US Politics: The Federal Government v. Arizona on Immigration (Haddigan)

Lee Haddigan writes for EA:

Last Tuesday, the US Department of Justice announced the much-anticipated challenge by the Federal Government challenge to Arizona’s new immigration law. In a brief filed in the Federal Court of the District of Arizona, the Department asked for a temporary enjoinment (to precede a permanent one) against S.B. 1070, due to become law on 29 July on the grounds that the legislation is unconstitutional.

US Politics: The Arizona Immigration Law (Haddigan)

If the decision to fight S.B. 1070 was expected, the grounds for the Federal Government’s case were less so: instead of opposing Arizona’s new law as an interference with the 4th Amendment to the Constiution, they decided to use the Supremacy Clause as the basis for defeating the controversial legislation. Attorney General Eric Holder said the Federal Government have not ruled out fighting S.B. 1070 over the issue of racial profiling but will wait to see how the law is implemented before a commitment to take Arizona to court over civil rights violations.

One reason for the government’s position is that the American Civil Liberties Union and other organisations, aided by a "friend of the court" brief from the Mexican Government, have already challenged the law on civil rights grounds. The federal submission has remarkably little to say on civil rights consequences --- for instance, it does not question the provision of what "reasonable suspicion" means when an officer asks to see papers showing a suspect’s immigration status --- other than to question a law that calls for the incarceration of legal citizens who may not have their residency qualifications on their person.

The brief also mentions that some illegal aliens are resident in the United States with the express approval of the federal authorities but are waiting on the necessary papers to prove that to an arresting officer. This latter point, however, is developed to add weight to the claim that the Arizona state law interferes with the aims of federal immigration legislation, a conflict of interest that is unconstitutional under the Supremacy Clause.

By invoking the doctrine that federal law pre-empts (has "supremacy" over) state law in matters concerning immigration the Obama administration has set the stage for a long drawn-out battle, with a probable final recourse to the Supreme Court. It is a conflict that will arouse passions on both sides of the debate because it deals with an issue that has stimulated political debate in the United States ever since the Constitution was ratified.

The argument revolves around how the document is to be interpreted. One side --- the originalist or strict constructionalist --- regards the words of the Founding Fathers, expressly stated, as the only basis for deciding whether or not a law is constitutional. The other --- the loose interpretation or living document side --- contends that the Constitution is only a framework that over time and changing circumstances provides a guide to making laws in modern times.

Herein lays the political importance of this particular instance of the Federal Government using the Supremacy Clause. For S.B. 1070 is constitutional, or unconstitutional, depending on which side (for originalis,t read conservative; for liberal, read living document) interprets the new law.

The conservative opponents of the recent actions of the Department of Justice will point out that the Constitution does not give the Federal Government the power to legislate exclusively on immigration measures. The 10th Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

For the originalist, since the Constitution does not delegate to the Federal Government the power to determine how immigration is to be handled, then the states have the power reserved to themselves.

Liberals contend, however, that while the Federal Government’s exclusive right to deal with immigration is not stated in the Constitution, it is implied by the Government’s right to determine the naturalization process for foreign-born citizens. Over time, the duty to ascertain how naturalization is to be awarded evolved into --- as shown by the federal laws dealing with immigration --- control over the means of deciding who can and cannot enter the United States legally.

The Supremacy Clause states that:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

The relevant part of this clause is the stipulation that "the supreme Law of the Land" shall be that "made in Pursuance" of the Constitution. Under the "loose interpretation" reasoning, the issue of immigration may not be mentioned in the Constitution, but it has become a power of the federal government through legislation on naturalization concerns as and when they arose. The brief argues that the “Constitution affords the federal government the power to “establish an
uniform Rule of Naturalization”, and as Congress has passed immigration laws dealing with the "rules of Naturalization’"those powers are now enshrined in federal law –-- the "supreme Law of the Land".

The conflict between federal v. states rights over immigration is a technical debate that will see, unless the law is invalidated on undeniable civil rights arguments, the matter go all the way to the Supreme Court. Supporters of S.B 1070 have called the federal action "baseless", with Governor Brewer of Arizona even labeling it "outrageous".  But conservative commentators have yet to concentrate their attention on two arguments in the brief that will provoke a sense of moral outrage among supporters of S.B. 1070.

The first concerns the matter of national security. The federal government is arguing that the Department of Homeland Security was established, in part, to deal with the threat immigration posed to public safety. The brief maintains that it is a federal "priority", through its “significant enforcement discretion”, to “principally target aliens engaged in or suspected of terrorism … aliens convicted of crimes, with a particular emphasis on violent criminals”.  The government’s position continues that Arizona’s law interferes with the federal "supremacy" in investigating and prosecuting the above "violent criminals" and "terrorists".

