Jim Terry
A consequence...
By Jim Terry
October 9, 2010

Lindsey Graham, the faux Republican senator from South Carolina, justified his vote to confirm political activist and non judicial experienced Elana Kagan to the U. S. Supreme Court a few months ago by saying, "Elections have consequences." Indeed they do. And as we approach the November elections, voters need to remember that elections have consequences.

Ten years and eight days after she was nominated to a federal court bench by Bill Clinton, Judge Susan Bolton ruled that most parts of Arizona's S.B. 1070- a bill to enforce the laws the federal government refuses to enforce- are preempted by federal law.

The issue of enforcement of illegal immigration has been in a confused state since Congress passed the Simpson-Mazolli Act (Immigration Reform and Control Act of 1986) which granted amnesty to the estimated three to four million illegals then in the United States, placed sanctions on employers who employed illegals and was supposed to clear the air. Unfortunately, no administration after passage of that act has been enthusiastic in enforcement, including the Reagan administration.

Rather than attempt to read the U.S. Code and see what federal law says regarding illegal immigrants, I urge you to read Judge Bolton's opinion. And when you find just what little our politicians in Washington care about the sovereignty of this nation, as reported in her opinion, you should be mad or angry, whichever your blood pressure will take.

The opinion talks about the "complex and detailed statutory framework regulating immigration" and the preemption of state laws in the presence of a "comprehensive federal scheme."

The judge is correct, federal law is complex, made so by the politicians and bureaucrats who write the laws. And the comprehensive federal scheme in this case seems to be a bait and switch scheme by Washington politicians.

Citing the Immigration and Nationality Act, Judge Bolton opines, "Unlawful presence in the United States is not a federal crime, although it may make the alien removable." Note the part after the comma, "although it may make the alien removable." Most states, if not all, have laws on forcible entry and forcible detainer, otherwise lumped under the term 'eviction.' These are civil matters.

It is inconceivable that the presence of a foreigner in the United States without proper documentation should be treated as a civil matter and not a criminal matter when, according to Judge Bolton, again citing the United States Code, "unlawful entry is a federal crime."

Under current law, the Department of Homeland Security has set up an organization, the Law Enforcement Support Center (LESC), administered by Immigration and Customs Enforcement (ICE), "...that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity." (USA v State of Arizona)

The United States uses the argument anti-gun folks use regarding states which adopt conceal carry laws: that crime will go on a rampage and gun deaths will skyrocket under concealed carry handgun laws-which hasn't happened. Holder, Obama and the United States Government argue that the LESC will become so burdened with requests for alien status resulting from Arizona's law that government priorities, the use of LESC to provide that same information to federal agencies-FBI, Secret Service, and "...employment-related requests at national security related locations that could be vulnerable to sabotage, attack, or exploitation,"will require the shifting of federal resources away from those priorities to fulfill Arizona's mountainous requests for alien status. This burden on federal resources, the judge says, "infers preemption."

Another contention in the federal lawsuit against the people of Arizona is a portion of Arizona's law addressing employment of illegal residents. The court cites the IRCA and says that while the focus of that act was employer sanctions, Congress added some specific employee sanctions. Then Judge Bolton cites a case from the Ninth Circuit Court of Appeals, "While Congress initially discussed the merits of fining, detaining or adopting criminal sanctions against the employee, it ultimately rejected all such proposals." The court in National Center for Immigrants' Rights found that the determination to reduce or deter employment of unauthorized workers by sanctioning employers, rather than employees, was "a Congressional policy choice clearly elaborated in IRCA. Id. at 1370."

We didn't need the Ninth Court of Appeals in California to tell us that the U. S. Congress is ultimately the rotten core of the apple. Look at its job approval rating which has hovered around twenty per cent for years, with one recent poll recording an eleven per cent rating. Between seventy and eighty per cent of Americans believe Congress stinks.

The federal government, in the matter of immigration, is worse than the kid who brings the bat to the sand lot baseball game. When the kid can't hit the ball, he threatens to take his bat and go home. In the case of immigration, the federal government whines it has the exclusive power- the bat- to enforce immigration law, but refuses to use the bat.

Judge Bolton writes, "If enforcement of the portions of S.B. 1070 for which the Court finds a likelihood of preemption is not enjoined, the United States is likely to suffer irreparable harm" because Arizona's enforcement of its law would "undermine" the federal government's ability to enforce its own laws. The reason the State of Arizona passed S.B. 1070 is because the United States is already suffering irreparable harm from failure of the United States to enforce its immigration laws.

