Links to cogent LEGAL analysis of new AZ mmigration law?

[ChooseLiberty]

Been looking for a while and mostly finding unsubstantiated, unreasoned opinions and a wide range of bulls*t about other, more famous people's opinions from the MSM.

Like Judge Nap, but he seems pretty weak on this, BTW.

Link'em if ya got'em.

[low preference guy]

Why don't you look at the law itself?

Part of it is in my signature.

[ChooseLiberty]

Read it, but there's more to it than just the law itself.

I'm looking for a serious legal analysis. Not some bullsh*t about a lawsuit from maldef or the aclu or BO doesn't like it or whether some idiot senator thinks it's constitutional or not. Poor Judge Nap has even fallen down here.


Why don't you look at the law itself?

Part of it is in my signature.

[Vessol]

Lol, I love how everyone loves the Judge until he disagrees with something they are frothing at the mouth for.

[RonPaulCult]

Yale Law School professor's opinion:

http://opinionator.blogs.nytimes.com/2010/04/26/breathing-while-undocumented/?hp

[low preference guy]

The Judge has fallen down? What the fuck are you talking about?

[ChooseLiberty]

Not really, Judge Nap didn't give any kind of legal reasoning.

He just "called it" as unconstitutional, which is no better than any of the other bullsh*tters out there.

To put it more clearly - it's not unconstitutional just because a famous person says it is. Even good ole Judge Nap.

So far all I've seen is people slinging bullsh*t.



Lol, I love how everyone loves the Judge until he disagrees with something they are frothing at the mouth for.

[Live_Free_Or_Die]

If the reasoning applied is not in agreement on state and federal jurisdictions the rest of the conversation is pointless.

[RonPaulCult]

Here's another article from a lawyer saying the bill will be struck down. I'm just posting them as I find these - not to make my argument for or against it. It's just that all of the articles I'm finding say it is not going to stand:

"The folks who believe the Arizona measure will quickly be struck down as unconstitutional point to the federal government's preeminence over immigration issues. And they point particularly to California's ill-fated Proposition 187"

http://www.politicsdaily.com/2010/04/26/arizona-s-immigration-law-likely-doomed-in-court/

[Vessol]

It's true though, it violates the 4th Amendment.

Which reads as:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

[low preference guy]

Not really, Judge Nap didn't give any kind of legal reasoning.

He just "called it" as unconstitutional, which is no better than any of the other bullsh*tters out there.


He was not asked specifically about the arguments. He just wasn't asked by an interviewer to produce a formal analysis, that doesn't mean he is bullshiting. If you ask him, I'm sure he'll give you all the reasons why it's unconstitutional. You're way out of line here.

[RonPaulCult]

He was not asked specifically about the arguments. He just wasn't asked by an interviewed to produce a formal analysis, that doesn't mean he is bullshiting. If you ask him, I'm sure he'll give you all the reasons why it's unconstitutional. You're way out of line here.

He gave a very detailed analysis on the Alex Jones show. Look for the youtube of it on this forum. You can disagree with him, but he is basing it on the law and not just his personal feelings.

[ChooseLiberty]

Make a reasoned argument. Remember to include appropriate SCOTUS cases.

You might convince me, but you have to be able to make an argument.

I know it's a stretch for all the anarchists and anarcho libertarians on this site, but shouting out your opinion louder and longer than the other guy doesn't make you win the argument. Well in a bar maybe. :D




It's true though, it violates the 4th Amendment.

Which reads as:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

[low preference guy]

Make a reasoned argument. Remember to include appropriate SCOTUS cases.

You might convince me, but you have to be able to make an argument.

I know it's a stretch for all the anarchists and anarcho libertarians on this site, but shouting out your opinion louder and longer than the other guy doesn't make you win the argument. Well in a bar maybe. :D

Randomly talking shit about Judge Nap isn't an argument either.

[Vessol]

Make a reasoned argument. Remember to include appropriate SCOTUS cases.

Then I ask for you to do the same.

[ChooseLiberty]

Ok. You love Judge Nap. Get it.

;)

Randomly talking shit about Judge Nap isn't an argument either.

