The Arizona Decision Is A Mixed Bag For Obama And Arizona

The Supreme Court left the most important part of SB1070 intact, but it faces serious challenges in the future.

As James Joyner noted this morning, the Supreme Court handed down its decision in the lawsuit challenging Arizona’s controversial immigration law today, and many are having a tough time determining whether to characterize this as a win or a loss and for whom, largely because the case was a mixed bag for all parties involved:

The Supreme Court on Monday delivered a split decision on Arizona’s tough 2010 immigration law, upholding its most controversial provision but blocking the implementation of others.

The court unanimously sustained the law’s centerpiece, the one critics have called its “show me your papers” provision. It requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if there is reason to suspect that the individual might be an illegal immigrant.

The justices parted ways on three other provisions. Justice Anthony M. Kennedy, writing for five members of the court, said the federal government’s broad powers in setting immigration policy meant that other parts of the state law could not be enforced.

“The national government has significant power to regulate immigration,” Justice Kennedy wrote. “With power comes responsibility, and the sound exercise of national power over immigration depends on the nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”

“Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law,” Justice Kennedy added.

The decision was a partial victory for the Obama administration, which had sued to block several parts of the law.

In a statement released later on Monday, President Obama said that he was “pleased” with the Court’s decision to strike down some aspects of the law, but he voiced his concern about the remaining provision.

“I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like,” Mr. Obama said. “Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans.”

Monday’s ruling was a partial rebuke for state officials who had argued that they were entitled to supplement federal efforts to address illegal immigration.

(…)

The three provisions blocked by the majority were: making it a crime under state law for immigrants to fail to register under a federal law, making it a crime for illegal immigrants to work or to try find work, and allowing the police to arrest people without warrants if they have probable cause to believe that they have done things that would make them deportable under federal law.

Because of the fact that the most controversial part of the law, the provision that allows Arizona police to verify the immigration status of someone detained or stopped on another charge, was upheld many are characterizing this as a win for the state of Arizona and only a partial victory for the law’s opponents. That’s certainly the tack that Greg Sargent seems to take in his post on the decision:

There are several problems here. The first is that this could lead to racial profiling, says Marshall Fitz of the Center for American Progress. “It’s not a sweeping victory for the other side, but the provision we most worried about was the one giving cops the ability to stop people and ask for their papers,” Fitz says. “We think this will lead inevitably to racial profiling, based on the way they sound and the way they look.”

Second: The fact that the High Court has suggested that there are ways for states to implement and/or interpret this law could encourage other states to try their own versions of it, rather than dissuade them from doing so. Efforts to emulate the Arizona law are already underway in a handful of states.

“There are lots of Joe Arpaios out there,” Fitz says, in a reference to the Arizona sheriff. “States will say, `Look, they upheld this.'”

That is certainly a concern and, indeed, the Court itself, in the majority opinion notes that there are still significant concerns about how this particular part of the law will be enforced and even whether it can ever possibly be enforced in a non-discriminatory manner. Here’s how Justice Kennedy put it while addressing that particular issue:

Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immigration status would raise constitutional concerns. See, e.g., Arizona v. Johnson, 555 U. S. 323, 333 (2009); Illinois v. Caballes, 543 U. S. 405, 407 (2005) (“A seizure that isjustified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”).And it would disrupt the federal framework to put stateofficers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV-C, supra (concluding that Arizona may not authorize warrantless arrests on the basis ofremovability). The program put in place by Congress doe snot allow state or local officers to adopt this enforcement mechanism.

But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if thereis reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigrationinquiry. See Reply Brief for Petitioners 12, n. 4 (“[Section2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or practicable”); cf. Muehler v. Mena, 544 U. S. 93, 101 (2005) (findingno Fourth Amendment violation where questioning about immigration status did not prolong a stop).

To take another example, a person might be held pending release on a charge of driving under the influence ofalcohol. As this goes beyond a mere stop, the arrestee(unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B)that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate astatus check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention.

However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives.

The important thing to remember about this case, of course, is that the the issues before the Court were very narrow. The only question was whether the contested provisions of the law should be struck down because they are pre-empted by Federal Law on the subject. With respect to the three provisions that were struck down, each of which essentially attempted to make being an undocumented immigrant a violation of state law, the Court found that Federal law in the area of immigration pre-empted the states from making such a law.