This reminds the more sedentary reader of arguments used by the FBI to take over cases from local "hick" police departments in numerous television shows and films; the local force is not capable of investigating serious crimes, and actually only makes things worse, so the federal agency (the clever guys in Washington) must intervene to save the day.  The claim of the Obama administration that Arizona cannot legislate its own state laws and use its"‘police powers" to protect its citizens from violent criminals, because it preempts the priorities of the DHS and other federal agencies, is certain to provoke indignation.

The brief continues that S.B. 1070 “will interfere with vital foreign policy and national security interests by disrupting the United States’ relationship with Mexico and other countries”.No-one doubts that the president retains all authority to deal with America’s foreign relations with other sovereign nations, but this apparent pandering to the complaints of the Mexican government, (especially in light of the country’s own alleged harsh immigration law, will not endear the administration to conservatives. With the "friend of the court" brief submitted by Mexico submitted in the ACLU challenge and President Calderon’s criticism of the law at the White House, President Obama has opened the doors for conservatives to speculate on his commitment to prioritizing the defense of American interests, a potentially damaging charge.

On the day the federal brief was filed,20  Arizona lawmakers sent a letter to the US Attorney General explaining how their bill did not violate civil rights laws, but the Supremacy Clause argument seemed to take them somewhat by surprise.

Yet that manoeuvre may backfire on the administration politicall. Even the most die-hard supporter of S.B. 1070 would admit there are concerns that the "reasonable suspicion" for asking for proof of legal residence could lead to charges of racial profiling. But, with the claim that the federal government has priority in dealing with illegal violent criminals within the borders of Arizona, the Obama administration has ensured the struggle over this new law will stir more emotional posturing.

The Latest from Iran (12 July): Holidays?

1010 GMT: Trouble in Lebanon. Green Voice of Freedom claims that followers in Lebanon of the late Grand Ayatollah Fadlallahttp://www.irangreenvoice.org/article/2010/jul/12/5221, the head of the Guardian Council, from holding the prayer of the dead (namaz-e mayyet) in South Beirut, interrupting the ceremony and causing the body to be transported to another place. Fadlallah's faithful shouted at Jannati: "Let him rest in peace, he was innocent" and "You did wrong to him, let him sleep in peace."

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The Latest from Iran (11 July): Feeling Hot, Hot, Hot

1900 GMT. And There's Larijani. Well, well, looks like Ali Larijani is making public allusions again: Speaking in Karaj, he said, "Whenever there is a revolution, some opportunists claim the heritage."

Now who could he mean?

1830 GMT: Parliament v. President. It may be a Government-declared holiday but that does not mean a cessation of criticism of President Ahmadinejad.

Hassan Sobhani alleged that the Government has ignored the approved laws by Parliament for two months and has trampled upon the Constitution. The educational commission of Parliament has sent two letters to Speaker of Parliament Ali Larijani and has complained about the breaking of law by Minister of Education Hamid-Reza Haji Babai and Minster of Science Kamran Daneshjoo.

MP Mostafa Kavakebian has criticised the President for his statement (see 0955 GMT) that the country should only have one political party, the Velayat Party. Kavakebian said, "I am ready for debate with Ahmadinejad any time and anywhere, to prove to him to improve democracy in Iran is the expansion of parties."

Parliament's Research Department has released a report criticising the Government's handling of the economy,  noting in particular the increase in  the unemployment rate.

The Department is run by Ahmad Tavakoli, a Larijani ally and alleged central figure in talks to limit Ahmadinejad's authority or even remove him from power.

1810 GMT: The Bazaar Strikes. Activists are claiming, from BBC Persian, that the Government has resolved the dispute with Bazaar vendors by reducing the tax hike from 70% to 15%.

1750 GMT: Rahnavard's Statement. The Facebook page supporting Zahra Rahnavard has posted her interview with Rooz (see 0715 GMT) and an English extract:

Lack of criticism leads to stagnation. Everyone needs to be criticized. We welcome all criticism that stems as a result of friendship and interest in the Green movement....All those who believe in change towards freedom, free elections and non interference by the government in people's personal lives are Green.

1745 GMT: The Bazaar Strikes. Back from long break for teaching in Dublin to find the reminder that, while it is quiet today, all is far from peaceful. Reuters catches up with the story that Iran's bazaars may be entering a second week of strikes.