[ChooseLiberty]

I'm not taking a position, but you seem to be. Burden of proof is on you.

Checkmate. LOL.


Then I ask for you to do the same.

[low preference guy]

Ok. You love Judge Nap. Get it.

;)

You're asking us to justify our views. Why don't you justify that Judge Nap "has fallen down"?

[ChooseLiberty]

I'm just looking for a real legal analysis of the issues. Emphasis on LEGAL.

I take everything you think I said bad aout Judge Nap back.

How's that?



You're asking us to justify our views. Why don't you justify that Judge Nap "has fallen down"?

[RonPaulCult]

Make a reasoned argument. Remember to include appropriate SCOTUS cases.

You might convince me, but you have to be able to make an argument.

I know it's a stretch for all the anarchists and anarcho libertarians on this site, but shouting out your opinion louder and longer than the other guy doesn't make you win the argument. Well in a bar maybe. :D

How about ARIZONA v. HICKS? What's with this damn state of Arizona :)

"A decision to require probable cause for searches, continuing the strong 4th Amendment standard which requires more than just suspicion to allow a search."

Probable cause does not equal being a certain color I might add!

[ChooseLiberty]

This is sort of what I'm looking for. The analysis should probably include "concurrent enforcement".


If the reasoning applied is not in agreement on state and federal jurisdictions the rest of the conversation is pointless.

[ssforronpaul]

I have been looking for analysis outside this forum as well. It is an article in the New York Times by someone who helped write the bill. The author has also helped write and defend other illegal immigration laws, including one in Arizona.

Here is the link:

http://www.ronpaulforums.com/showthread.php?t=242414

Sorry, I didn't see this thread when I posted.

ssforronpaul

[ChooseLiberty]

That's a nice lookat the wedge issues being tossed around. Especially the "reasonable suspicion" issue which seems to be freaking some people out. :D

Ideally someone would expand on this argument addressing all the issues and judical history.

http://www.nytimes.com/2010/04/29/opinion/29kobach.html

Good find.




I have been looking for analysis outside this forum as well. It is an article in the New York Times by someone who helped write the bill. The author has also helped write and defend other illegal immigration laws, including one in Arizona.

Here is the link:

http://www.ronpaulforums.com/showthread.php?t=242414

Sorry, I didn't see this thread when I posted.

ssforronpaul

[Live_Free_Or_Die]

I am placing my bets on the biggest wedge issue being Due Process.

Due process is the reasoning (some make a very strong argument it was wrongfully) applied in the Dred Scott ruling. The Dred Scott ruling applied Due Process to the legislature.

[ChooseLiberty]

Is the AZ law really "unconstitutional"?

http://www.cis.org/StateEnforcement-LocalEnforcement

State Arrest Authority

The preliminary question is whether the states have inherent power (subject to federal preemption) to make arrests for violation of federal law. That is, may state police, exercising state law authority only, make arrests for violations of federal law, or do they have power to make such arrests only insofar as they are exercising delegated federal executive power? The answer to this question is plainly the former.

The source of this authority flows from the states’ status as sovereign entities. They are sovereign governments possessing all residual powers not abridged or superceded by the U.S. Constitution. The source of the state governments’ power is entirely independent of the U.S. Constitution. See Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819). Moreover, the enumerated powers doctrine that constrains the powers of the federal government does not so constrain the powers of the states. Rather, the states possess what are known as "police powers," which need not be specifically enumerated. Police powers are "an exercise of the sovereign right of the government to protect the lives, health, morals, comfort, and general welfare of the people…" Manigault v. Springs, 199 U.S. 473, 480 (1905). Essentially, states may take any action (consistent with their own constitutions and laws) unless there exists a prohibition in the U.S. Constitution or such action has been preempted by federal law.2

It is well established that the authority of state police to make arrests for violation of federal law is not limited to those situations in which they are exercising delegated federal power. Rather, such arrest authority inheres in the States’ status as sovereign entities. It stems from the basic power of one sovereign to assist another sovereign. This is the same inherent authority that is exercised whenever a state law enforcement officer witnesses a federal crime being committed and makes an arrest. That officer is not acting pursuant to delegated federal power. Rather, he is exercising the inherent power of his state to assist another sovereign.