With regarding to the “show me your papers” part of the law, though, the Court unanimously held that there was no pre-emption which seems like the right decision. The act of a state or county police officer checking to determine if a person is in the country legally doesn’t strike me as something that interfers with the operation of Federal Law at all.

However, when it comes to this provision of the Arizona law, it’s worth noting that Arizona has barely won half the battle here and that we are likely to see additional litigation out of the state based primarily on the manner in which this law is enforced. As I noted in my post about the oral arguments in this case, the Federal Government made clear that it was not basing its challenge to any provision of SB1070 on allegations of  racial profiling or the possibility that the law will be disproportionally enforced against people of Hispanic decent. These are grounds on which the “show me your papers” provision would seem to be particularly vulnerable. At the same time, though this type of argument cannot be made until the law is actually being enforced and their is actual evidence of discriminatory patterns, or profiling, that can be presented to a Court. The Supreme Court’s decision seems to make clear that the law is likely to face scrutiny on these grounds at some point in the future, and Arizona is likely to have a tough time indeed fighting allegations that Hispanics are disproportionally impacted by the law.

On the whole, then, it would seem that the Court got the case mostly right and that we’ll have to wait for future litigation to determine the true Constitutionality of the “show me your papers” provision. Politically it is, as I noted, largely a mixed bag for both the Administration and the State of Arizona.

Here’s the opinion:

Arizona v. United States

FILED UNDER: Barack Obama, Borders and Immigration, Law and the Courts, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Jib says:

    This is a mixed bag only if you are pre-disposed to Obama losing. It was a pretty clear win for Fed power on immigration. They only said they are open to the checking of immigration status by state officials but it depends on how it is done. Basically threw it back to the lower courts for a case by case review.

    Now politically, it is a mixed bag in that 70% of voters were favorable to Arizona’s immigration law. Probably would hurt Obama except for that whole electoral college thing. This helps in Florida and if Obama wins Florida then it is game over.

    Karma baby, repubs should have got rid of the electoral college after 2000 when dems wanted to, its going to bite them hard in 2012.

  2. PD Shaw says:

    @Jib: If you agree that it depends on how its done, then you must disagree with the administration’s decision to try to enjoin that provision. The administration sought to enjoin that provision (as a facial challenge) on the grounds that it didn’t matter how it was done.

  3. Raoul says:

    Arizona cannot preempt federal law=Arizona loses.

  4. legion says:

    @Jib: Doug is letting stenographers like Sargent do the analysis for him…
    @PD Shaw: Yes, that is how it’s done, and yes, the admin should have either expanded their complaint to address the ‘papers please’ provision or not attacked it in this specific case. I suspect that, given the tenor of this court, they didn’t have a lot of confidence that it would rule this way, despite the clarity of this ruling’s correctness.

  5. @legion:

    I am perfectly capable of reading the Court’s opinion myself.

    Also, it would have been impossible for the Government to challenge the “papers please” provision at this point in the case because the law has not gone into effect due to a Federal Court injunction and you cannot simply assume that it will be applied in a discriminatory manner.

  6. PD Shaw says:

    What’s the proper math here?

    The administration sought to enjoin the effectiveness of the entire law.
    The district court found that only six actual statutory provisions were mentioned in the briefing, and agreed with four of them.
    As did the Ninth Circuit.
    The SCOTUS agreed with only three.

    The administration clearly wanted the whole law ruled invalid, including the provisions concerning sanctuary cities that were never enjoined, and prevailed on three provisions.

  7. HarvardLaw92 says:

    The spin on this one is predictable, but still amusing.

    Law enforcement officers have long been empowered to check immigration status in the course of an unrelated detention. SB 1070 didn’t give them that power – in that respect it reiterated an existing truth – and that makes this provision of the law entirely redundant. Of course SCOTUS upheld that portion – it wasn’t ever in question to begin with.

    There is no way to view this other than that the states rights position advanced by Kris Kobach (via AZ) got stomped on by the court. Since that was the crux of AZ’s grievance / justification for its actions, this can’t be viewed as anything other than a resounding defeat for AZ (and the for other states that have implemented Kobach’s boilerplate as well).