0955 GMT: Political Move of Day. President Ahmadinejad has declared that "Iran needs only one party, the Velayat Party", and has spoken again of taking over Islamic Azad University.

0835 GMT: The Bazaar Strikes. The chatter is over  "Statement #3 of Bazaari Guilds", announcing a continuation of the Tehran Bazaar strike for Tuesday. Other bazaars from Tabriz, Mashhad, Qazvin, and Kermanshah have reportedly announced they will join the strike.

0715 GMT: Rooz Online has posted an interview with Zahra Rahnavard, activist, academic, and wife of Mir Hossein Mousavi.

0630 GMT: The Bazaar Strikes. Rah-e-Sabz is claiming that Haj Kashani, a famous fabric merchant, was killed last week by Basij militiamen who tried to disrupt the Tehran Bazaar strike.

0435 GMT: Nuclear Talk. The head of Iran's Atomic Energy Organization, Ali Akbar Salehi, is putting out the message that Tehran now has 20 kilogrammes of 20% enriched uranium.

0430 GMT: The Labour Front. Tehran Bureau features the translation of an interview with Sohrab Behdad, carried out by Deutsche Welle, on "The Green Movement and the Working Class".

0425 GMT: We may have a lighter day on the news front, partly because EA staff are on the road, partly because Iran is in its extra two-day holiday, supposedly because of the high temperatures across the country.

So we open the morning with an easy-going chuckle, we hope, looking at the continuing story of Iran's guidance on men's hairstyles and an apparent counter-attack: The Revenge of the Mullets.

Afghanistan: The Failing Strategy to Train Local Forces (Owen/Brady)

Jonathan Owen and Brian Brady write for The Independent on Sunday of London:

The strategic plan of creating an Afghan security force to replace US and British troops fighting in Afghanistan is in serious disarray with local forces a fraction of their reported size, infiltrated by the Taliban at senior levels, and plagued by corruption and drug addiction, an Independent on Sunday investigation can reveal.

And the way in which their capacity has been assessed over several years, during which time tens of billions of dollars have been spent on building up Afghan security forces, is so flawed that it has been scrapped.

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Less than a quarter of the army and less than one in seven police units are rated as "CM1" – meaning they are capable of operating independently. Yet the true picture is worse. An audit of the Capability Milestone (CM) rating system used to rate police and army units has revealed a misleading picture of the true level of progress.

Arnold Field, US Special Inspector General for Afghanistan Reconstruction (Sigar), described the system as "unreliable and inconsistent". His audit warns that Afghan military and police assessments "have overstated operational capabilities", with even the top-rated units unable to operate independently. As many as 50 per cent of police units in some areas are failing drugs tests it notes. On one occasion, coalition soldiers witnessed Afghan police openly smoking cannabis and unwilling to conduct operations or leave their compound.

The report details how army units can be as low as 59 per cent of their supposed size when it comes to going on duty. On average, only 74 per cent of Afghan soldiers in combat units were actually found present for duty, according to the report.

It warns of critical shortages of military advisers needed to "meet the demands of current force development goals", with a shortfall of more than 200 mentoring and partnering teams as of March this year.

The International Security Assistance Force's (Isaf) leaders acknowledge problems with the local security forces, as they brace themselves for an increase in attacks over the summer months. Isaf hopes to increase the combined strength of the Afghan Army and police from under 200,000 at the start of 2009 to over 300,000 next year, in the hope that this will accelerate a withdrawal of international forces from Afghanistan.

But an analysis by the IoS reveals that the true strength of the Afghan security forces – those that have been trained and judged to be able to operate independently – is barely 34,000. This is almost a seventh of the 236,000 claimed by Nato/Isaf.

Read rest of article....

Israel-Palestine Analysis: Netanyahu Manoeuvres with US & Egypt to Put PA in a Corner

UPDATE 1030 GMT: Juan Cole has posted a complementary analysis, beginning with the Palestinian Authority's position, "Abbas: Israeli Colonization Impedes Start of Direct Talks".

Israeli Prime Minister Benjamin Netanyahu is talking about bringing the Palestinians on the table for direct talks. But how?

It is reported that, following consultations with some of his ministers, Netanyahu is thinking of announcing an end to Israel Defense Force operations in a number of Palestinian cities in the West Bank. Haaretz reports, from "senior officials", other confidence-building measures:

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- Israel will enable the Palestinian police to broaden its activities beyond Area A, which is under PA security control. They would be allowed to set up six new police stations in Area B, where the PA is currently responsible only for civilian affairs, and possibly also have some authority over civilian matters in Area C.

