“Show Me Your Papers”: The Constitution Protects U.S. Citizens From Laws Like Arizona’s
Arizona’s frustration with our nation’s dysfunctional immigration system is understandable. But its restrictive “show me your papers” immigration law is unconstitutional and un-American.
The U.S. Constitution protects and safeguards our most fundamental rights—the rights that are the bedrock of our freedom and democracy. Each of us has the right to be treated equally and fairly, and to not be discriminated against on the basis of the color of our skin or the accent with which we may speak.
Arizona’s law violates these precious Constitutional protections. Already, in Arizona and other states with “show me your papers” laws, U.S. citizens who don’t happen to carry proof of their birth in the United States in their back pockets are being treated with suspicion and are facing arrest and detention until they can convince law enforcement authorities of their citizenship. This racial profiling and assault on personal freedom and security is both unconstitutional and un-American.
The U.S. Constitution was also written to safeguard and protect our fundamental character as a nation of united states. In areas where it is important for states to determine their own policies, the Constitution protects states’ rights. But in areas where it is important that our nation speak with one voice, the Constitution prohibits states from taking matters into their own hands.
Immigration is one of those areas involving our country’s relations with foreign countries and nationals where our nation needs to speak with one voice. Just as states cannot sign their own treaties with, or declare war on, other countries, so too states cannot enact their own immigration laws. If they could, the resulting patchwork of 50 different state laws would lead to confusion, conflict, and chaos.
Other nations would retaliate and treat U.S. citizens unfairly as they travel, work and study abroad. Citizens and immigrants alike would flee from one state to another, seeking freedom from discriminatory laws. Businesses would leave states where their workers and visiting foreign managers were subject to intrusive police demands for “papers.”
The United States could not survive as two nations—one slave, one free. Neither can the United States accommodate two sets of immigration laws—one that requires the Department of Homeland Security to enforce the laws that Congress enacts, and the other that requires all of us, citizens and immigrants alike, to “show me your papers.”
By: Jeanne Butterfield, Special Counsel, Raben Group, Published in U. S. News and World Report, April 23, 2012
“Sustaining Their Prejudices”: The Arizona Immigration Law Is A Constitutional Nightmare
You thought the healthcare case created a storm. Well you haven’t seen anything yet. Next week the Supreme Court hears oral arguments on the constitutionality of SB 1070, the Arizona immigration law. Any case that involves race creates political fireworks.
The Arizona law is a constitutional nightmare.
One part of the law allows the police to hold people arrested indefinitely until their immigration status is verified. What it means is that American citizens who look like illegal immigrants because they have brown skin and who are suspected of a crime can be held indefinitely without trial. This part of the law violates the due process clause in the Fifth Amendment and the equal protection clause in the 14th Amendment. SB 1070 flushes fundamental American civil liberties down the toilet.
The Arizona law states that “the intent of the law is attrition through enforcement to deter the unlawful entry and presence of illegal aliens.” Well, you have a constitutional problem right there. Article I, Section 8 the Constitution clearly gives Congress, not the states the power “to establish a uniform Rule of Naturalization.”
The state says it had to act since the feds haven’t acted. There are several problems with this argument.
The reason that the founders gave Congress the power to regulate immigration is that there would be chaos if each of the 50 states did the same thing and created their own immigration policies.
For another thing, the logic of the Arizona argument is the same thing as saying that it or any other state could declare war against another country if Congress didn’t. Article 1, Section 8 not only gives Congress the power to set rules of naturalization, it also gives it the power to declare war. And why not let the states instead of Congress have the Article I power to coin money. Of course that would lead to economic disaster. I don’t know about you but I don’t have the math skills to figure out the exchange rate for financial transactions between Maryland and Virginia.
Finally, the state’s argument that the feds are not acting is just wrong. Illegal immigration has slowed steadily in the last few years. There has been a large increase in the number of Border Patrol agents stationed on the Mexican border. And the Obama administration has deported record numbers of illegal immigrants convicted of crimes. But supporters of SB 1070 just want to overlook the facts so they can sustain their prejudices.