  8. HarvardLaw92 says:

    Interesting question for the readers:

    Why, instead of going off on this doomed states rights fantasy, didn’t the AG of Arizona (in concert with other affected / like-minded states) simply bring suit against the federal government to compel enforcement? It’s not as though they don’t have a legitimate grievance, so such a case would have had a compelling position.

    (Hint: I suspect that the answer lies in that path having little to no political value, but feel free to advance your own analysis)

  9. Jenos Idanian #13 says:

    Secretary Napolitano has just announced that ICE will refuse to take “most” of the calls from Arizona law enforcement officials who seek to inform them they have likely illegal aliens in custody.

    This is of a piece with a very, very disturbing trend in the Obama administration: if they don’t like a law, they will just ignore it.

    1) War Powers Act. Totally ignored in the UnWar on Libya.
    2) Defense of Marriage Act. Won’t offer a defense if it’s legally challenged.
    3) DREAM Act: Unpassed by Congress, still partially implemented by Obama.
    4) Other immigration laws: they not only refuse to enforce them, but are fighting to keep anyone else from doing so.

    It’s almost like Obama thinks he has some kind of “retroactive veto” that lets him arbitrarily strike down existing laws that he doesn’t like.

    The one consolation I have: this could set a truly entertaining precedent for President Romney to do the same to laws like ObamaCare. Romney says he’ll gut it by granting waivers to every single state, destroying the individual mandate, but this could work even more effectively.

  10. al-Ameda says:

    @Jenos Idanian #13:

    This is of a piece with a very, very disturbing trend in the Obama administration: if they don’t like a law, they will just ignore it.

    Isn’t that what the over 700 of signing statements that President Bush issued were all about?

  11. Jenos Idanian #13 says:

    @al-Ameda: You wanna put an action to any of those signing statements? You wanna cite an example of Bush not just saying “I might not accept this law,” but actually refusing to enforce it?

    More to the point, those signing statements were on laws presented to Bush. Obama’s blowing off EXISTING laws. Like I said, he thinks he has a retroactive veto pen.

  12. HarvardLaw92 says:

    @Jenos Idanian #13: I think it’s more a case of him not enforcing the laws in the manner in which you want them enforced.

    The Constitution gives you an avenue to express that grievance. We call it a vote.

  13. Jenos Idanian #13 says:

    @HarvardLaw92: Exactly how did Obama enforce the War Powers Act in regards to Libya?

    And how is he enforcing the immigration laws that Arizona tried to parallel when it was clear the Obama administration wasn’t going to enforce them?

  14. jan says:

    @Jenos Idanian #13:

    It’s called, enforcing the laws you like, and ignoring the ones you don’t.

  15. michael reynolds says:

    @Jenos Idanian #13:

    You wanna cite an example of Bush not just saying “I might not accept this law,” but actually refusing to enforce it?

    Easy: Laws against torturing prisoners.

  16. HarvardLaw92 says:

    @Jenos Idanian #13:

    1) War Powers Act. Totally ignored in the UnWar on Libya.

    How, specifically? WPA gives the President unilateral authority to engage in hostilities for up to 60 days, with a further 30 days for withdrawal, without the consent of Congress. All he is required to do during this period is to inform Congress within 48 hours of engagement.

    2) Defense of Marriage Act. Won’t offer a defense if it’s legally challenged.

    Actually, DOJ has only taken this position with respect to Section 3 of the Act, and on a defensible basis – the Section is arguably unconstitutional. It violates Equal Protection.

    3) DREAM Act: Unpassed by Congress, still partially implemented by Obama.

    Prosecutorial discretion. While I will agree that this was a political move by Obama intended to shore up the Latino vote and to prevent Romney by doing the same by blocking his attempts to moderate his primary positions on immigration, we also have to acknowledge that Rubio & Kyl were busily trying to implement the exact same policy mandates, and for the exact same reasons – to attract Latino voters and to give Romney a path to moderating his immigration stance. if you are going to complain about politics, at least do so consistently.

    4) Other immigration laws: they not only refuse to enforce them, but are fighting to keep anyone else from doing so.

    Again, interesting. Deportations seem to be at their highest level in decades under Obama, so clearly somebody is enforcing them.

    What they fought to prevent is states thinking that they can do end runs around the Constitution whenever they feel like it. Arizona basically decided to pitch the ball and attempt to nullify Article 1, Section 8. It lost, resoundingly, as it should have. The Constitution is not a suggestion or a best effort, and states don’t get to opt out, a la carte, from the provisions with which they are unhappy.

