefly, Kennedy takes the Supremacy clause of the Constitution, which declares that the Constitution is the supreme law of the land, and translates that principle into the supremacy of the Federal government over the states. There couldn't be anything more contrary to our founders’ intent. Let me repeat: this opinion is a monumental assault on the sovereignty of the states.
Article I section 8 clause 4 of the Constitution states that Congress has the power [t]o establish an uniform rule of naturalization. The purpose of the federal government in the case of immigration, as Justice Kennedy appropriately acknowledges is “to be a single voice of the nation for foreign relations.”
This external focus is in line with James Madison’s directive that:
“The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce…”
Indeed, we must have a single rule of law regarding immigration, else foreign nations will never know what to expect from state to state. However, this is where Kennedy’s constitutional understanding ends. He continually remarks throughout this opinion, that the states are not only not allowed, but not capable of enforcing the laws that the federal government codifies. What is his authority for this opinion? Not the Constitution itself and certainly not the founders.
Kennedy does not appeal to the Constitution as the standard, but rather the “broad discretion of immigration officers” as the determining factor of how immigration policy should be devised and carried out. He says, “Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all.” The standard for deportation of an illegal immigrant is NOT the law, according to Kennedy, but an arbitrary determination of the Department of Homeland Security, which we all know will reflect Obama’s recent declaration.
Kennedy suggests that the states must submit to lawlessness based upon the whim of federal officials, declaring,
“Were §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.”
How does Kennedy justify this arbitrary determination?
“This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.”
According to Kennedy, enforcement of immigration laws are nothing more than a tool to harass illegal aliens. This is a direct reflection of the policies of the President and not the law established by Congress through the powers delegated by the Constitution. Simply put, the states must accept violations of the law if the whim of the sovereign decides it is not in their comprehensive scheme to enforce the law. It is the whim of the sovereign to decide who gets the privilege of citizenship, not the supreme law of the land.
Kennedy further opines that the states are apparently not smart enough to know when to deport and not to deport:
“There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable…By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.”
It should be apparent by the Federal Government’s refusal to enforce the law, that it is, in fact, the states that have better sense about immigration laws. The federal government is not interested in following the law of the land, they are only interested in circumventing it to achieve their ideology and now the Supreme Court is aiding and abetting this lawless assault upon Liberty. I will repeat it, if you have to circumvent the Constitution to do your job, YOU are the criminal.
In true judicial activist form, Kennedy couldn’t resist giving the liberal agenda for immigration as justification for arbitrary enforcement of federal law. Nearly quoting the president’s position on this law, Kennedy states:
“Immigration policy shapes the destiny of the Nation. These naturalization ceremonies bring together men and women of different origins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the Constitution, and to bear arms on behalf of the country when required by law. The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.”
I ask you, what does this have to do with the Constitutionality of these laws? I believe the key to understanding this opinion lies in knowing the President’s recent determination that DHS will not be enforcing immigration laws and for the court to rule otherwise would allow the states themselves to nullify the president’s order. Here it is, in Kennedy’s own words:
“If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement”
Ignoring nearly two centuries of the individual state’s role in making these decisions (as outlined cogently in Scalia’s dissent), Kennedy cuts through one of the pillars of the Republic, state sovereignty, like a buzzsaw. He tramples the separation of powers and wholeheartedly supports just one more example of the executive branch stealing power from Congress. Any hopes that Congress will do anything about it?
In a statement that can only be classified as patronizing, Kennedy throws the final salt in the wound, by declaring, in spite of the states “frustrations” with enforcement, the federal government is the King, and the states must subject themselves to its authority.
“Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.”
The “victory” claimed by some is no victory at all. The Supreme Court did uphold the ability of law enforcement officers to contact Immigration and Customs Enforcement (ICE) when they have pulled over someone to verify whether that person is an illegal alien. Big deal! Justice Kennedy has informed us:
“As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez Mendoza, 468 U. S. 1032, 1038 (1984).”
It’s not illegal to be illegal. Really?
Since being here illegally is not a crime according to the federal government, even if law enforcement is informed that a person is illegally present, that officer will still have to let them go. The Supreme Court has said any other action by the state is an infringement upon the federal government’s power. According to Kennedy, state officers are not even allowed to detain illegal aliens:
“By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.”
According to Kennedy, the sole authority to determine whether an illegal alien is to be detained or deported rests in the Attorney General:
“[T]he Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States…the Attorney General will issue a warrant.” Kennedy then reminds everyone that all who are enforcing these laws are “subject to the Attorney General’s direction and supervision.”
In what version of the Constitution did he find this?
Once again, it is NOT about the law, it’s about the discretion of the Federal Government and the Federal Government is King. This court has not only taken the precedent and placed it above the founders’ understanding of the Constitution, but now regulation applied by arbitrary discretion is also elevated above our foundational principles. This supports the hopes of this current administration to further create a totalitarian government led by King Barry I.