George W. Bush and Barack Obama proposed a solution to the problem that doesn’t even violate the Constitution. These presidential proposals would intensify enforcement of immigration efforts at the Mexican border, penalize employers who hire undocumented workers, and create a path to citizenship for people in the U.S illegally. Congress failed to act on either of the proposed laws. Even though the two presidential proposals are similar, several GOP senators who supported the Bush proposal now oppose the Obama bill. Go figure.
After the court issues rules on the Arizona law in June, the justices should disperse as quickly as possible because whatever they do, there will be a lot of very unhappy people out there.
By: Brad Bannon, Washington Whispers, U. s. News and World Report, April 19, 2012
Tenther Judges “Radical Misreading Of The Constitution”: All Labor, Business Or Wall Street Regulation Is Unconstitutional
For more than two years, ThinkProgress has tracked “tentherism,” a radical misreading of the Constitution which claims that pretty much everything the federal government does is unconstitutional. Tenther lawmakers — who include members of Congress, senators, governors and at least one sitting Supreme Court justice — have claimed that child labor laws, Social Security, Medicare, Medicaid, clean air laws and the federal highway systemall violate the Constitution.
Even tentherism has a limit, however. While tenthers would all but eliminate our national leaders’ ability to solve national problems, they concede that state governments are still free to serve their citizens. Which is why a recent concurring opinion signed by U.S. Court of Appeals judges David Sentelle and Janice Rogers Brown is so disturbing. Under Sentelle and Brown’s vision, any attempt to protect workers, investors or consumers from unscrupulous businesses is in jeopardy:
America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.
First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. . . . Thus the Supreme Court decided economic liberty was not a fundamental constitutional right, and decreed economic legislation must be upheld against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis” for it.
To translate this a bit, Sentelle and Brown disagree with the fact that representatives chosen by the American people, rather than unelected judges such as themselves, get to decide America’s economic policy. At best, their opinion calls for a return to a discredited era when judges could simply toss out laws protecting workers or consumers that the judges did not like.
Yet Sentelle and Brown also appear to be arguing for something even more radical than that. Their opinion complains that “economic liberty [is] not a fundamental constitutional right.” “Fundamental rights” are the very most protected rights under the Constitution. The right to be free from race discrimination is a fundamental right. As is the right to criticize the government. Sentelle and Brown’s opinion, however, concerns a law that removes a loophole exempting certain dairies from a 70 year-old system regulating the milk industry. In their apparent view, a law that regulates how dairy executives operate their business is exactly as offensive as a law that bans black people from voting.
Nor would their opinion stop there. The minimum wage regulates how dairy executives operate their business. As do child labor laws. Or workplace safety laws. Or laws that prevent dairies from selling spoiled or tainted milk. In Sentelle and Brown’s America, these laws likely would also be just as constitutionally suspect as a law that gives special rights to white people and not to black people.
Nor would their opinion stop there, for, indeed, their opinion laments that “economic legislation” as a whole is left to the people’s representatives and not to judges. The likely implication of Sentelle and Brown’s vision is any attempt to protect workers, or to regulate Wall Street, or to ensure that food and drugs sold in the marketplace are safe, or to enact any law protecting ordinary American consumers must be treated with exactly the same constitutional skepticism judges would bring to a law that tosses people who speak out against President Obama in jail.
Yet for all the many, many laws they would strike down, for all the anarchy they would create by sweeping away literally centuries of regulation in a single constitutional whirlwind, one thing is conspicuously absent from Sentelle and Brown’s opinion. At no point do they cite a single word of the Constitution which supports their sweeping assault on America’s power to govern itself.
This is not a coincidence. Those words do not exist.
By: Ian Millhiser, Think Progress, April 16, 2012
“Unreasonable Search And Seizure”: Supreme Court Undercuts 4th Amendment Protections-Again
In yet another 5-4 decision of the Supreme Court, the conservatives sitting on the Roberts Court have cut deeply into our protection from unreasonable search and seizure guaranteed to Americans by the 4th Amendment to the Constitution.
As a result of today’s ruling, jailers can now perform bodily strip searches on anyone brought in to a holding cell, no matter how minor the alleged infraction. And when I say ‘minor’, I’m not talking about people arrested and held for violent or even misdemeanor drug related crimes.
I’m talking about individuals arrested for riding a bicycle without an audible bell, driving a car with a noisy muffler or failing to properly use a signal when making a left or right turn.
Seriously.
