Links to cogent LEGAL analysis of new AZ mmigration law?

[angelatc]

Here's a link to everything they have tagged as Immigration. : http://volokh.com/category/immigration/

 

[Live_Free_Or_Die]

I don't think a person can be natural-born to a state but not a US citizen. Has that really happened? The case you cited reached the conclusion that the federal government had to be the deciders for exactly that reason.

Let's look at this issue from a reverse perspective. Natural born cannot be taken away. I couldn't find my thread it must be overly buried for lack of response but scan through this link of dual allegiance citations.

http://www.richw.org/dualcit/cases.html

If there is one thing that should be clear it is this:
Citizenship can be surrendered. If citizenship can be surrendered it raises a good question with regards to natural born.

I can't comment on the driver's license issue because I don't know anything about it. I do know that my son can't drive in some states because he is only 15. I also remember seeing some reciprocity agreements between states for recognizing commercial drivers licenses, so I'm guessing and only guessing that there's some legal precedent for not allowing that.

Now that I think about it, there are a ton of licenses that don't transfer across state lines. Insurance, brokerage, CPA, auctioneers - it goes on infinitely.

I am not demanding anything of you but I am suggesting people think about how a state can not honor another state when it is a direct affront to the 14th Amendment.

Amendment 14

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What is the purpose of the "and"?

On a side note it's ironic we are referring to the 14th Amendment and again to the Civil War era.

I do not think my characterization of state regulation with regards to residency is out in left field.

Correct me if I'm wrong, but I think you're telling me how the law actually should be interpreted, and not how it is interpreted by the courts.

I think I raised a valid question.

 

[Live_Free_Or_Die]

I made an equally valid point in another thread when I made the comparison of criminalizing or regulating specific acts versus what we have going on today which is criminalizing and regulating circumstances.

If an act may or may not be criminal and the circumstances are subjective how can a reasonable person be held to the standard ignorance of the law is not an excuse. It is absurd to me.

 

[ChooseLiberty]

Funny that Desmond Tutu feels the need to weigh in on the AZ law. Comic relief. LOL.



http://legalinsurrection.blogspot.com/2010/04/do-not-read-this-supreme-court-decision.html

Friday, April 30, 2010
Do NOT Read This Supreme Court Decision
... if you want to be able to continue using terms like Nazi, Communist and Apartheid to describe the new Arizona immigration law. Or if, like President Obama, you want to claim that the law would allow people to be questioned merely for going out for ice cream. Because none of these accusations have a basis in reality.

Some quick research, available to all the people screaming about the Arizona law, reveals that the U.S. Supreme Court has reviewed the issue of questioning potential illegal aliens regarding citizenship or immigration status, and has found such questioning permissible provided that the "characteristic appearance" of the person was not the sole factor giving rise to a "reasonable suspicion" that the person might be here illegally.

In U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975), the Supreme Court unanimously (with various concurring opinions) held that "roving patrols" by the U.S. border patrol (which by regulation had to be within 100 miles of the border) could not stop vehicles and question the occupants as to immigration status based solely on the occupants appearing to be Mexican. (I assume this case is why the Arizona statute forbids using race, color or national origin as the sole factor.)

Rather, the Supreme Court held there had to be other articulable factors which formed a reasonable suspicion under a "totality of the circumstances" test.

The Supreme Court provided a non-exhaustive list of some possible factors which could contribute to the formation of a reasonable suspicion, including characteristic appearance (emphasis mine):

"Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant ....

They also may consider information about recent illegal border crossings in the area. The driver's behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion....

Aspects of the vehicle itself may justify suspicion. For instance, officers say that certain station wagons, with large compartments for fold-down seats or spare tires, are frequently used for transporting concealed aliens....

The vehicle may appear to be heavily loaded, it may have an extraordinary number of passengers, or the officers may observe persons trying to hide....

The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut....

In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling....

In this case the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry of the occupants. We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens." [case citations and footnotes omitted.]

Just a year later, the Supreme Court held that no reasonable suspicion was needed to engage in limited questioning of citizenship or immigration status at fixed checkpoints (unlike the roving patrols). U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976). Take a look also at this Congressional Research Service memo discussing the reasonable suspicion (to stop someone and ask questions) and probable cause (to conduct a search) standards, to get an idea of how the courts have struggled with these concepts.

There have been attempts to distinguish these cases, for example, where the questioning was done far away from the border area, or by state police not federal border patrol agents, and so on. And there may be other challenges to the Arizona law unrelated to the stopping and questioning. That's fine. That's why we have courts, to decide such matters.