Abundant Case Law. There is abundant case law on this point. Even though Congress has never authorized state police officers to make arrest for federal offenses without an arrest warrant, such arrests occur routinely; and the Supreme Court has recognized that state law controls the validity of such an arrest. As the Court concluded in United States v. Di Re, "No act of Congress lays down a general federal rule for arrest without warrant for federal offenses. None purports to supersede state law. And none applies to this arrest which, while for a federal offense, was made by a state officer accompanied by federal officers who had no power of arrest. Therefore the New York statute provides the standard by which this arrest must stand or fall." 332 U.S. 581, 591 (1948). The Court’s conclusion presupposes that state officers possess the inherent authority to make warrantless arrests for federal offenses. The same assumption guided the Court in Miller v. United States. 357 U.S. 301, 305 (1958). As the Seventh Circuit has explained, "[state] officers have implicit authority to make federal arrests." U.S. v. Janik, 723 F.2d 537, 548 (7th Cir. 1983). Accordingly, they may initiate an arrest on the basis of probable cause to think that an individual has committed a federal crime. Id.

The Ninth and Tenth Circuits have expressed this understanding in the immigration context specifically. In Gonzales v. City of Peoria, the Ninth Circuit opined in an immigration case that the "general rule is that local police are not precluded from enforcing federal statutes," 722 F.2d 468, 474 (9th Cir. 1983). The Tenth Circuit has reviewed this question on several occasions, concluding squarely that a "state trooper has general investigatory authority to inquire into possible immigration violations," United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984). As the Tenth Circuit has described it, there is a "preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws," United States v. Vasquez-Alvarez, 176 F.3d 1294, 1295 (10th Cir. 1999). And again in 2001, the Tenth Circuit reiterated that "state and local police officers [have] implicit authority within their respective jurisdictions ‘to investigate and make arrests for violations of federal law, including immigration laws.’" United States v. Santana-Garcia, 264 F.3d 1188, 1194 (citing United States v. Vasquez-Alvarez, 176 F.3d 1294, 1295). None of these Tenth Circuit holdings drew any distinction between criminal violations of the INA and civil provisions that render an alien deportable. Rather, the inherent arrest authority extends generally to both categories of federal immigration law violations. (cont)

[ChooseLiberty]

No Congressional Preemption

Having established that this inherent state arrest authority exists, the only remaining question is whether such authority has been preempted by Congress. In conducting preemption analysis, courts must look for (1) express preemption by congressional statement, (2) field preemption where the federal regulatory scheme is so pervasive as to create the inference that Congress intended to leave no room for the states to supplement it, or (3) conflict preemption, where compliance with both state and federal law is impossible or state law prevents the accomplishment of congressional objectives. See Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (plurality opinion). In all three categories, there must exist manifest congressional intent for preemption to exist.

Moreover, in the context of state arrests for violations of federal law, there is a particularly strong presumption against preemption. Normal preemption cases involve: (1) state legislation or regulation (2) that is at odds with federal purposes or statutes. However, state arrests for violations of federal law involve: (1) state executive action (2) that is intended to assist the federal government in the enforcement of federal law. The critical starting presumption must be that the federal government did not intend to deny itself any assistance that the states might offer. This presumption was explained in 1928 by Judge Learned Hand, who stated that "it would be unreasonable to suppose that [the federal government’s] purpose was to deny itself any help that the states may allow." Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928).

In 1996, Congress expressly put to rest any suspicion that it did not welcome state and local assistance in making immigration arrests. Congress added section 287(g) to the INA, providing for the establishment of written agreements with state law enforcement agencies to convey federal immigration enforcement functions to such agencies. In doing so, Congress reiterated its understanding that states and localities may make immigration arrests regardless of whether a 287(g) agreement exists. Congress stated that a formal agreement is not necessary for "any officer or employee of a State or political subdivision of a state… to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States," or "otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." 8 U.S.C. § 1357(g)(10).