These are but a few of the offenses that were committed by people who found themselves being strip-searched and subject to the long arm of the law when that long arm intruded into personal spaces where no arm was intended to go. These were also the offenses represented in a class action brought against two New Jersey jails by Albert Florence, a New Jersey resident who was also subjected to the humiliation of a strip search—twice— for what the police believed was an outstanding warrant for failing to pay a court fine.
Florence’s ordeal began on a day in 2005 while he and his family were on his way to his mother-in-law’s home to celebrate the purchase of a new residence for the Florence family. Mrs. Florence was at the wheel of the family BMW when she was pulled over for speeding. When the police officer ran a check on Mr. Florence as the owner of the car (despite the fact that he wasn’t driving), they discovered that he had an outstanding warrant for failing to pay a fine to the Court.
Never mind that Mr. Florence, a financial executive with an automobile dealership, had, in fact, paid the fine and actually had proof of having done so in the glove box of his automobile because he feared that local police were suspicious of black men who drive nice cars. And never mind that even if the warrant had been an outstanding bench order, not paying a court fine in New Jersey is not a crime.
Florence was arrested and handcuffed as his pregnant wife and young son watched in distress.
When Mr. Florence arrived at the local jail where he was to be held pending a hearing on the warrant, he was subjected to a strip-search. And when he was transferred to a different county jail he was treated to a search of his body once again, despite the fact that, at no time since his first strip-search, was he outside the custody of the police.
During his first strip-search, Florence was forced to disrobe in front of an officer and told to lift his genitals. Upon arriving at the second jail, he was made to squat and cough in front of a number of viewers for the purpose of expelling anything that might be hidden in a body cavity.
Setting aside my curiosity as to what the cops expected to find hiding beneath his genitals, I will simply report that the local Magistrate finally ordered Mr. Florence released when he determined that Florence had, indeed, paid the fine some years before.
Still, the Supreme Court came to the conclusion that the body searches Mr. Florence was subjected to—not once but twice and despite the fact that he had been in police custody the entire time between the first and second search—were “reasonable” within the meaning of what constitutes a reasonable search and seizure for 4th Amendment purposes.
So deeply concerned was the five Justice majority for the need to keep contraband—including weapons and drugs—out of the jail system, they were prepared to relieve authorities throughout the nation of their responsibility to afford American citizens their privacy rights—even when they are hauled in for having a broken bell on a bicycle.
Writing the minority opinion, Justice Stephen Breyer argued that this behavior is not constitutionally appropriate for an individual arrested for a minor offense that does not involve drugs or violence.
“A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person’s body, is a serious invasion of privacy,” Breyer wrote. The “invasion of personal rights” at issue in this case, the dissenters argued, “is very serious and lacks need or justification — at least as to the category of minor offenses at issue.
The Court’s decision greatly expands upon what authorities can do when searching those they detain for alleged crimes, no matter how miniscule the charge may be.
In 1979, the Supreme Court upheld the policy of body cavity searches for prisoners after they had met with visitors. The theory was that the possibility of a guest from the outside having slipped an item of contraband to a prisoner posed a significant threat to the remainder of the prison population and jail officials. For that reason, the search was deemed reasonable.
However, since that decision, the principle has been widely limited so as not to to be applied to newly arriving prisoners where there was no reason for authorities to suspect that the incoming prisoner might have some item of contraband on his or her person requiring confiscation. In other words, the ‘reasonable’ standard was applied.
That limitation is no longer the law of the land.
In what is becoming a habit of some members of the conservative side of the Court who don’t appear to want to be held responsible for the bad precedents they set, Justices Roberts and Alito when out of their way to say that this practice should be limited to the case at hand and that it should not be assumed that this principle is to be applied to all searches—particularly when someone is only to be held for a short time and placed in a cell separated from the general population.
The hope is that this limiting opinion will be applied at jails throughout the country so that people held only until bond is posted will not be subjected to intrusive and humiliating strip -searches.
Just last year, the Roberts Court put another serious dent into the 4th Amendment prohibition against unreasonable search and seizure when it upheld the constitutionality of police in Kentucky entering a suspect’s home without a search warrant.