Just don't claim that the Arizona legislature has done something government was not already empowered to do, or invented some new standard called "reasonable suspicion," or by failing to exclude "characteristic appearance" from being taken into consideration engaged in a clear constitutional violation.

In many ways, we have been there and done that judicially when it comes to the standards for questioning people as to their citizenship or immigration status.

The issue really is whether we want to push right up to these legal limits, or do we want to stop short out of political, philosophical or other concerns. There also are issues as to whether the policy will be effective, and other aspects of the law which may be challenged.

Regardless, the notion that the Arizona immigration law allows the police to question someone's immigration status just because the person "looks Mexican," or is "driving while Brown," or has a particular accent, has no basis in the Arizona statute or the clear history of the law in this area.

So if we were not Nazis and Communists and Apartheidists the day before the Arizona Governor signed the immigration law, we did not become any of those things the day after.

Update: Desmond Tutu picks up on Obama's theme, and wrongly claims that looking or sounding Hispanic is a ground for questioning:

I am saddened today at the prospect of a young Hispanic immigrant in Arizona going to the grocery store and forgetting to bring her passport and immigration documents with her. I cannot be dispassionate about the fact that the very act of her being in the grocery store will soon be a crime in the state she lives in. Or that, should a policeman hear her accent and form a "reasonable suspicion" that she is an illegal immigrant, she can -- and will -- be taken into custody until someone sorts it out, while her children are at home waiting for their dinner.

Glenn Reynolds posts an e-mail from a federal immigration agent who argues that border security is not enough. If and when the courts deal with the Arizona statute, I expect the State of Arizona to argue that the illegal immigration situation has become so bad that the entire state now serves as the equivalent of the 100 mile border area discussed in the Brignoni-Ponce case.

Update No. 2: The Arizona legislature is in the process of amending the law to clarify certain terms, which should insulate the legislation from some of the anticipated challenges:

Another change replaces the phrase "lawful contact" with "lawful stop, detention or arrest" to apparently clarify that officers don't need to question a victim or witness about their legal status.

 

[erowe1]

The case they cite does not even deal with the question at hand: the power of an agent of the state executive branch to compel an individual to prove citizenship or be prosecuted for failure to respond.

But that's not what the case at hand is.

Is there even any question that when local law enforcement stops you for a traffic violation, they are allowed to ask to see your drivers license and penalize you if you don't have it?

 

[ChooseLiberty]

Any more LEGAL analysis?

I'm beginning to think the AZ law isn't "unconstitutional" at all, despite what Desmond Tutu, Shakira, Madonna, Britney Spears, Tiger Woods, Tiger Woods' hoochie mamas, Obama, Obama's hoochie mama or other MSM celebrities have to say.

 

[angelatc]

Any more LEGAL analysis?

I'm beginning to think the AZ law isn't "unconstitutional" at all, despite what Desmond Tutu, Shakira, Madonna, Britney Spears, Tiger Woods, Tiger Woods' hoochie mamas, Obama, Obama's hoochie mama or other MSM celebrities have to say.

It seems to me that the only sticky issue is concurrent jurisdiction.

 

[foofighter20x]

Naturalization as a citizen of the United States. Congress, however, has no ability to limit who the states do an do not choose to make naturalized citizens/subjects of their governments.

One can be a citizen of one of the states and not a citizen of the United States.

HTH

This is incorrect.

Why? Because if State A grants its own brand of citizenship, then that act invokes the Privileges and Immunities Clause of Article IV of the U.S. Constitution.

The new citizen of State A is then entitled to all the rights of citizens of State B when that new citizen finds himself within State B's jurisdiction.

This is why Congress was given the power over the rule of naturalization.


Lawful residence is another matter... Commerce in its original understanding included in part the international and inter-jurisdictional movement of people.

Congress, as sovereign over international relations, can restrict the movement of foreigners into and out of the country, and potentially even within the country, as that foreigner's presence within the U.S. is only by the permission of the federal government. Thus, the federal government can attach all the strings it wants to that foreigner's entry into the U.S.

If the foreigner is unlawfully in the country, then the states are without power to grant them a lawful status, as the violation is one of federal law, and that federal law is supreme as regulation of international commerce.

However, if a foreigner is in the country lawfully, the States can grant residency to those foreigners, and extend to them all the privileges and immunities of residents, as this does not extend to the foreigner all the privileges and immunities of other states when the foreigner is present in those other states.

 

[constituent]

This is incorrect.

Actually, it wasn't incorrect it was imprecise, but good eye champ.

 

[foofighter20x]

No. It's incorrect.

Being a citizen of a state makes one a de facto citizen of the U.S., any way you cut it. Whether you adopt the meaning of state-citizenship from before the 14th Amendment or the present day misconstrued version of it, citizenship in a state means U.S. citizenship.