Consequently, it is hardly surprising that no appellate court has expressly ruled that states are preempted from arresting aliens for civil violations of the INA. The only case that even comes close is the 1983 opinion of the Ninth Circuit in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983). In Gonzales, the Ninth Circuit held that local police officers have the authority to arrest an alien for a violation of the criminal provisions of the INA if such an arrest is authorized under state law. In that instance, a group of persons of Mexican descent challenged a policy of the City of Peoria, Arizona, that instructed local police to arrest and detain aliens suspected of illegally entering the United States in violation of the criminal prohibitions of Section 1325 of Title 8. See 722 F.2d at 472-73. Observing that local police generally are not precluded from enforcing federal statutes and that concurrent enforcement authority is authorized where local enforcement would not impair federal regulatory interests, the court engaged in a preemption analysis to determine whether Congress had precluded local enforcement of this criminal provision of the INA. The court concluded that no such preemption had occurred. See id. at 475. In passing, the Ninth Circuit "assume[d] that the civil provisions of the [INA]… constitute… a pervasive regulatory scheme" that suggested a congressional intent to preempt local enforcement, id. at 474-75. However, this possibility of field preemption was merely an assumption, asserted without any analysis, and made in dictum — entirely outside of the holding of the case (which concerned a criminal offense). It does not constitute binding precedent. And even if the Ninth Circuit had squarely reached this conclusion in 1983, such a holding would have been fatally undermined by the court’s failure to apply the strong presumption against preemption discussed above. In addition, the subsequent actions of Congress in 1996 made such a holding unsustainable. (cont)

[ChooseLiberty]

Solid Case Law.

In contrast, the case law supporting the conclusion that Congress has not preempted state arrests of aliens for violations of civil provisions of the INA is solid and on point. The Tenth Circuit has issued several opinions on the subject, all pointing to the conclusion that Congress has never sought to preempt the states’ inherent authority to make immigration arrests for both criminal and civil violations of the INA. Its 1984 ruling in the case of United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984), confirmed the inherent arrest authority possessed by the states. The defendant in that case was the driver of a pickup who had been arrested for the criminal violation of transporting illegal aliens. He had been stopped by a state trooper for driving erratically. The driver and his wife were in the cab; and six passengers, none of whom spoke English, were in the back of the pickup. The defendant claimed that a state trooper did not have the authority to detain the transported passengers while he questioned them about their immigration status. In rejecting this claim, the Tenth Circuit held that a "state trooper has general investigatory authority to inquire into possible immigration violations." 728 F.2d at 1301 n.3. The court did not differentiate between criminal and civil violations. Indeed, because there is no indication in the opinion that there was any reason to believe that the alien passengers had committed any criminal violations, the court’s statement appears to apply fully to civil as well as criminal violations.

The Tenth Circuit’s most salient case on the preemption question is U.S. v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999). In that case, an Oklahoma police officer arrested the defendant because he was an "illegal alien." The officer did not know at the time whether the defendant had committed a civil or criminal violation of the INA. Id. at 1295. It was later discovered that the alien had illegally reentered the country after deportation, in violation of 8 U.S.C. § 1326, a criminal violation. When the government indicted the defendant, he moved to suppress his post-arrest statements, fingerprints, and identity, arguing that he was arrested in violation of 8 U.S.C. § 1252c. The defendant claimed that a local police officer could arrest an illegal alien only in accordance with the conditions set forth in Section 1252c and that because his arrest was not carried out according that provision it was unauthorized. Section 1252c authorizes state and local police to make a warrantless arrest and to detain an illegal alien if (1) the arrest is permitted by state and local law, (2) the alien is illegally present in the United States, (3) the alien was previously convicted of a felony in the United States and subsequently was deported or left the country, and (4) prior to the arrest the police officer obtains appropriate confirmation of the alien’s status from federal immigration authorities. 8 U.S.C. § 1252c.

The Tenth Circuit’s conclusion was unequivocal: Section 1252c "does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws. Instead, Section 1252c merely creates an additional vehicle for the enforcement of federal immigration law." Vasquez-Alvarez, 176 F.3d at 1295. The court rejected the alien’s contention that all arrests not authorized by Section 1252c are prohibited by it. The court reviewed the legislative history of Section 1252c and analyzed the comments of Rep. Doolittle (R-Calif.), who sponsored the floor amendment containing the text that would become Section 1252c. The court concluded that the purpose of the amendment was to overcome a perceived federal limitation on this state arrest authority. However, neither Doolittle, nor the government, nor the defendant, nor the court itself had been able to identify any such limitation. Id. at 1298-99.