- Israel will lift more road blocks in the West Bank.

- Israel will transfer to Palestinian control a portion of land that is currently in Area C, under full Israeli control, in order to build a road connecting Ramallah and a new city currently in the planning stage, Rawabi.

With the Palestinian Authority under pressure from the Obama Administration to start the direct talks with Israel, Netanyahu is wisely trying to corner the PA and also other possible actors such as the Egyptian Government. PA leader Mahmoud Abbas rejected Obama's approach to change his mind, but Netanyahu, at his cabinet meeting on Sunday, stated that he planned to meet President Hosni Mubarak in Egypt on Tuesday to discuss how progress in negotiations can be achieved.

What is the benefit for Egypt? At a time when channels of dialogue are open with Hamas to some extent, following the Freedom Flotilla crisis, Cairo can use this initiative to push for Hamas flexibility in a Palestinian reconciliation agreement. It can boost its regional and domestic credibility by playing the role of second mediator between Ramallah and West Jerusalem.

Asked in an interview with Fox News whether there can be a Palestinian state by 2012 (a follow-up Palestinian leader Salam Fayyad's "A Palestinian State by 2011" statement), Netanyahu said:

I think there can be a solution. It may be implemented over time, because time is an important factor of getting the solution, both in terms of security arrangements and other things that would be difficult if they're not allowed to take place over time.

Can we have a negotiated peace? Yes. Can it be implemented by 2012? I think it's going to take longer than that.

UPDATED "Praising Fadlallah" Follow-Up: The Public Apology of the British Ambassador

UPDATED 12 July: Frances Guy, Britain's Ambassador to Lebanon, has now paid public penance for her original comments --- now removed by the Foreign Office as incompatible with British policy --- on the death of Grand Ayatollah Fadlallah.

Guy's latest entry in her Foreign Office blog, "The Problem with Diplomatic Blogging", no longer makes any reference to Fadlallah and the possibilities of inter-faith discussion, "a real debate, a respectful argument" and "leav[ing] his presence feeling a better person". Instead:

UPDATED Middle East: CNN Senior Editor Fired over Twitter Remark about Lebanon’s Sheikh Fadlallah

I have no truck with terrorism wherever it is committed in whoever’s name. The British Government has been clear that it condemns terrorist activity carried out by Hizballah. I share that view....

I have spent most of my career in the Arab world working to combat terrorism, and the extremism and prejudice which can fuel it. I am sorry that an attempt to acknowledge the spiritual significance to many of Sayid Fadlallah and the views that he held in the latter part of his life has served only to further entrench divisions in this complex part of the world. I regret any offence caused.

In our coverage of the firing of CNN editor Octavia Nasr over her Twitter comment offering "sadness" for the passing of the late Grand Ayatollah Fadlallah and her respect for him, we noted that --- before Nasr's comments --- the British Ambassador to Lebanon, Frances Guy, had offered her own praise for the cleric on her blog on the Foreign Office's pages. The entry was titled, "The Passing of Decent Men". We later noted that, with Nasr gone, pressure was building on the British Government to denounce Guy's words.

Well, well, looks like Foreign Secretary William Hague has courageously ordered the removal of the blog entry. Before he did so, however, The Guardian of London saved a copy:

One of the privileges of being a diplomat is the people you meet; great and small, passionate and furious. People in Lebanon like to ask me which politician I admire most.

It is an unfair question, obviously, and many are seeking to make a political response of their own. I usually avoid answering by referring to those I enjoy meeting the most and those that impress me the most. Until yesterday my preferred answer was to refer to Sheikh Mohammed Hussein Fadlallah, head of the Shia clergy in Lebanon and much admired leader of many Shia muslims throughout the world. When you visited him you could be sure of a real debate, a respectful argument and you knew you would leave his presence feeling a better person. That for me is the real effect of a true man of religion; leaving an impact on everyone he meets, no matter what their faith.

Sheikh Fadlallah passed away yesterday. Lebanon is a lesser place the day after, but his absence will be felt well beyond Lebanon's shores. I remember well when I was nominated ambassador to Beirut, a Muslim acquaintance sought me out to tell me how lucky I was because I would get a chance to meet Sheikh Fadlallah. Truly he was right. If I was sad to hear the news I know other peoples' lives will be truly blighted. The world needs more men like him willing to reach out across faiths, acknowledging the reality of the modern world and daring to confront old constraints.

May he rest in peace.