To make a person a citizen of your state means you must naturalize that person to your state, which make that naturalization subject to the federal rules concerning naturalization.


You can verify this by reading James Kent's 1826 commentaries. He made the same point I am, with one difference: Kent spoke of a person possessing lawful residency as being a "denizen."

 

[constituent]

Being a citizen of a state makes one a de facto citizen of the U.S., any way you cut it. Whether you adopt the meaning of state-citizenship from before the 14th Amendment or the present day misconstrued version of it, citizenship in a state means U.S. citizenship.

No foo, you're wrong.

There are, then, under our republican form of government, two
classes of citizens, one of the United States** and one of the
state. One class of citizenship may exist in a person, without
the other, as in the case of a resident of the District of
Columbia; but both classes usually exist in the same person.

[Gardina v. Board of Registrars, 160 Ala. 155]
[48 S. 788, 791 (1909), emphasis added]

^ that ain't the only case, but let me repeat that for you anyway.

"There are, then, under our republican form of government, two
classes of citizens, one of the United States** and one of the
state."

 

[foofighter20x]

I'm not wrong. I'm just not being general enough in scope or detailed enough in information to encompass the very narrow situation you are thinking of.

Also, I think you are misreading the item you are quoting.

So, let me clarify the imprecision in my own elaboration.

Before the 14th, one was viewed as a citizen of a state. That made one a citizen of the U.S. by extension. That is still true even to this day. That is, being a state citizen is sufficient to prove that one is necessarily a U.S. citizen. If one resided in D.C., one was viewed as a citizen of one's state or origin, or of one's parent's state of origin.

After the 14th, the inverted relationship shook up the rules a little. One is a U.S. citizen first, and then a citizen of a state only if one is a U.S. citizen and resides within a state.

The case opinion you cite treats the classifications as separate to deal with the problem of D.C.

If you are born and reside all your life in D.C., you are a U.S. citizen, but never a state citizen. Thus, in that limited sense, they are separate classifications.

 

[constituent]

The case opinion you cite treats the classifications as separate to deal with the problem of D.C.

foo, that case makes reference to D.C. it is in no way attempting to address D.C.

that is an excerpt from a case concerning an issue in Jefferson County Alabama.

anyway... have a good one.

 

[constituent]

just a few things to ponder over from the Supreme Law Library page titled "A Collection of Court Authorities in re Two Classes of Citizens."


http://www.supremelaw.org/rsrc/twoclass.htm

A Collection of Court Authorities
in re
Two Classes of Citizens


by

Paul Andrew Mitchell, B.A., M.S.
(All Rights Reserved without Prejudice)


Before the 14th amendment [sic] in 1868:

A citizen of any one of the States of the union, is held to
be, and called a citizen of the United States, although
technically and abstractly there is no such thing. To
conceive a citizen of the United States who is not a citizen
of some one of the States, is totally foreign to the idea,
and inconsistent with the proper construction and common
understanding of the expression as used in the Constitution,
which must be deduced from its various other provisions.
The object then to be attained, by the exercise of the power
of naturalization, was to make citizens of the respective
States.
[Ex Parte Knowles, 5 Cal. 300 (1855)]
[bold emphasis added]


It is true, every person, and every class and description of
persons, who were at the time of the adoption of the
Constitution recognized as citizens in the several States,
became also citizens of this new political body; but none
other; it was formed by them, and for them and their
posterity, but for no one else. And the personal rights and
privileges guarantied [sic] to citizens of this new
sovereignty were intended to embrace those only who were
then members of the several state communities, or who should
afterwards, by birthright or otherwise, become members,
according to the provisions of the Constitution and the
principles on which it was founded.

[Dred Scott v. Sandford, 19 How. 393, 404 (1856)]
[emphasis added]


... [F]or it is certain, that in the sense in which the word
"Citizen" is used in the federal Constitution, "Citizen of each
State," and "Citizen of the United States***," are convertible
terms; they mean the same thing; for "the Citizens of each
State are entitled to all Privileges and Immunities of Citizens
in the several States," and "Citizens of the United States***"
are, of course, Citizens of all the United States***.

[44 Maine 518 (1859), Hathaway, J. dissenting]
[italics in original, underlines & C's added]


As it was the adoption of the Constitution by the
Conventions of nine States that established and created the
United States***, it is obvious there could not then have
existed any person who had been seven years a citizen of the
United States***, or who possessed the Presidential
qualifications of being thirty-five years of age, a natural
born citizen, and fourteen years a resident of the United
States***. The United States*** in these provisions, means
the States united. To be twenty-five years of age, and for
seven years to have been a citizen of one of the States
which ratifies the Constitution, is the qualification of a
representative. To be a natural born citizen of one of the
States which shall ratify the Constitution, or to be a
citizen of one of said States at the time of such
ratification, and to have attained the age of thirty-five
years, and to have been fourteen years a resident within one
of the said States, are the Presidential qualifications,
according to the true meaning of the Constitution.