The interpretation of 1252c urged by the defendant would have grossly perverted the manifest intent of Congress, which was to encourage more, not less, state involvement in the enforcement of federal immigration law. Reading into the statute an implicit congressional intent to preempt existing state arrest authority would have been entirely inconsistent with this purpose. Moreover, such an interpretation would have been inconsistent with subsequent congressional actions. As the Tenth Circuit noted, "in the months following the enactment of Section 1252c, Congress passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws." Id. at 1300 (citing 8 U.S.C. §§ 1103(a)(9), (c), 1357(g)). Put succinctly, the "legislative history does not contain the slightest indication that Congress intended to displace any preexisting enforcement powers already in the hands of state and local officers." Id. at 1299.

The Fifth Circuit has also rejected the notion that Congress has preempted the inherent arrest authority possessed by the states. In Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987), the court considered whether 8 U.S.C. §1223(a) defined the sole process for detaining alien stowaways, thereby preempting harbor police from detaining illegal aliens as occurred in that case. The Fifth Circuit’s conclusion was broad and unequivocal: "No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation’s immigration laws." Id. at 1371.

Finally on the subject of preemption, it must be noted that the distinction between arrests by state police for criminal violations of the INA and arrests by state police for civil violations of the INA is utterly unsustainable. Any claim of field preemption would have to establish that the civil provisions of the INA create a pervasive regulatory scheme indicating congressional intent to preempt, while the criminal provisions do not. No court has ever attempted to justify such a conclusion. The INA is not separated neatly into criminal and civil jurisdictions. Nor have the regulations promulgated pursuant to the INA or the executive agencies charged with its enforcement attempted such a separation. The structure of the INA, with its numerous overlapping civil and criminal provisions, simply cannot support such a distinction.

[Live_Free_Or_Die]

Nice article.

I am going to pose a question because another elephant in the room is:

If a state naturalizes an individual with residency are they an alien to the state?

In an immigration thread discussing the uniform rule of naturalization it was pointed out states have never been excluded from providing a lessor path of naturalization.

To illustrate a point I will refer to the IRS. For many years the IRS (along with other federal agencies) has used the terms non-resident alien and resident alien for classification.

State: Resident/Non-Resident
Federal: Citizen/Alien

http://www.irs.gov/taxtopics/tc851.html

[constituent]

Nice article.

I am going to pose a question because another elephant in the room is:

If a state naturalizes an individual with residency are they an alien to the state?

In an immigration thread discussing the uniform rule of naturalization it was pointed out states have never been excluded from providing a lessor path of naturalization.

To illustrate a point I will refer to the IRS. For many years the IRS (along with other federal agencies) has used the terms non-resident alien and resident alien for classification.

State: Resident/Non-Resident
Federal: Citizen/Alien

http://www.irs.gov/taxtopics/tc851.html


exactly.

the question becomes if I renounce my U.S. Citizenship, but retain my status as a citizen of the State of Texas, could Arizona police arrest me (in Arizona), hand me over to federal authorities and have me locked in a cage "until [they] get it all straightened out?"

[angelatc]

Read it, but there's more to it than just the law itself.

I'm looking for a serious legal analysis. Not some bullsh*t about a lawsuit from maldef or the aclu or BO doesn't like it or whether some idiot senator thinks it's constitutional or not. Poor Judge Nap has even fallen down here.

The Volokh Conspiracy is a legal blog, and they've had several entries on it, all with links to other legal sites and cites.

www.volokh.com

This guy is a law professor at Cornell: http://legalinsurrection.blogspot.com/2010/04/do-not-read-this-supreme-court-decision.html He has a link to some reasonable suspicion discussions in the legislature.

[Live_Free_Or_Die]

exactly.

the question becomes if I renounce my U.S. Citizenship, but retain my status as a citizen of the State of Texas, could Arizona police arrest me (in Arizona), hand me over to federal authorities and have me locked in a cage "until [they] get it all straightened out?"