In one decision, the Supreme Court has told every state, they do not have the authority to protect themselves; they must submit to the supervisory authority of the Federal Government and the Supreme Court supports the president’s recent directive to DHS.
Let’s be clear. The Constitution says the federal government is supposed to establish standards so that foreign nations will not have to deal with 50 different rules. Yes, the states are bound by these standards pursuant to the supremacy clause. However, the power to create standards does not infer the ability to be the sole enforcer. Once the standards are set, then the states are bound to enforce those laws pursuant to those standards. The only time the federal government is allowed to be involved is when the states are not following those standards! This power has now been expanded from the power to create regulations to the power of sole enforcer, and Justice Kennedy has now declared that the sovereign states have no ability to enforce these laws, and therefore have no right to protect their own territories. It’s as if the US government, via the Supreme Court, has practically expelled Arizona from the Union – since, if the Federal government will not enforce the law and Arizona is NOT ALLOWED to enforce the law – then Arizona is bare and unprotected.
One need only read Justice Scalia’s dissent to discover the correct interpretation.
“ The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.”
As do I, Justice Scalia. As do I.
ABOUT: KrisAnne Hall travels the country teaching groups the truth about the history of our great founding documents and the government that our founders really wanted us to have. She is a Constitutional attorney and former state prosecutor, when forced to choose decided she would not sacrifice liberty for a paycheck. She is a disabled veteran of the US Army, a Russian linguist, a mother, a pastor's wife and a patriot. Awarded the Freedom Fighter award by Americans for Prosperity, and the Certificate of Achievement from the Sons of the Revolution for her defense of Constitutional principles, Congressman James Blair Award for Defense of the Constitution. Author of "Not a Living Breathing Document: Reclaiming Our Constitution, and the DVD series The Roots of Liberty: The Historic Foundations of The Bill of Rights. Because our children are the future of America, KrisAnne has also authored two children's books, Bedtime Stories For Budding Patriots and Essential Stories for Junior Patriots.
To Contact KrisAnne to teach the Constitution to your group or order her books or DVDs go to http://www.KrisAnneHall.com
Comment
Comment by Arnold Wray Oliver on June 27, 2012 at 6:37pm Everyone who opposes Obamacare is counting on Justice Kennedy to rule with the conservatives on the court to overturn the law. After reading Krisanne's outstanding critque of Justice Kennedy's flawed reasoning on SB1070, I predict he will go along with the liberals and Obamacare will be ruled constitutional in it's entirety or at the best the mandate will be stricken. Nothing more.
Comment by Judith R. Hannan on June 26, 2012 at 2:23pm Secession, anyone? Arizona?
Comment by Debrajoe Smith-Beatty on June 26, 2012 at 1:49pm America is no longer a free nation.
Comment by Dan Bruner on June 26, 2012 at 1:03pm Ok, excellent summation and letter...now what. What are YOU gonna DO!?!, and by YOU I mean each and every one of us. Obama and his cabal have proven numerous times their utter contempt for the Constitution and the citizens of the US. SCOTUS has, time and again used their lifetime appointment to perform their own brand of abortion on the US Constitution granting the Federal Government what amounts to now, complete authority over individual states and its citizens. Our so called "representatives" do not represent the desires, wishes, and needs of those "represented" . The pat answer has always been the "ballot box", vote the scoundrels out, etc...well how has that been working for you?
The problem is this...the vast majority of Americans are LAW ABIDING, and the ruling elite know this. So, they pass "laws" that chip away at our freedom and we blithely follow them cause it's "THE LAW". When is a LAW, UNLAWFUL?, and when does the majority of law abiding citizens stop following unlawful laws? I guess each individual has to answer that themselves. I try to imagine what the founders of this nation must have been feeling when they signed onto the document that started "When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.--" Heady words, historical words, and words for which each signer would be hung if captured. They risked everything to be free, and now I fear most would not risk missing "Dancing with the Stars" to fight for their freedoms.
Comment by Arnold Wray Oliver on June 26, 2012 at 11:37am There is only one qualification to be a Supreme Court Justice. That person should be a strict constitutional constructionist. All else in a remarkable legal career means nothing and that person is prohibited from injecting his personal opinions or feelings in a ruling
Comment by Rich Knoch on June 26, 2012 at 11:17am I think its time for Kennedy to retire as he seems to have lost touch with the Constitution as well as common sense.
obama chose not to enforce the LAW and SCOTUS has limited Arizona, so they cannot protect their citizens.
Only demented Liberal thought processes could scheme up this irrational decision . . . . now obama is overtly attacking state law enforcement officials with their hot line scheme.
