Appearance v. reality
Heather Higgins ·
Jun 22, 2010 at 5:42am
Good Morning America reported this morning that Eric Holder was planning to sue AZ over their immigration bill, on the grounds that it had the appearance of discrimination. Hard to believe the Justice Department would think that was a legal standard, but if they do, can we go after Eric Holder for the appearance of political bias in the execution of his duties?
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May '10
Re: Appearance v. reality
It certainly appears as though the Fall election strategy is to throw red meat at the base. But this particular move seems just as likely to rally Republican voters to the polls. It is consistent however with the notion of an administration teeming with impractical ideologues such that Rahm Emmanuel is the resident pragmatist.
May '10
Re: Appearance v. reality
Ima gonna sue the Prez every time he appears competent, statesmanlike, or remotely suited to the job. Thus far, the phones are silent. We're thinking of lowering the bar so we can sue him for the appearance of non-petulance or acquaintance with the Constitution.
Re: Appearance v. reality
I certainly understand the powerful emotions on both sides of the Arizona law, Heather. The question here is not one of ends. That is, it does not deal with who is entitled to stay and who must leave. It is with the question of how we identify these people by a set of checks that could be done invidiously or honestly. The concern with abuse cannot be swept under the carpet, but it seems something of a stretch to let the "appearance of discrimination" drive a law suit in the absence of any real information on how the program has been administered. Rather than push the litigation button so early on in the proceediings, just monitor the program to see how it is being administered. There is little reason to suspect that any major abuse of local authority will go unnoticed. The suit seems premature.
May '10
Re: Appearance v. reality
Now that's the scary part: Rahm Emmanuel is the level-headed pragmatist keeping the Administration's idealists grounded in reality. Rahm "never let a crisis go to waste" Emmanuel!
May '10
Re: Appearance v. reality
Richard: Can the government pursue this based on a hypothetical violation of rights alone? In other words, can the Federal Government alone change Arizona's law without a John Q. Public whose rights have been violated under that law? (That theory sounds like a very large pandora's box, but I'm not a lawyer.)
Re: Appearance v. reality
Wow, if that's the best the Administration can do, they're in trouble. But as Trace suggests, this suit is probably more about rallying the base than winning in court.
The Administration can seek to overturn a state law if that law -- on its face -- would require some violation of constitutional rights. But on its face, the Arizona law very clearly says that the police cannot take into account "race, color, or national origin" in determining whom to ask for papers.
If the law isn't defective on its face, then you have exactly the problem that Jonathan points out: you can't pre-emptively sue on the theory that the state police are bound to abuse their power under the law. If they just wait 5 minutes, the ACLU will find somebody who claims to have been discriminated against, and then Holder will be off to the races.
I know Heather's question was probably tongue in cheek, but if Arizona prevails in the suit, then I believe the state could turn around and sue the Justice Department for prosecutorial abuse. Bring it on!
Re: Appearance v. reality
Standing is never an issue, Jonathan, if the U.S. government thinks that there is some violation of a federal law.
May '10
Re: Appearance v. reality
In Kris W. Kobach's "Defending Arizona" article (in June's issue of National Review), he points out that the Arizona law explicitly forbids discrimination in four different sections and does little other than restate federal laws already in place. Police officers can only inquire about residency documentation after identifying multiple grounds for probable cause. And officers can only do even that if the person is already suspected of some other crime (speeding, at the very least).
I'm no lawyer. But if Kobach is correct, then the Arizona law leaves absolutely no room for doubt that it is no more an invitation for discrimination than the related federal laws. Can the Arizona law really be struck down on grounds of discrimination despite this? Justly, I mean (a judge can always ignore his or her duties).
Holder might have no expectation of winning the case. They might be pursuing the lawsuit purely as a PR stunt for the November elections. A lawsuit needn't have any logical grounds to last for years, so this will provide Democrats an excuse to rant about Republican racism all the way through November.
Re: Appearance v. reality
I hope Holder didn't use "appearance of discrimination." Is that like the "appearance of incompetence," which would make for a nice lawsuit against the federal government these days? I don't think that the federal government can sue a state because a law has the "appearance of discrimination." From a cursory reading, the Arizona law appears merely to try to help enforce federal immigration rules -- it does not define itself who is permitted to be in the United States or not. Since the law does not discriminate based on race or legal immigration status on its face, the only real way to bring an action would be if the law is enforced in a discriminatory manner -- and, as Richard notes, we won't know that until the law has been put into effect for awhile. If the United States can sue because it believes the Arizona law appears to discriminate, then it is hard to see how federal immigration laws themselves are not suspect too.
Re: Appearance v. reality
John, this intrigues me: Is it even slightly plausible that a chain of court decisions could lead over time to invalidation of federal immigration laws? If so, Holder v. Arizona could do for open borders what Roe v. Wade did for abortion rights. Please tell me that I have this hopelessly wrong!
Jun '10
Re: Appearance v. reality
This is all so 1984 to me. The Arizona law is put into effect because Mexicans are crossing into the state illegally, which besides breaking Federal law is causing enormous hardship in the form of money spent to educate (I say laughingly), medicate, and habitate these Mexican lawbreakers. Now are they 100% Mexican? Well of course not. Some of them are very good hearted folks from the middle east. Others are your much adored MS whatever, a much adored gang of druggies, rapists, and murderers from Central America. But, for the most part, they are Mexicans...good, hard working, honest, family oriented, law breaking Mexicans. Now , are there some Mexicans who are blond and blue eyed, wearing Lederhosen while yodelling in their workplace? Perhaps there is one, out of 15 million. But if we don't ask all the blond yodellers in Arizona for their ID, then asking Mexican looking people for the same is verbotten? Here's an example: A robbery occurs at a bank. The 15 witnesses present say the perpetrator was black, or red, or whatever color. Are the police descriminating if they only seek to question people of the identified color?
These policies seem to be nationally suicidal.