Did you happen to catch the thread where I posted a link to a collection of dual allegiance citations that clearly articulate citizenship can be renounced and posed the question if you are a natural born non-citizen what are you?

[angelatc]

Nice article.

I am going to pose a question because another elephant in the room is:

If a state naturalizes an individual with residency are they an alien to the state?

In an immigration thread discussing the uniform rule of naturalization it was pointed out states have never been excluded from providing a lessor path of naturalization.



I'm thinking that the constitution says that Congress sets the laws for naturalization, so wouldn't that indeed be a power reserved for the federal government?

[constituent]

Did you happen to catch the thread where I posted a link to a collection of dual allegiance citations that clearly articulate citizenship can be renounced and posed the question if you are a natural born non-citizen what are you?

I don't think so, but would appreciate a link. :)

Thanks. :)

[constituent]

I'm thinking that the constitution says that Congress sets the laws for naturalization, so wouldn't that indeed be a power reserved for the federal government?

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 :)

[furface]

Here's a link to the first lawsuit filed. It's basically saying the law requires him, a police officer, to draw conclusions based on race and is not scientific.

http://i2.cdn.turner.com/cnn/2010/images/04/29/escobar.pdf

It's an interesting question that again brings up the issue of profiling. Does a non-English speaking adult in America imply illegal residence? It almost certainly means you weren't raised in America as well as not being a naturalized citizen. In this case is it reasonable for non-citizens to be able to prove they are here legally to the police?

Also, there is a tremendous amount of focus on law enforcement for this issue. The important concept has to do with applying for services like schools and free medical care. My guess is that AZ doesn't really care about the police interaction. They're just looking for a way to get illegals out of their schools, welfare, and hospitals.

[Live_Free_Or_Die]

I'm thinking that the constitution says that Congress sets the laws for naturalization, so wouldn't that indeed be a power reserved for the federal government?

I have no idea why I am going to respond to this since you think I am so full of shit with regards to matters of law because I do not posses some license rendering permission.

I'm thinking the constitution only says that Congress can provide a uniform rule of naturalization, not law.



RULE. This is a metaphorical expression borrowed from mechanics. The rule, in its proper and natural sense, is an instrument by means of which may be drawn from one point to another, the shortest possible line, which is called a straight line.

2. The rule is a means of comparison in the arts to judge whether the line be straight, as it serves in jurisprudence, to judge whether an action be just or unjust, it is just or right, when it agrees with the rule, which is the law. It is unjust and wrong, when it deviates from it. lt is the same with our will or our intention.

LAW. In its most general and comprehensive sense, law signifies a rule of action.

Action is a dividing line between the definitions which has meaning in the constitutional context of naturalization. When action is judged against a rule we are referring to law. To spell it out... emigration implies action... immigration implies allegiance.

Now getting back to the question posed does it strike you as odd there are different terms in that resident/non-resident applies to state and citizen/alien applies to federal government?

I am going to quote something but I am not going to bother to cite it because to you I am prima facie incompetent for lack of license:



These delegated powers, whether express or implied, are, (1) Those which are exclusively vested in the United States; and, (2) Those which are concurrent in the United States and the respective states.

It is perfectly settled that an affirmative grant of power to the United States does not, of itself, divest the states of a like power. The authorities cited settle this question, and it is no longer open for discussion in his Court.

The powers vested exclusively in Congress are. (1) Those which are granted in express terms. (2) Those which are granted to the United States, and expressly prohibited to the States. (3) Those which are exclusive in their nature.

All powers exclusive in their nature may be included under two heads; (1) Those which have thier origin in the constitution, and where the object of them did not exist previous to the Union. These may be called strictly national powers. (2) Those powers which, by other provisions in the constitution, have an effect an operation, when exercised by a state, without or beyond the territorial limits of the State.

As examples of the first class, may be mentioned the "power to borrow money on the credit of the United States." Here the object of the power (to borrow money for the use of the United States), and the means of executing it (by pledging their credit), have their origin in the Union, and did not previously exist. So as to the power "to establish tribunals inferior to the Supreme Court," the same remark will apply.