Time to throw them all out and take our government back . . . this November!
Comment by Marcia Wood on June 26, 2012 at 10:19am KrisAnne is a very brave Patriot and I am enclosing another letter from her: I pray that Judson will help guide and direct the movement below - we can't keep talking we must act now.
Top COP Alert - Read Letter from a Constitutional Attorney and True Patriot
Please read this 'important letter' !!
The following letter by Krisanne Hall, brilliant Constitutional
Attorney and true patriot, should be copied by everyone and sent
everyplace: blogs, you tube. Facebook, Congress, candidates, letters
to the editor, call into local radio shows and read on the air.
AMERICA is not EUROPE. Americans are not Europeans with their hand
out. So all those people who want a hand out are welcome to move to
Europe. All those willing to work for freedom and liberty you are
charged with sending this letter out.
Thank you Krisanne Hall.
Dear Mr. Boehner, Mr. McConnell, et. al;
Our federal government is out of control. It is not the role of the
federal government to regulate the daily lives of the citizens. It
is not the role of the federal government to regulate domestic
commerce. It is not the role of the federal government to tell
farmers what to grow, nor tell people what to eat. It is not the role
of the federal government to dictate the education of our children.
It is not the job of the federal government to trespass into state
criminal investigations.
It is not the role of the federal government to control our rural or
municipal affairs; yet, the President has now established federal
councils for both rural affairs (Executive Order 13575—Establishment
of the White House Rural Council June 9, 2011)and municipal affairs
(Executive Order-- Establishing a White House Council on Strong
Cities, Strong Communities May 1, 2012). Russia called these councils
the “sovyet” and they are the final building blocks to communism. It
is not the role of the Federal government to be the people’s nanny.
It’s not the role of the Federal government to spend this nation into
oblivion. Pardon me if I do not get excited about your current budget
debate. That drama has outlived itself, and I say let the government
shut down for a while; we might buy a few more days of life for our
Constitution. I am also not impressed by your resolution on foreign
affairs, encouraging “democracies" in foreign nations, while our
republic is being actively destroyed by its own government.
It is your role, Congress, to stop the Executive encroachment into
the Legislature and it is your duty to stop the Federal encroachment
upon individual Liberty. Our founders took great care when creating a
federal government that would be limited and always in submission to
the states and the people. WHEN is Congress going to take a real
stand against the destruction of the rights and privileges of this
people? Will you wait until it’s too late? Mere “outrage” doesn’t get
the job done. This Congress is pushing the nation to a point of
turmoil it has not seen for 150 years. And make no mistake; each and
every one of you will be personally responsible for what will occur.
Are you prepared to live with that responsibility and those
consequences? It will not fall on the shoulders of the President
alone and the blame game will not alleviate the suffering of our
children when they are so grievously affected. Yet, we can avoid
repeating the mistakes of our history. But we must act now. We must
act decisively. If not, we will regret our neglect. We have the
opportunity now, but have no guarantee it will be available much
longer.
Does Congress truly understand WHY people fled communist nations to
come to the greatest nation in the world? Do you truly know the cost
of such sacrifice and what you are supposed to be defending? You are
fooling yourselves if you think one more election is going to fix it.
You don’t have that kind of time. The blocks are in place, and you
have provided the mortar. Take a stand now. Not a political stand,
but a stand that involves integrity, courage, and resolve. No more
petitions asking the president to stop stealing legislative power. No
more demands that Eric Holder resign. YOU must do your job and YOU
must defend this nation and it’s Constitution from these enemies, both
foreign and domestic. You must:
1. Put an end to the executive order madness. Exercise your
constitutionally given power, as provided through the checks and
balances and separation of powers. Show this nation that you
understand that Legislative power is not to be shared and it is
definitely NOT to be taken.
2. We are not subjects of the United Nations and never intend to
be. Get them out of our business.
3. If you are unwilling to impeach, defund any person appointed
by the executive branch outside Congressional and Constitutional
authority. (i.e. all the Christmas appointments and Czars)
4. Pick up your Congressional oversight responsibility and shut
down these executive regulatory agencies whose only purpose is to
“harass our people, and eat out their substance.”
5. Get control of the immigration in this nation. We don’t want
to see GAO reports telling us that the Department of Homeland Security
(DHS) and the State Department cannot agree on the degree of terrorist
association a visa applicant must have to render the applicant
ineligible.
6. It is time to indict Eric Holder for the criminal that he is.
No more whining, no more demanding for resignations, INDICT him and
then FIRE him.
7. Impeach Elena Kagan. She is obviously incapable of using the
appropriate professional ethic and judgment needed to be a Supreme
Court Justice. Learn from this mistake and actually involve
yourselves in the confirmation process. Your employers are sick to
death of political games.