  17. HarvardLaw92 says:

    @Jenos Idanian #13:

    You wanna cite an example of Bush not just saying “I might not accept this law,” but actually refusing to enforce it?

    Sure. Bush seemed to feel like FISA didn’t apply to his administration. He not only routinely ignored it; he had his policy advisers draft opinions about why the law didn’t even apply to his administration. I mean sheesh, if you are going to complain, I’d say that’s worth complaining about.

  18. Raoul says:

    For better of for worse this country has never declared war since 1945-so that part of the constitution seems abrogated at will. The truth is that there are so many federal laws that not all are enforced all the time. I am waiting for a DA to go against all the elderly who import drugs from Canada.

  19. HarvardLaw92 says:

    @Jenos Idanian #13:

    “Exactly how did Obama enforce the War Powers Act in regards to Libya?”

    WPA is a regulatory matter. It’s not up to Obama (or indeed any president) to enforce it. It’s up to them to abide by it.

    How, exactly, do you believe that it was violated?

    “And how is he enforcing the immigration laws that Arizona tried to parallel when it was clear the Obama administration wasn’t going to enforce them? ”

    As noted, deportations are at their highest level in decades. Clearly, someone is enforcing the law.

    Again, states disliking something does NOT give them an end run around the Constitution. Immigration matters are reserved solely to the federal by the Constitution. What Arizona’s motivations for trying to nullify that might have been are immaterial – it violated the Constitution by even trying.

  20. Jenos Idanian #13 says:

    @HarvardLaw92: How, specifically? WPA gives the President unilateral authority to engage in hostilities for up to 60 days, with a further 30 days for withdrawal, without the consent of Congress. All he is required to do during this period is to inform Congress within 48 hours of engagement.

    We started bombing Libya on March 19.

    On Day 60 (May 20), Obama said that it didn’t apply because NATO was running things, not us. A truly novel interpretation.

    On June 15, the Obama administration gave Congress a paper detailing why the War Powers Act didn’t apply.

    Day 90 was June 19.

    The intervention stopped on October 31 (Day 238).

    At no point did Congress grant its approval.

  21. HarvardLaw92 says:

    @Doug Mataconis:

    Wouldn’t you agree that the provision itself, as constructed, is largely redundant from the outset? We’ve long recognized that state and local LEOs are empowered to check immigration status in the course of an unrelated detention, so I don’t see where AZ is making any new assertions here. It’s simply reiterating the obvious – which makes the section redundant.

  22. mattb says:

    @HarvardLaw92:

    2) Defense of Marriage Act. Won’t offer a defense if it’s legally challenged.

    Actually, DOJ has only taken this position with respect to Section 3 of the Act, and on a defensible basis – the Section is arguably unconstitutional. It violates Equal Protection.

    Further, while it is not defending the law (and note that it informed Congress and documented the procedure to appoint representation, which Congress did), when last I checked the Department is still enforcing DOMA.

    BTW, for those keeping count, in his first for years GWB issued 87 signing statements (which are quite similiar to the issues that Jenos brings up here), so far Obama has issued approximately 20. Again, this doesn’t excuse executive overreach/power grabs, but it contextualizes them.

    And ironically, Jenos apparently supports Romney’s promise to issue Waivers (again a similiar use of executive power)… so that basically again demonstrates that he’s a partisan at heart — its only bad when my party isn’t doing it.

  23. mattb says:

    @Jenos Idanian #13:

    At no point did Congress grant its approval.

    Fair point. Though considering that this (2011) was well after the Republicans took the house with a solid majority, doesn’t that make those representatives somewhat culpable in the act?

    This is the great problem — all too often, regardless of which party occupies the big seat, neither party, despite their campaign promises, ever seems too keen to curtain executive power (this btw is one of the reasons I support the entire F&F inquiry).

  24. HarvardLaw92 says:

    @Jenos Idanian #13:

    “On Day 60 (May 20), Obama said that it didn’t apply because NATO was running things, not us. A truly novel interpretation.”

    And an accurate one. We were not engaged in hostilities.

