Once again, judicial activists have obstructed the democratic will of the American people that our laws against illegal immigration should be enforced. After Clinton appointee Susan Bolton issued a preliminary injunction against Arizona's SB 1070 last July, the far-Left 9th Circuit Court of Appeals upheld the injunction against the most controversial part of the bill, which required law enforcement to check the legal status of people they came across where there was a reasonable suspicion they were here illegally.
Former Justice Department Attorney and Yale Law Journal editor Kris Kobach helped craft the language in SB 1070 specifically to withstand constitutional challenges by making sure it strictly confirmed to previous precedent from immigration case law.
There is absolutely no reason why any non-activist judge would even consider the Justice Department's lawsuit.
Unfortunately, the 9th Circuit is filled with ideologically-driven activist justices.
I have not had time to look closely at the entire 87 page ruling, [US vs. State of Arizona, 9th Circuit Court of Appeals, April 11, 2011 (PDF)] and no doubt more knowledgeable legal minds will scrutinize the decision further. But I will just give one little tidbit that I noticed.
Judge Paez's decision stated: "We have previously suggested that states do not have the inherent authority to enforce the civil provisions of federal immigration law". He then cited the previous Ninth Circuit decision Gonzales v. Peoria, quoting Gonzales to the effect that it "assume[d] that the civil provisions of the [INA] regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration."
However, this intentionally misconstrues the definition of "exclusive federal power". According to the Gonzales decision itself, "Although the regulation of immigration is unquestionably an exclusive federal power, it is clear that this power does not preempt every state activity affecting aliens."
The Gonzales decision goes on specifically to note that local law enforcement can arrest individuals for federal immigration violations if there was "probable cause to believe either that illegal entry has occurred or that another offense has been committed".
Further scrutiny will likely find dozens of similar completely manufactured arguments by the Ninth Circuit Justices.
Perhaps more telling than the non-existent Constitutional and common law arguments made by the Justices is the fact that they explicitly announced that ideological and political concerns affected their interpretation of the law.
Judge Paez stated in his decision:
"Arizona's law has created actual foreign policy problems of a magnitude far greater than incidental. Thus far, the following foreign leaders and bodies have publicly criticized Arizona's law: The Presidents of Mexico, Bolivia, Ecuador, El Salvador, and Guatemala; the governments of Brazil, Colombia, Honduras, and Nicaragua; the national assemblies in Ecuador and Nicaragua and the Central American Parliament; six human rights experts at the United Nations; the Secretary General and many permanent representatives of the Organization of American States; the Inter-American Commission on Human Rights; and the Union of South American Nations."
But the "human rights experts at the United Nations" that Judge Paez cites are members of the UN Human Rights Council which includes such paragons of human rights such as Saudi Arabia, Cuba, and Pakistan.
And the "Union of South American Nations" includes Venezuela, whose president Hugo Chavez is one of the most anti-American leaders on the continent; and Bolivia, whose President Eva Morales praised protestors who tried to burn down the US Embassy. Both these countries belong to the Organization of American States and the Inter-American Commission of Human Rights, as does Cuba.
Mexico, needless to say, has complained about SB 1070. But it has also spoken out against "unilateral measures taken by the Congress" against illegal immigration. [Mexican President Assails U.S. Measures on Migrants, By James C. McKinley Jr., New York Times, September 3, 2007] As VDARE.com's Allan Wall has repeatedly demonstrated, Mexico's position is completely hypocritical and amounts to complaining if Americans dare to intervene in their own affairs.
Judge Noonan concurred with Paez, but added: "The Arizona statute before us has become a symbol. For those sympathetic to immigrants to the United States, it is a challenge and a chilling foretaste of what other states might attempt."
Noonan went on to claim that this colorful comment did not affect his constitutional judgment. So why did he make it?
Who are these unelected Justices subverting the people of Arizona? Two of the three Judges, Carlos Bea and Richard Paez are Hispanic. In the interest of fairness, I will say there is little evidence that Judge Bea's decision reflected his ethnicity. His decision dissented from, and specifically rejected, the other two Justices' appeals to foreign affairs.
But Richard Paez is another story. His nomination was held up for over a year due to his left-wing record. He once said "I appreciate ... the need of the courts to act, when they must, when the issue results from the failure of the political process to resolve a certain question" and referred to Ward Connerly's anti-racial preference California Civil Rights Initiative as an "anti-civil rights initiative", suggesting he would strike it down. [No Justice, No Paez, by Mickey Kaus, Slate, March 12, 2000]
Naturally, groups like the Congressional Hispanic Caucus said that Republican racism was the cause of Paez' confirmation delay.
Paez went on to speak at the Berkley La Raza Law Journal's panel "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation" at which Sonia Sotomayor made her now-infamous "wise Latina" comments.
At the panel, Judge Paez said: "Though I am a Latino judge and there is no question about that – I am viewed as a Latino judge – as I judge cases, I try to judge them fairly. I try to remain faithful to my oath." These milquetoast statements led neoconservative Bill Kristol and his fellow-traveler Rich Lowry to praise Paez for supposedly rejecting Sotomayor's race-conscious stand.
But in their rush to find what Lowry called "Latinos for Impartiality", they ignored that Paez essentially made the same point as Sotomayor. He noted: "There is something about our own personal life experience that makes each of us different".
Paez' "life experience" included the horror that "When I first began working at the arraignment court, I was confronted with a sea of brown faces. It was somewhat disturbing because there were so many brown and black faces in the courtroom and holding areas. It was troubling." [Kristol misconstrued Paez comments, Media Matters, May 31, 2009]
This case of SB 1070 will no doubt end up before the Supreme Court, which is decidedly more conservative than Bolton or the 9th Circuit Panel. I am cautiously optimistic that it will uphold SB 1070.
But no matter how the Supreme Court rules, this latest judicial atrocity shows that in addition to defeating the ideological and ethnic interests that control our political system, immigration patriots must also triumph over ideologically-driven activist judges.
"Washington Watcher" [email him] is an anonymous source Inside The Beltway.