Challenging SB1070 in Court

Several days ago, on June 4, a class action lawsuit was filed in Arizona challenging the draconian SB1070 that, according to one lawyer participating in a webinar: SB 1070The Arizona Law and Report on Civil Rights Challenges,  it creates a near “police state” in Arizona, particularly for people of color, regardless of immigration status.

As regrettable as the enactment of SB1070 has been, it has inspired copycat proposals in 17 other states, including, Utah, Rhode Island and Georgia.  All the more reason SB1070 must be stopped in Arizona.

The class action suit, Friendly House et al v Whiting, challenges the constitutionality of SB12070, claiming it violates the Supremacy Clause, Due Process, Equal Protection, and the First Amendment.

The challenge will live or die over the court’s interpretation of the Supremacy Clause and immigration regulation.  The Supremacy Clause says that federal law preempts state law.  Since regulating immigration is dominated by the federal governemnt; the claim is that SB 1070 runs afoul of federal preemption of state law, and thus the constituion.

Next, the suit claims SB 1070 violates the Equal Protection Clause by impermissibly discriminating against noncitizens, particularly with race based classifications.  Due process violations impede the rights of persons to be free from unlawful questioning, arrest and detention. SB1070 also violates first amendment rights of day laborers in Arizona by preventing them from soliciting work.

The lawsuit also makes a right to travel claim that argues the law will discriminate against interstate travelers who are stopped by police for a broken taillight or other trivial matters and then be subject to extended questioning simply because of one’s drivers license.  The idea here deals with the fact that different states deal with different levels of scruitny when issuing a license. Thus, “reasonable suspicion” could be a consequence of your drivers license.

Several things are impressive about this litigation.  First is the diversity of individual litigants that goes well beyond members of the undocumented community to include lawful residents and citizens. Next is the wide array of organizational plaintiffs including friendly house– a huge direct service provider in Arizona; labor unions such as SEIU; and such groups as the ACLU; NDLON;  MALDEF and the NAACP.

It is the hope of lawyers representing these plaintiffs that the representativeness of the litigants will show widespread harm should SB1070 be implemented, scheduled July 31. For that reason lawyers have filed for a preliminary injunction that would prevent Arizona from implementing SB1070 pending the litigation.

It is important for folks to follow this litigation and to use it on the local level to organize against the spread of SB1070


Cheney’s fingerprints on the BP Oil Spill

Perhaps not since Jimmy Carter was President has the country experienced such a loss of confidence in government to address problems of national concern.  Government has become incapable of addressing deep social problems, whether they be on Wall Street or in the Gulf of Mexico.

The right wing would have us believe this crisis is the result of having a big federal government. I disagree. The reason is that we have a weak federal government.

The government’s current disrepair comes about as a result of a generation of deregulation– the culture of which culminated with the co-presidency of Dick Cheney. Yea. I am blaming the current malaise on Dick Cheney.

During the 2000s, Cheney removed the teeth of government regulators, making it impossible for government to do the job it is supposed to do. Cheney removed Clinton administration regulators and replaced them with lobbyists and executives from industry.  By privatizing government regulators, decisions were made with one thing in mind: profit to shareholders, not the public interest.

So, when the BP oil spill occurs, the governments response seems ineffectual because regulators from MMS, the Interior and Energy departments are industry apologists whose interests are not tied to the local Gulf state economies, and whose careers are not bound by the fate of the people living and suffering in this region of the country.

Part of Cheney’s evil genius was to move industry political appointees into civil service positions before Bush-Cheney left office. This shift makes it extremely difficult for Obama’s team to identify, roots out and then remove for cause these public officials hidden throughout the federal bureaucracy.  Cheney sabotaged the federal government by employing large numbers of persons whose commitment to deregulation undermines the basic functions of government.

And now his daughter criticizes the federal government for incompetence, the next stage in his nihilistic neoliberal plan, which ostensibly lessens public trust in government and further the Cheney’s political tea bagging agenda.

It’s wicked.