    What I found amusing was the House leadership pulling a bill which asserted your argument, precisely because they were afraid that it would pass. They’ve been busily (HR 1540) doing their best to expand presidential authority to use military force against any suspected terrorist without the consent of Congress, and in this case their own Libya position threatened their own HR 1540 position.

    They can’t have it both ways. Frankly, the idea of Republicans vehemently arguing against expanded presidential authority under Obama, when they fell over themselves to justify expanding it under Bush, is pretty amusing.

  25. jan says:

    @HarvardLaw92:

    Regarding theForeign Intelligence Surveillance Act which you brought up as an example of a law Bush ignored. It appears that extending it’s perimeters is something Obama has pressed for and used himself.

    In the midst of the presidential campaign in 2008, Congress overhauled the Foreign Intelligence Surveillance Act to bring federal statutes into closer alignment with what the Bush administration had been secretly doing. The legislation essentially legalized certain aspects of the program. As a senator then, Barack Obama voted in favor of the new law, despite objections from many of his supporters. President Obama’s administration now relies heavily on such surveillance in its fight against Al Qaeda.

    What’s another more notable comparison and contrast between R and D administrations?

  26. HarvardLaw92 says:

    Fun question Jenos:

    NATO was enforcing a US Security Council resolution authorizing military force. Since we are signatories to both the UN Charter and to NATO, aren’t we bound by the terms of those treaties?

    Congress certainly can’t nullify treaties via statute, I’m sure you’ll agree on that.

  27. HarvardLaw92 says:

    @jan:

    Which, I’m sure you’ll agree, is how the process should work. Congress votes on an issue in order to pass applicable legislation. The Executive subsequently exerts authority within the scope of what the legislation allows.

    My gripe wasn’t that Bush conducted domestic surveillance (although I have some serious 4th Amendment problems with it) so much as he violated the existing law in order to do it.

  28. Racehorse says:

    @HarvardLaw92: What the Supreme Court really needs to address is laws that ban Happy Meals and Mayor Bloomberg’s soft drink law proposals! Now those are really unconstitutional and effect me more than anything!

  29. legion says:

    @Doug Mataconis: I see and accept the point about not being able to challenge the last provision – it shouldn’t have been an aspect of this case. But to say things like “…largely a mixed bag for both the Administration and the State of Arizona.” Is simply wrong. The only part of the law that didn’t get thrown out on its proverbial ear is the one that – as you note – cannot yet really _be_ challenged. This was as much of a win for the administration as they could realistically have hoped.

  30. jan says:

    @HarvardLaw92:

    My gripe wasn’t that Bush conducted domestic surveillance (although I have some serious 4th Amendment problems with it) so much as he violated the existing law in order to do it.

    That’s a legitimate argument. But, then isn’t Obama doing the same thing with some of his u-turns or disclaimers that he will turn a deaf ear to let’s say AZ calls for immigration help?

  31. Jenos Idanian #13 says:

    @HarvardLaw92: UN Security Council resolutions are not binding upon anyone to enforce them — otherwise, Hezbollah wouldn’t have tens of thousands of missiles in southern Lebanon in defiance of UNSCR 1701, just to name one

    Further, NATO members are only obligated to get involved if a NATO member nation is attacked.

    So, in brief: NATO was not obligated to intervene in Libya, and the US was not obligated to join in. It was strictly a “war of choice.” Therefore, the War Powers Resolution was the only binding factor in the equation. And Obama blew it off entirely.

    I expected better from someone who purports to be a graduate of Harvard Law School.

  32. HarvardLaw92 says:

    @Racehorse:

    I sort of see where Bloomberg is coming from (i.e. the city spends a truckload of money on healthcare and these things exacerbate those costs), but he went about it in an entirely bad way.

    I agree with you that he went over an acceptable line

  33. HarvardLaw92 says:

    @Jenos Idanian #13:

    Ok, let’s cede the point on WPA in the interest of brevity. Obama violated the War Powers Act. Bush violated FISA. I’ll support prosecuting one when you support prosecuting the other.

    Or we could go the fun route of discussing whether WPA is, in and of itself, unconstitutional on face. I think a pretty decent case can be made for that position, in that it breaches separation of powers. Can Congress unilaterally cede a constitutionally granted prerogative (even for a brief period of time) to another branch of government?

