Detailed Abstractions

As ABC News reports, parts of Arizona’s recently enacted immigration statutes have been suspended by a federal judge (whole thing here):

Arizona’s tough new immigration law was just hours away from taking effect when a federal judge issued an injunction today blocking key portions of the law from being enforced.

Among the provisions U.S. District Judge Susan Bolton put on hold are the “reasonable suspicion” section that would allow police to arrest and detain suspected illegal immigrants without a warrant and a provision making it illegal for undocumented day laborers to solicit or perform work.

Bolton also stayed part of the Arizona law requiring immigrants to carry federal immigration documents.

Based upon the likelihood that these provisions could be used by officers to wrongly detain legal residents.

Next steps? Arizona will likely appeal and lose that appeal at the 9th Circuit Court.  The final arbiter of course being SCOTUS if they decide to take the case upon any further appeals.

Legally speaking, it’s an interesting question.  Basically, one of the powers the federal government holds is over immigration status and therefore it can be legally argued that Arizona has overstepped its authority (regardless of whether legal citizens will be wrongly detained).  However, does this mean a state has no resource against illegal aliens if the federal government is doing a poor job at the very responsibility they are stating they have absolute authority over.

More interesting I think will be the upcoming round of debates on a continuing question:  What is judicial activism and who is and isn’t exactly against it?

& the question isn’t an easy one.   Two fairly recent decisions can illustrate the complexity.  For most of recent memory, conservatives have been leading the charge against judicial activism.  But take a case like Kelo v New London where conservative outrage notwithstanding, the court followed the restraint pattern by enforcing prior precedence.

Move forward to McDonald v the City of Chicago and whether conservatives think so or not, a federal decision has invalidated a law the citizens of Chicago seemed to agree (based upon the fact they have recourse through voting)…. this would be judicial activism.

In most people’s minds it seems judicial activism is only wrong when a law your side has passed met its end through the legal system, otherwise it’s always wise restraint or cautious interference.

But let’s call it what it is:  judicial activism is when the court system invalidates the will of the voters.  This is true whether they invalidate gun laws, marriage statutes or amendments, immigration laws, sodomy laws, marijuana laws, and on and on and on.

Let’s further assume no one is really against all judicial activism.  I think most reasonable people can agree that say if judges were to invalidate the intermittent of Japanese-Americans during WWII, it would’ve been both activist and morally correct.  Even if most people couldn’t agree on that, we can all envision unjust laws which should not stand.

If we can allow for that definition, the maybe we can change the question as well.  Instead of – are you for or against judicial activism – to – how and when should judges be activist; we might begin to move towards a more reasoned debate.

So let’s call this one what it is – judicial activism and ask, should it have been used?  Why/why not?

I for one want to see judicial activism to always err on the side of individual rights and freedoms, not collections, groups, NOGs, nor government agencies.  This case gives me pause either as I am supporting of Arizona’s rights, the freedom of those individual voters to enact the laws they wish, but also am against current immigration policy.  For now, the voters spoke and I would err on the side of those individuals.

Others of course will draw the line in different places.

What’s important however is that we understand the line exists, instead of continuing to pretend it moves based upon our wishes.

more here on the debate: Reason’s July Cover Story Conservatives v. Libertarians

As you might have noticed, I’ve stayed away from writing about the Arizona immigration bill.  I’ve done so because I have little understanding on what it means to live close to a border where millions of immigrants cross illegally each year.  I don’t know the pain experienced by this massive influx, nor do I really know what has and hasn’t been tried to resolve those pains.

Lastly, I’m honestly not in the habit of arguing against a specific state law, unless it’s clearly anti-freedom.  For instance, when an idiotic Senator proposes a complete ban on a specific crib because of 32 infant deaths since 2000 – I rightfully call her out (here).   Meaning that generally speaking, I don’t see the Arizona law as anything immoral or anti-freedom and my lack of real world understanding has kept me out of this debate.

That was until I learned, thanks to the unprecedented outpouring from world leaders, that this Arizona thing…. well, apparently it has far reaching consequences.

To start with – I think this is the very first time an American president has come out so strongly against a state law based solely on premonition (here via Raw Story).  According to our new pre-crime way of thinking, this law has got to be stopped by any means necessary, because as President Obama states:

I think the Arizona law has the potential of being applied in a discriminatory fashion. Now, after it was initially passed, the Arizona legislature amended it and said that this should not be carried out in a discriminatory way. But I think a fair reading of the language of the statute indicates that it gives the possibility of individuals who are deemed suspicious of being illegal immigrants from being harassed or arrested. And the judgments that are going to be made in applying this law are troublesome….

To translate, this roughly means – “it (the law) might be used for discriminatory purposes, therefore it’s wrong”.    Which would be a very valid argument for a law which say…. kept blacks out of school, but for a law only meant and written to enforce the current immigration laws, he’s basically trying to block a state law because it might be abused.

Additionally, the legal system itself is and has been open for discriminatory abuse by those in appropriate positions who are willing to use their authority towards discriminatory ends.  You see, where there are so many laws on the books that necessitate selective enforcement, then you automatically end up leaving the selection process to those on the ground.

To clarify:  I don’t believe law enforcement professionals are racists or tend to abuse their power en mass & I don’t believe this AZ law will necessarily be used in such a way.  My only point is when every single car on the highway is driving at least 10 miles per hour over the speed limit, those with the power to enforce the law can do so selectively.  This by its very nature allows for discriminatory practices.

It would be interesting to hear  President Obama make such a case, but that’s not the main thrust of his argument.  His argument is guilty until proven innocent.

Lastly, Mr. Obama, don’t we have other things to worry about?  Like two active conflicts?  Continuing terror threats at home?  Economic & health care “crises”?

But what really has me perplexed is the president from our southern neighbor, Mexico.  Apparently, the Arizona law is so horribly wrong, he had to take lots of time, to address international press both here @ a home and to address Congress as part of an active & aggressive PR campaign against the AZ law (here via The Arizona Republic):

WASHINGTON – Mexican President Felipe Calderón harshly criticized a new Arizona immigration law in an address to Congress on Thursday, saying it “ignores a reality that cannot be erased by decree.”…

Now to be fair I agree with that quoted portion; which is our current immigration policy stance by default, ignores the reality on the ground.  With all due disrespect to Mr. Calderón however, I don’t think he gets the reality either.

He is, not only a world leader (very tenuous use), but specifically the leader of Mexico.  A country with a higher murder rate than some active war zones have deaths.  A country whose police force and justice system is either completely corrupt or completely unable to deal with organized crime.  A country whose citizenry, run as fast as possible, by any means possible to the closest possible safe haven, even knowing they will actively face many additional hardships through their actions.   A quick skim through reports (here via Stratfor or here via the Economist) will give you ample reason why this is so.

Yet, Mr.  Calderón’s worries are about an AZ law and our freedom to arm ourselves:

…his request that Congress do something about the availability of high-powered weapons along the border….

Maybe he’s completely unaware that it is illegal in the US to buy the weapons many organized criminals use in Mexico such as hand grenades, rocket propelled grenades, and automatic weapons.

Irregardless of Mr.  Calderón’s understanding of US gun laws, the citizens of Mexico would be better served if their leader spent time repairing his country, instead of  throwing boulders from a glass house.

Given the current urgent competing priorities for both countries, combined with both presidents having a laser like focus on this issue, I think there really remains one question:

What is their (Obama, Calderon, etc) fear?