[People v. De La Guerra, 40 Cal. 311, 337 (1870)]
[bold and underline emphasis added]


After the 14th amendment [sic] in 1868:

It is quite clear, then, that there is a citizenship of the
United States** and a citizenship of a State, which are distinct
from each other and which depend upon different characteristics
or circumstances in the individual.

[Slaughter House Cases, 83 U.S. 36]
[(1873) emphasis added]


The first clause of the fourteenth amendment made negroes
citizens of the United States**, and citizens of the State in
which they reside, and thereby created two classes of citizens,
one of the United States** and the other of the state.

[Cory et al. v. Carter, 48 Ind. 327]
[(1874) headnote 8, emphasis added]


We have in our political system a Government of the United
States** and a government of each of the several States. Each
one of these governments is distinct from the others, and each
has citizens of its own ....
[U.S. v. Cruikshank, 92 U.S. 542]
[(1875) emphasis added]


One may be a citizen of a State and yet not a citizen of the
United States. Thomasson v. State, 15 Ind. 449; Cory v. Carter,
48 Ind. 327 (17 Am. R. 738); McCarthy v. Froelke, 63 Ind. 507;
In Re Wehlitz, 16 Wis. 443.
[McDonel v. State, 90 Ind. 320, 323]
[(1883) underlines added]

A person who is a citizen of the United States** is necessarily a
citizen of the particular state in which he resides. But a
person may be a citizen of a particular state and not a citizen
of the United States**. To hold otherwise would be to deny to
the state the highest exercise of its sovereignty, -- the right
to declare who are its citizens.
[State v. Fowler, 41 La. Ann. 380]
[6 S. 602 (1889), emphasis added]


The first clause of the fourteenth amendment of the federal
Constitution made negroes citizens of the United States**, and
citizens of the state in which they reside, and thereby created
two classes of citizens, one of the United States** and the other
of the state.
[4 Dec. Dig. '06, p. 1197, sec. 11]
["Citizens" (1906), emphasis added]


There are, then, under our republican form of government, two
classes of citizens, one of the United States** and one of the
state. One class of citizenship may exist in a person, without
the other, as in the case of a resident of the District of
Columbia; but both classes usually exist in the same person.

[Gardina v. Board of Registrars, 160 Ala. 155]
[48 S. 788, 791 (1909), emphasis added]


There is a distinction between citizenship of the United States**
and citizenship of a particular state, and a person may be the
former without being the latter.
[Alla v. Kornfeld, 84 F.Supp. 823]
[(1949) headnote 5, emphasis added]


A person may be a citizen of the United States** and yet be not
identified or identifiable as a citizen of any particular state.

[Du Vernay v. Ledbetter]
[61 So.2d 573, emphasis added]


... citizens of the District of Columbia were not granted the
privilege of litigating in the federal courts on the ground of
diversity of citizenship. Possibly no better reason for this
fact exists than such citizens were not thought of when the
judiciary article [III] of the federal Constitution was drafted.
... citizens of the United States** ... were also not thought of;
but in any event a citizen of the United States**, who is not a
citizen of any state, is not within the language of the [federal]
Constitution.
[Pannill v. Roanoke, 252 F. 910, 914]
[emphasis added]

I added that one bold just b/c I think it really sums it all up.

and proves that in this instance i'm right.

have a good weekend foo.

 

[foofighter20x]

foo, that case makes reference to D.C. it is in no way attempting to address D.C.

that is an excerpt from a case concerning an issue in Jefferson County Alabama.

anyway... have a good one.

Show me a federal case that says that and that hasn't been superseded or overruled...

 

[constituent]

you mean to tell me that the infamous "slaughter house cases" wasn't federal?

It is quite clear, then, that there is a citizenship of the
United States** and a citizenship of a State, which are distinct
from each other and which depend upon different characteristics
or circumstances in the individual.

[Slaughter House Cases, 83 U.S. 36]
[(1873) emphasis added]

or what about this one?

We have in our political system a Government of the United
States** and a government of each of the several States. Each
one of these governments is distinct from the others, and each
has citizens of its own ....
[U.S. v. Cruikshank, 92 U.S. 542]
[(1875) emphasis added]

What, I went through all that trouble to dig that page up and quote it, and you didn't even bother to read it? WTF bro?