  34. C. Clavin says:

    A mixed bag for Obama. Maybe. I’m guessing all those folks in Arizona who don’t look like rich old white guys (Republicans), and are going to be profiled because of it, are getting riled up. It’s certainly not a mixed bag for them. I’m sure they can count on the SCOTUS to treat them right when the profiling provision comes up for review though…because the Roberts Court is all about the tired, the poor, and the huddled masses yearning to be free.

    Next up…Scalia flip-flops in order to strike down the PPACA. Stare decisis matters when it fits your ideological delusions…not so much when it doesn’t.

  35. HarvardLaw92 says:

    @jan:

    I’m not sure that we can appropriately conflate violating the law and selectively enforcing the law.

  36. Moosebreath says:

    racehorse,

    “What the Supreme Court really needs to address is laws that ban Happy Meals and Mayor Bloomberg’s soft drink law proposals! Now those are really unconstitutional and effect me more than anything!”

    I’m not surprised. Your commentary frequently sounds like your main meals (when Mommy doesn’t cook for you) are Happy Meals.

  37. Jenos Idanian #13 says:

    @HarvardLaw92: FISA? Was that when the Bush administration tapped the calls of known terrorists when they called people in the US?

    And you’re right about the War Powers thing; I phrased it wrong. I got stuck on the old saw about “Congress passes the law, the president enforces the law, and the Supreme Court interprets the law.” The correct term was that Obama violated the War Powers Resolution. I don’t give a rat’s patoot that Congress let him get away with it; I still found it offensive.

    I agree the Resolution is of questionable Constitutionality. However, every other president found a way to work within it without triggering a Constitutional crisis. They abided by it, but were careful to say they were acting “consistent” with it, not “in accordance” with it — so they never acknowledged its authority, leaving the possibility open for a future challenge. Obama just said “it doesn’t apply here.”

    We were not engaged in hostilities. (Referring to Libya.)

    Dude, we were dropping bombs and firing missiles at the country, in an attempt to support a rebellious force against the established government. That’s about as “hostile” as you can get.

    Ok, let’s cede the point on WPA in the interest of brevity. Obama violated the War Powers Act. Bush violated FISA. I’ll support prosecuting one when you support prosecuting the other.

    So, you’re outsourcing your conscience to me? I get to decide when you get upset about something, and when you’re not? You don’t make those decisions on your own?

    OK, I’m starting to believe you’re a Harvard Law graduate. You don’t have any actual opinions or principles of your own. At least, none that you’re willing to stand up for here. Instead, you just go for knee-jerk responses that you don’t really believe in, just what might win the argument for you.

    Thanks for giving me so much power over you, Counselor. I’ll think real hard about not abusing it.

  38. HarvardLaw92 says:

    @Jenos Idanian #13:

    FISA? Was that when the Bush administration tapped the calls of known terrorists when they called people in the US?

    You do get that US nationals located within the US were often on the other end of those calls, right? It doesn’t matter if a US national is taking to Satan himself. You need a warrant to conduct domestic surveillance on US citizens. Heck, the statute even sets up what amounts to a star chamber court, which meets in secret and doesn’t publish records of its proceedings to issue such warrants. It also rarely refuses them. The Bush admin just couldn’t be bothered, and that violated the law.

    I don’t give a rat’s patoot that Congress let him get away with it; I still found it offensive.

    No argument. I found it offensive when Reagan violated it in El Salvador. I found it offensive when Bush decided to conduct what amounted to illegal surveillance on US citizens. If you are going to go off of this respect for the law thing, at least have the intellectual honesty to be consistent about it.

    However, every other president found a way to work within it without triggering a Constitutional crisis.

    As noted, no. Reagan violated it. Clinton violated it. We’re working on the stipulation (which I just don’t feel like arguing ad infinitum) that Obama violated it. Again, if you propose to feign outrage at the law being violated, be consistent about it.

    So, you’re outsourcing your conscience to me? I get to decide when you get upset about something, and when you’re not? You don’t make those decisions on your own?

    Not at all. It’s just not worth going 20 rounds with you on whether or not Obama violated the WPA. So I’ll just cede the point, partly because it saves me the irritation and partly because it sets up my larger argument that you’re selectively deciding which presidential acts offend you and which don’t based on your own sense of partisan hackery. I don’t do anything without a purpose in mind.