By: Rick Ungar, Contributor, The Policy Page, Forbes, April 2, 2012
“Refusing To Comply With Laws”: The Strange New Meaning Of “Religious Freedom”
Whatever ultimately happens in various ongoing collisions between conservative clergy and laws to which they object, it is clear the former have already won a significant victory in convincing millions of Americans that “religious freedom” means the right to have one’s particular religious views explicitly reflected in public policy. That is definitely the position of the nation’s Catholic bishops, who contend they should be able to operate a wide range of quasi-public services and also enjoy the use of public subsidies, while refusing to comply with laws and regulations that contradict their religious or moral teachings.
I’ve argued in the past that what the bishops are actually seeking is not “freedom” but a sort of unwritten concordat—a broad zone of immunity from laws they choose to regard as offensive. Now there is nothing terribly unusual or inherently outrageous about this desire; Vatican diplomacy for centuries has focused on the establishment of such arrangements—though typically written rather than plenary—with a wide array of governments. It’s the idea that this sort of arrangement involves “freedom” rather than frankly acknowledged special privileges that’s novel. And it leads to some rather strange conclusions, viz. this conservative post celebrating an anti-Obama protest in San Francisco and identifying special concessions to religious groups as an example of “American exceptionalism:”
Friday, one thousand Bay Area Catholics gathered outside the Federal Building in San Francisco to celebrate America’s exceptional guarantee of freedom of religion, and defend against an unprecedented assault by the Obama Administration.
The rally was among the largest of over 100 protests by Catholics around the nation on the second (ahem) birthday of Obamacare.
From the podium, Northern California Catholic religious and secular leaders openly urged citizens to register to vote and cast ballots against President Obama in the general election, in what they called an end to “quiet conformity” by religious Americans….
The City Square, a Bay Area blog, described this religious backlash as nothing less than the opening of a second front in the “war for freedom”, alongside the Tea Party movement’s economic freedom agenda.
That is indeed an apt comparison, since the Tea Party, too, has a very special definition of “freedom.”
Still, it’s odd to hear people describe the kind of concessions to broad rights of religious self-regulation that are exceedingly common in countries without a constitutional history of church-state separation as peculiarly American.
And it’s not a view that’s been smiled upon very often by the official arbitors of the Constitution, the federal courts, as Sarah Posner recently explained at Religion Dispatches:
Conservative claims of infringement of religious freedom…are on shaky constitutional footing. Although Catholic Charities lost challenges to similar policies in state courts in California and New York, several Catholic and evangelical universities have sued HHS in federal courts around the country, charging that the contraception coverage requirement violates their religious freedom. While a federal court has yet to rule on the mandate, a ruling issued late Friday night demonstrates how the claim of infringement of religious freedom undermines the First Amendment’s prohibition on government establishment of religion.
In that case, the American Civil Liberties Union had challenged an HHS policy allowing the USCCB, which received funding under the Trafficking Victims Protection Act, to refuse to refer victims of rape and sexual assault for contraceptive and abortion services. Although the Bishops and their Republican allies argue that requiring them to refer women and girls for reproductive health services amounted to a government interference with their religious freedom, Judge Richard Stearns held that allowing them to refuse to make these referrals amounted to an impermissible government endorsement of religion.
While that case would not require courts outside of Massachusetts to reach the same conclusion, or to reach the same conclusion in the lawsuits against the insurance coverage requirement, it does provide a roadmap for how a court would weigh a Free Exercise claim against an Establishment Clause claim.
Now some conservative Catholics, and many of their conservative evangelical allies (who have fully internalized David Barton’s revisionist “Christian Nation” theory that the Founders had no intention of fostering church-state separation) would view Judge Stearns’ decision as an exercise in “judicial activism” on the behalf of an aggressively “secularist” agenda. But like the Right’s redefinition of religious freedom itself, this point of view is decidedly recent in origin, and better described as “radical” than as “conservative” in spirit.
But that’s true as well of much of the American Right’s current ideological tendencies. Somehow or other, public programs as well as constitutional doctrines that the country has lived with peacefully since at least the New Deal are being denounced as involving aggressive, sinister, and even Satanic attacks on traditional liberties. That’s the connection between the protesters in San Francisco bearing “Obama the Judas of America” signs and their comrades carrying images of Andrew Breitbart outside the Supreme Court.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 27, 2012
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