 

[Live_Free_Or_Die]

But that's not what the case at hand is.

Is there even any question that when local law enforcement stops you for a traffic violation, they are allowed to ask to see your drivers license and penalize you if you don't have it?

Are you really thinking about the ramifications of that question and how it would apply to being a citizen?

 

[foofighter20x]

you mean to tell me that the infamous "slaughter house cases" wasn't federal?

or what about this one?

What, I went through all that trouble to dig that page up and quote it, and you didn't even bother to read it? WTF bro?

1. I used to think everyone knew that the historical record reveals Slaughterhouse was undeniably incorrect [reference the Chicago Handgun Case and Scalia's remark to Alan Gura about arguing a view that's the "darling of the professoriate" and asking why even an incorrect precedent should be overruled after 140 years]. Also, that interpretation only applied to the P-or-I Clause of the 14th, and not Art. IV.

2. Cruikshank was an incorporation case. Thus, anything else there about citizenship is dicta.

Find a case with binding law. (Hint: you won't be able to...)

As for the rest of the argument, I know I'm right. Any further argument by either of us is merely an attempt to save face by not backing down.

 

[Live_Free_Or_Die]

Throw Foo some of the citations in this white paper:

http://www.freerepublic.com/focus/news/1279555/posts

"People of a state are entitled to all rights which formerly belonged to the king by his prerogative." Lansing v. Smith, 21 D. 89.

"At the revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects, and have none to govern but themselves: the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty." Chisholm Exp v. Georgia (US) 2 Dale 419, 454; I L Ed 440, 445 @DALL 1793 pp 471-472.

"as general rule men have natural right to do anything which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights of others." In Re Newman (1925), 71 C.A. 386, 235 P. 664.

"The United States government is a foreign corporation with respect to a state." In re Merriam, 36 N.E. 505, 141 N.Y. 479, affirmed 16 S.Ct. 1073, 163 U.S. 625, 41 L.Ed. 287; 20 C.J.S., Section 1785. Title 28, United States Code, Section 297 defines the several States of the union as being "freely associated compact states" in subsection (a), and then refers to these freely associated compact states as being "countries" in subsection(b). Did you know that the individual states were considered to be foreign countries to the United States and to each other?

In 1818, the Supreme Court stated that "In the United States of America, there are two (2) separated and distinct jurisdictions, such being the jurisdiction of the states within their own state boundaries, and the other being federal jurisdiction (United States), which is limited to the District of Columbia, the U.S. Territories, and federal enclaves within the states, under Article I, Section 8, Clause 17." U.S. v. Bevans, 16 U.S. (3 WHEAT) 336 (1818), reaff. 19 U.S.C.A., section 1401(h).

When Congress is operating in its exclusive jurisdiction over the District of Columbia, the Territories, and enclaves, it is important to remember that it has full authority to enact legislation as private acts pertaining to its boundaries, and it is not a state of the union of States because it exists solely by virtue of the compact/constitution that created it. The constitution does not say that the District of Columbia must guarantee a Republican form of Government to its own subject citizens within its territories. (See Hepburn & Dundas v. Ellzey, 6 US. 445(1805); Glaeser v. Acacia Mut. Life Ass'n., 55 F. Supp., 925 (1944); Long v. District of Columbia, 820 F.2d 409 (D.C. Cir. 1987); Americana of Puerto Rico, Inc. v. Kaplus, 368 F.2d 431 (1966), among others).

"The idea prevails with some -- indeed, it found expression in arguments at the bar -- that we have in this country substantially or practically two national governments; one, to be maintained under the Constitution, with all its restrictions; the other to be maintained by Congress outside and independently of that instrument, by exercising such powers as other nations of the earth are accustomed to exercise." Downes v. Bidwell, 182 U.S. 244, supra.

If Foo objects to Lansing v. Smith remind him Lansing was cited in Shelby v. Bowlby

In New York, it was long considered as settled law that the State succeeded to all the rights of the Crown and Parliament of England in lands under tide waters, and that the owner of land bounded by a navigable river within the ebb and flow of the tide had no private title or right in the shore below high water mark, and was entitled to no compensation for the construction, under a grant from the legislature of the State, of a railroad along the shore between high and low water mark, cutting off all access from his land to the river, except across the railroad. Lansing v. Smith,

 

[Live_Free_Or_Die]

I should make sure I get my disclaimer out for all of the faithfull sheeple:

http://www.irs.gov/pub/irs-drop/rr-07-22.pdf

I wouldn't want to cause any stir informing anyone the IRS claims jurisdiction from an unratified 14th Amendment in which states do not honor their privileges to each other.