Yesterday’s “big Senate Primary Tuesday”

I have just a few points to add to the abundance of coverage of yesterday’s primary results. First, based on the results, it seems the “enthusiasm gap” between Democratic and Republican voters has closed. In Kentucky, the big news was that Rand (Ayn) Paul beat the GOP mainstream candidate Trey Grayson– who had been endorsed by Mitch McConnell and even Dick Cheney.  Paul’s victory speech warned the established of the coming T-Party movement. Rand ran his own campaign, but benefited from being Ron Paul’s son, which I think is the bigger take away here. Ron Paul is not a T-Party favorite, in large part because his very conservative politics is at least logical and consistent. Not so for much of the T-Party leadership whose political beliefs get jumbled in Palinish garble. To win in Kentucky in November, Rand Paul is going to have to tack to the middle ground, something his victory speech indicated he would not and perhaps could not do.  My guess is that Coleman (Dem) picks up this seat come November. If one looks at the Democratic turnout for its primary, they were up by ober 1/3 over the GOP, another good sign for the Dems.

In Pennsylvania, Arlen Specter was going to be toast against Pat Toomey. The anti-incumbent tusnami around the country and the fact that he spent the last 29 years in the Senate as a Republican, and frankly his age and infirmities,  were going to make him an easy target for the hard charging Toomey. Further, Toomey has been planning and strategizing to run against Specter. he has no plan against Sestack, who is himself a hard charging middle of the road democrat, and high intelligence and some integrity.  This one is going to be close, but I give Sestack the edge.

In Pa 12 cd, the only district in the country that voted for John  Kerry in ’04 and John McCain in ’08, the Critz, the Democratic staffer to John Murtha beat his Republican challenger, and is expected to hold on to the seat in November.

Which leaves Bill Halter forcing a runoff against Blanche Lincoln in Arkansas. Already a defeat for Lincoln, this is going to be a big test for progressive to see how well they can turn out the vote for Halter in June.

Although there a lot of good news here for Democrats, and progressive Democrats, one of the mysteries has to do with the total absence of Obama coattails.  He stuck his political capital out for Specter and Lincoln (tho his pulled back on Specter this past weekend). He had virtually no effect in MA back in Jan.  It seems having the president stump for you makes no difference this year, except for giving you a couple good photos and perhaps a presidential autograph for your collection.

The other take away for Obama is that he need not always tack to the right. It’s okay– and politically wise– to support progressives and make a fight for a more progressive legislature.

Immigration Control’s Strain on Democracy

Check out  my guest post in today’s Washington Post Political Bookworm blog

SB1070 highlights problem w/ “Illegal Alien” meme

It has taken the ludicrous extremes of SB1070 to clarify once and for all the mission of the “No person is illegal.”  It’s mission is to educate the public about the damage caused by the term “illegal alien,” a concept that is undefined in the immigration law code and that denies the humanity of persons who are forced to wear the label.

The idea is simple. We are not our actions or behavior. Human being are neither good nor bad; rather they do good or bad things. They are neither legal nor illegal. Rather they engage in conduct that is legal or unlawful.  When they engage in behavior that is unlawful, they may be labeled a suspect or convict or criminal, which defines them as somebody who committed or is charged with committing an unlawful act. But they themselves are not illegal. Their identity is not unlawful.

Here is the point. Were someone declared to be illegal just because of the unlawful acts they commit, there would be many millions more “illegals” walking the streets. If one were labeled illegal for an act they haven’t been tried for, which is the case with most “illegal aliens” then most of us would be “illegal,” in some capacity or another. an illegal jay-walker, or illegal loiterer, or whatever.

This is all the more the case since the offense of being undocumented in this country is a civil offense, not even a crime, and entering the country without papers is a misdemeanor, sort of like loitering or jaywalking.

Now in the immigration field, being undocumented comes with the excess baggage of having your identity dismissed as “illegal: If you are illegal in your essence, then perhaps the police should come to round you up. But then, if all your have done is cross an imaginary line without papers or overstayed a visa, then perhaps society ought to leave your essence alone and just deal with the relatively minor infraction of being out of status.

SB1070 functions as if human beings are illegal. SB1070 is excessive if indeed it is dealing with individuals whose only alleged offense is administrative or a misdemeanor. Not even the war on drugs imagines placing everyone in a state under suspicion for having smoked a joint or taken a pill. Nor would it because we are a nation of laws. It seems a shame that the rule of law does not pertain to Latino immigrants in Arizona.