    OK, I’m starting to believe you’re a Harvard Law graduate. You don’t have any actual opinions or principles of your own. At least, none that you’re willing to stand up for here. Instead, you just go for knee-jerk responses that you don’t really believe in, just what might win the argument for you.

    And, predictably, you go for the ad hominem. I think we’re done here.

  39. Jenos Idanian #13 says:

    @HarvardLaw92: I had no idea that “taking someone at their word’ was now considered “ad hominem.” Dang it, why didn’t I get the memo? Why don’t I ever get the memo?

    The argument you’re making in regards to FISA is that it’s OK to tap foreign terrorists, but we have to shut down the taps the instant they call someone inside the US. Or somehow instantly ascertain the identity and citizenship of their contacts within the US. I don’t see the logic there. The Americans weren’t targeted by the taps, and were involved in them by the legitimate targets.

    And you go off in a huff after admitting yeah, Obama probably did violate the War Powers Resolutions, but it’s no big deal because… actually, you didn’t give a reason, now that I look at it.

  40. HarvardLaw92 says:

    @Jenos Idanian #13:

    I had no idea that “taking someone at their word’ was now considered “ad hominem.” Dang it, why didn’t I get the memo? Why don’t I ever get the memo?

    Right, because “you have no principles of your own” is certainly an objective, topic focused argument.


    The argument you’re making in regards to FISA is that it’s OK to tap foreign terrorists, but we have to shut down the taps the instant they call someone inside the US.

    No, the argument I am making is that the statute, and indeed the 4th Amendment as well, demand a warrant in order to conduct surveillance on US citizens. Whether or not that is expedient is irrelevant. The law is the law, and it must be followed.

    These sort of slippery slope “well, we just don’t have time to bother with obeying the law” arguments are what lead to serious problems. Frankly, given your seeming scope lock on “Obama broke the law! Obama broke the law!”, I would think you’d agree with that.

    But, then again, that wouldn’t be expedient, would it?

  41. Jenos Idanian #13 says:

    @HarvardLaw92: No, the argument I am making is that the statute, and indeed the 4th Amendment as well, demand a warrant in order to conduct surveillance on US citizens. Whether or not that is expedient is irrelevant. The law is the law, and it must be followed.

    We weren’t “conduct(ing) surveillance on US citizens,” we were conducting surveillance of foreign terrorist suspects who occasionally came into contact with US citizens. By your standards, if we get a warrant to tap a Mafia leader’s phone, we need to get a new warrant every time he calls someone new.

    Yes, some Americans ended up on tape because of the program. But that was never the intent, and no laws were broken.

  42. HarvardLaw92 says:

    @Jenos Idanian #13:

    We weren’t “conduct(ing) surveillance on US citizens,” we were conducting surveillance of foreign terrorist suspects who occasionally came into contact with US citizens.

    If a US citizen is involved, a warrant is required to conduct or to continue surveillance. Who is on the other end of the line is immaterial. The governing factor is that a US citizen is party to the communication, therefore it is protected under the 4th Amendment. I’m not sure why this is so difficult to grasp.


    By your standards, if we get a warrant to tap a Mafia leader’s phone, we need to get a new warrant every time he calls someone new.

    Not at all. As a citizen, his communications would be covered under the umbrella of the warrant. Any offshore parties he speaks with enjoy no protections at all, and can be monitored without the necessity of showing cause. Communications between two or more offshore parties doesn’t require a warrant. ANY communication involving a US citizen does.

    Would 20 calls from a offshore terrorist to 20 different US citizens require 20 different warrants? You bet. That’s the price you pay for living under the terms of a Constitution that bars the establishment of a police state.

    Yes, some Americans ended up on tape because of the program. But that was never the intent, and no laws were broken.

    Gross rationalization. Intent is irrelevant. Once you are aware that a US citizen is involved, you obtain a warrant, period. Not to do so violates both the statute and the 4th Amendment.

    Heck, the statute even allows for said warrants to be obtained after the fact (with the caveat that cause must be established.) There is absolutely no excuse for not obtaining them. The Bush admin didn’t even try. It just made the specious argument that the law didn’t apply to it.

    Now, if the concept of a presidential administration, ANY presidential administration, arguing that it is above the law doesn’t disturb you, you have bigger problems than somebody listening in your phone calls.