In September 2009 I requested certain information from the Selective Service System regarding convictions of illegal immigrants for failure to register. U.S. law requires males between the ages of eighteen and twenty-five, with a few exceptions, to register with the Selective Service System, including illegal immigrants. Failure to do so is a federal crime with a penalty of up to five years in a federal prison and a fine up to $250,000-it is a criminal act to not register.

I received the following response from the Selective Service System:

    There have only been 20 cases since Selective Service came out of deep standby in the spring of 1980. The Government won them all as of the mid 1980s: 15 were convicted and the other 5 registered while their case was going to court.

    The Department of Justice policy regarding Selective Service registration enforcement, dated August 1998:

    In a future crisis, it is the Government's objective to conduct a fair, equitable, and timely draft when so ordered by the Congress and the President. To that end, timely, universal, peacetime registration is required by law of all male U.S. citizens, 18 through 25 years old, as well as draft-age male aliens residing in the U.S. (other than non-immigrants). The goal is maximum nationwide compliance, not judicial punishment.

    The Selective Service System reports that more than 90 percent of those required to register have done so. It is believed that most men who fail to register are not willfully attempting to evade their obligation under Federal law; rather, they do not know about the requirement or are indifferent to it. Under these circumstances, the Department of Justice (DOJ) has determined it is inappropriate to call the overburdened criminal justice system routinely into play.

    At present, DOJ is not prosecuting men who fail to register with the Selective Service System upon reaching age 18. However, because prosecutions could resume promptly should circumstances change and the need arise, men who do not register still risk prosecution.

    However, all men should be reminded that the Congress has connected certain benefits and programs to registration. A man must be in compliance with the Military Selective Service Act to qualify for student loans and grants, remain eligible for most federal jobs, or to obtain job training under the Job Training Partnership Act. Many states have similar laws connecting eligibility for state programs and benefits to the Federal Selective Service registration requirement. Additionally, draft-age male immigrants who seek U.S. citizenship must be registered before their citizenship applications can be processed.

    DOJ confirmed that its policy of not prosecuting non-registrants remains in effect. It is based upon the belief that it would serve no good public purpose to prosecute now because:

    U.S. Attorneys are overburdened with higher priority cases; resources are limited.

    There will be no draft for the foreseeable future.

    Selective Service enjoys relatively high registration compliance.

    Most non-registrants are not willfully or knowingly failing to register.

    Non-registrants already face the "punishment" of denied government benefits/programs.

    Again, it is noted that because prosecutions could resume promptly should circumstances change and the need arise, men who do not register still risk prosecution.

    Selective Service does not collect information to classify immigrants as illegal aliens; therefore, there is no data.

    Thank you,

    Public Affairs SpecialistSelective Service SystemNational Headquarters | Public and Intergovernmental Affairs

Since the federal government does not know how many illegal entrants reside in the United States, nor does it know who they are, how can the government be so positive that most illegal resident men register for the draft?

The State of Arizona has appealed the lower court's injunction against portions of S.B. 1070 and asked for an expedited hearing with the following schedule: Opening Brief due August 12, 2010; Response Brief due August 26, 2010; Reply Brief due September 2, 2010; Oral Argument, week of September 13, 2010.

However, the motion for expedited hearing was denied and the court set the following schedule: opening brief and excerpts of record due not later than August 26, 2010; answering brief due September 23, 2010 or 28 days after service of the opening brief, whichever is earlier; optional reply brief due within 14 days after service of the answering brief; the case is set for hearing the week of November 1, 2010. Which means the Ninth Circuit Court, for reasons known only to those liberal judges, conveniently delayed its decision against the State of Arizona until after the November election.

Can we speculate the Ninth Circuit Court, a court widely known for its wacky, out of step with mainstream America- and sometimes with reality- opinions, made up of liberal, agenda driven lawyers who knew a senator, has some motive for not ruling on this case until after one of the most important elections in my lifetime? How will the consequences of prior elections play out through their actions?

© Jim Terry


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Jim Terry

Jim Terry has worked in Republican grassroots politics for 40 years. Terry was an administrative assistant to a Republican elected official in Dallas for twenty years. In 1996, he ran for and was elected to Justice Court 2 in Dallas County where he served eight years. Contact Jim at tr4guy62@yahoo.com


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