SB1070 and Schumer/Graham: Cut from the Same Cloth?

Regardless of whether comprehensive immigration reform becomes law this year, 2010 has become the year of criminalizing immigrants.  Criminalizing immigrants has become the conservative AND liberal approach to resolving pesky immigration problems.  The polity has witnessed a remarkable convergence amongst liberal and conservatives that undocumented immigrants are criminals and deserve neither dignity nor rights in their efforts to make a better life for themselves and families.

The outcome? Reform or not, what’s occurring is a near pogrom against unauthorized immigrants and people who look like them.

In Arizona, already–and about 90 days before the new law is scheduled to go into effect– a Latino truck driver—born in Fresno—was arrested and detained for not having his birth certificate.  The law itself racially profiles all Latinos in Arizona.  It makes it a criminal offense to be an “illegal alien—and charges local police to identify and arrest them. Since even the governor who signed the bill cannot identify an undocumented immigrant, and no definition exists in the federal immigration code, all persons are under suspicion.  The only way in which the state avoids racial profiling is to ask all persons regardless of race/ ethnic considerations for their papers. This police state tactic would have a difficult time squaring with the law’s backer’s “don’t tread on me” mindset.

The Obama Administration offers itself up to the rescue.  Foreseeing the Governor signing SB 1070, Obama, Harry Reid and Nancy Pelosi reshuffled their legislative agenda this session and placed comprehensive immigration reform on the front burner.  They present CIR as the rational and reasonable alternative to SB 1070.

Problem is the version of CIR that Obama supports (Schumer/Graham), criminalizes immigrants if in a less obvious manner.

At bottom, as the writer Anis Shivani suggests, the similarities between SB 1070 and CIR are perhaps greater than the differences.  They both contribute to and result from a culture of criminalization and xenophobia in Obama’s America.

Although SB 1070, places all Latinos under suspicion, CIR slightly less broad scope still criminalizes all Latino immigrants who have the misfortune of having their information taken down by a police officer and fed into a database.

Consider ICE ACCESS. The CIR likely will codify ICE ACCESS, which consists of 14 existing federal/state/local immigration law enforcement provisions, which include 287(g), CSAP and Secure Communities.  It will legitimize, expand and extend these ICE ACCESS programs in a discredited broken windows approach to immigration, and racial profiling.

Under these programs, if an individual is pulled over by a cop, any record of prior law breaking could trigger an ICE agent to put a detainer in their file under 287(g), CAP or Secure Communities.  The detainer prevents the immigrant from being released and instead signals the transfer of the immigrant to ICE custody for detention and possible removal.  This process is triggered by no more than a traffic stop or broken taillight. Sometimes even less than that is needed.

Until now the Obama Administration has allocated over a billion dollars to such ACCESS criminal alien programs.  In FY 2010, it allocated $1.5 billion to CAP and Secure Communities, and proposes additional hikes for FY 2011.

Such embrace of ACCESS is bewildering and continues to plague Latino communities at the Constitution’s great peril.  CIR will also expand Secure Communities with biometric work authorization cards for everybody.

Who would have thought the liberal alternative to Arizona’s draconian law would consist of biometric work authorization, and a doubling down on programs that support police mishandling of immigrants as suspected criminal aliens?

When did collective guilt until innocence is proven become a liberal idea?  Such is the scary rational alternative that Schumer/Graham would have us consider.

How SB 1070 can Split the Tea Party

There are roughly two tracks to the Tea Party: one is the Ron Paul libertarian track, the other is the Palin track.  Only one track supports SB 1070: the Palinistas. Theirs is the incoherent wing: they hate big government; want to overthrow big government; deny they want to overthrow big government; and finally, they love big government when it comes to the police state expanding executive power over minorities like immigrants.  They hate Mexicans even more than they hate the big government.

Not so the Paulistas: at least their approach is somewhat consistent: they hate big government. Period. They despise the police state and for this reason they oppose SB1070.  They are libertarian shen it comes to both economic and social policy.

I would encourage the Paulistas to join the marches and protests in Arizona. I would also encourage the mainstream media to start pressing the Palinistas on the logical inconsistency of their hate.