8. Repeal The Federal Restricted Buildings and Grounds
Improvement Act. Now. You are supposed to be protecting the rights of
the people, not violating them.
9. End the 4thamendment violations permitted in the Patriot Act. Now.
10. Repeal sections 1021 & 1022 of NDAA 2012. It’s not only about
habeas corpus, it’s about
a. unilateral power given to the president by congress to
determine who is a terrorist and then detain them in secret with no
probable cause;
b. unilateral power given to the president by congress to invoke
the laws of war during a “hostility”;
c. unilateral power given to the president by congress to
transfer the power under the laws of war to “domestic agencies
fighting terrorists”
11. Get the IRS out of the passport business.
12. Don’t just read the Constitution, study it. Not how you studied
it in law school, that wasn’t the Constitution, that was
Constitutional Law, there is a huge difference. Those of you who went
to Harvard, we understand if you don’t know what the Constitution is,
it hasn’t been studied there in years. May I suggest a course that I
know will teach you the truth and is so simple a Congressman can
understand it. I happen to know the teacher personally and I am sure
that she would come teach it at her own expense and sacrifice.
Interested? Click Here.
These are some of the demands of your employers; we demand you do your
job. These are the requirements of our founders; they have entrusted
us with the Liberty purchased with their lives. These are the duties
imposed upon you by the Constitution of the United States, and your
obligations consistent with the oaths you took. And, these are the
times that try men's souls. How will history remember us? The
generation that participated in death of Liberty or the generation
that gave our last breath to prosper it? I have made my choice. How
will you choose?
Sincerely,
KrisAnne Hall
www.KrisAnneHall.com
See END GAME
Then decide. Victory is our only option.
If you have any doubts about our Government Obama and the Supreme Court Justices just you need look no further, because two huge events have just taken place right under your noses that basically kicked our Constitution along with our freedom and rights under the bus.
Obama just gave about 1 million illegal aliens a free pass to remain in our United States – he gave them “amnesty” no other words to fit his latest law on illegal aliens. The Supreme Court Justices just did a piggyback with Obama on the immigration problem and pretty much just rewrote our Federal laws.
By the time the Justices finished slicing and dicing the Arizona SB 1070 there is nothing left but a bunch of nonsensical gobbilty goop that actually doesn’t hold water or amount to a “tinker’s damn.”
But citizens of America, the Government is yours and those working in the Government must abide by the decisions of the people. It’s time to stand up for your Nation, children and grandchildren today. The citizens of America must place their Government representatives on alert – give them a 30 day plan to clean up their act or we will remove them one dirty politician at a time.
Here’s the plan, take a minute to become a member and let’s get this show on the road today. America needs you today! http://www.constitutionaloversightposse.org/
Go one step further – Put the plan on your website, invite your family, friends and co-workers to join. We need 1 million “Top Cops.” Volunteers to grow membership, attorneys, Constitutionalists, researchers and more are needed just tell us what you’d like to do…
Comment by Truckingal on June 26, 2012 at 10:03am I believe people are overlooking why this actually happened the way it did: Kagan recused herself, leaving only eight justices voting. If Roberts had voted with the rest of the conservative justices, the result would have been a tie vote. In the case of a tie vote, the decision of the Ninth Circuit Court of Appeals would have stood. That decision would not even have allowed the narrow upholding of the portion of the case that was upheld. By voting the way he did, Roberts (or we assume it was Roberts) at least managed to uphold one part of the Arizona law. If he had voted the way people seem to believe he should have voted, the entire law would have been overturned. This was actually a crafty decision based on the actual effect of the law as it stands. It couldn't have gotten any better-and could have been eminently worse-because of Kagan's recusal. We can be charitable and assume that Roberts had input into Scalia's scathing slap at Obama . . .or we can continue to blame Roberts for doing the best he could to protect Arizona's rights under existing law. I think we should do the former..
Comment by Carlo A on June 26, 2012 at 9:49am KrisAnne--
What do expect when a NON "natural born citizen" is elected, with no vetting and with absolutely no prior evidence that he had a deep allegiance to this nation and to the Constitution, as amended?
I blame the voters for allowing an unvetted person into the White House! And, what is worse, Obama is setting up a coalition of like minded voters by giving them special perks, money, passing EOs, etc. with the sole purpose of getting re-elected so he can finish destroying America.
Anyone that believes Obama will be ousted is dreaming. This is a 50-50 proposition.
And, if Romney places Rubio on the ballot, we will lose the opportunity to continue to try to boot Obama on Constitutional grounds, should Obama win.
Carlo
Comment by MUG on June 26, 2012 at 9:46am The Supreme Court is no longer the arbitor of the Intent of the Constitution, but instead the redefiner of Constitutionality.
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