Of the second class, the power "to establish an uniform rule of naturalization" is an instance. This power was originally in the States, and was extensively exercised by them, and would now be concurrent, except for another provision in the constitution, that "citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." It is not held to be exclusive, from the use of the term "uniform rule." This court has held that use of an analogous term, "uniform laws," In respect to the associated subject of bankruptcy, does not imply an exclusive power in Congress over that subject. The true reason why the power of establishing an uniform rule of naturalization is exclusive, must be that a person becomming a citizen in one state, would thereby become a citizen of another, perhaps even contrary to its laws, and the power thus exercised would operate beyond the limits of the state.

Now I am going to cite an excerpt from the Arizona DMV ID requirements:



Driver License or Instruction Permit issued by another state, territory, or possession of the U.S. except per Arizona law for the following states because they do not verify lawful presence in the U.S.: Hawaii, Illinois, New Mexico, Utah, and Washington.

http://mvd.azdot.gov/mvd/formsandpub/viewPDF.asp?lngProductKey=1410&lngFormInfoKey=1410

How does a state not honor all other states? States are part of the problem and it should be as plain as day to you as it is with health care. States have regulated the shit out of health care for their own benefit and residency is no different.

Should I derail and make a birther comment since Hawaii is in the list above? I will pass on it.

Getting back to the question I already posed to you regarding the code citation which is very relevant. What is the federal jurisdiction? It has no jurisdiction to exercise police powers on state property (borders). It does assert jurisdiction over citizens in the several states. It does assert jurisdiction in relations between sovereign entities such as states, nations, indigenous tribes, nationals, etc.

If an individual is natural born in a state and a non-citizen what is the nature of federal jurisdiction exactly?

[Live_Free_Or_Die]

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

I am not sure if that is how I would characterize how it was meant to be but I do think that is how it is because states are every bit as culpable as the federal government in their greed, negligence, and tyranny.

[erowe1]

Not sure if anyone has posted this yet. But the first place I would check would be here:
http://volokh.com/

I see scanning back through the past several days of posts there that they have a few on the topic. I haven't read them yet. But based on my experience with that site in the past, I expect that they will address the issue from a legal point of view, have a libertarian bent, and avoid the sensationalism and hyperbole of someone like Napolitano.

[angelatc]

I

If an individual is natural born in a state and a non-citizen what is the nature of federal jurisdiction exactly?

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.

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.

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.

[Live_Free_Or_Die]

Not sure if anyone has posted this yet. But the first place I would check would be here:
http://volokh.com/

I see scanning back through the past several days of posts there that they have a few on the topic. I haven't read them yet. But based on my experience with that site in the past, I expect that they will address the issue from a legal point of view, have a libertarian bent, and avoid the sensationalism and hyperbole of someone like Napolitano.

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.

They cite a border patrol case:


In U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975),
This case raises questions as to the United States Border Patrol's authority to stop automobiles in areas near the Mexican border. It differs from our decision in Almeida-Sanchez v. United States, 413 U. S. 266 (1973), in that the Border Patrol does not claim authority to search cars, but only to question the occupants about their citizenship and immigration status.

http://scholar.google.com/scholar_case?case=17010248136028194244&hl=en&as_sdt=2&as_vis=1&oi=scholarr


I hope with all of their anti-nazi propaganda they plan on making a better argument because it doesn't even scratch the surface on this scenario:

Approached by officer.
Am I free to leave?
No. (At this point as a matter of law I have now been seized.)
I assert my Fifth and Sixth Amendment constitutional guarantees and will not make any statement without my attorney present.



HIIBEL v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA

The Fifth Amendment prohibits only compelled testimony that is incriminating, see Brown v. Walker, 161 U.S. 591, 598, and protects only against disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used, Kastigar v. United States, 406 U.S. 441, 445. Hiibel’s refusal to disclose was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish evidence needed to prosecute him. Hoffman v. United States, 341 U.S. 479, 486. It appears he refused to identify himself only because he thought his name was none of the officer’s business. While the Court recognizes his strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him. Answering a request to disclose a name is likely to be so insignificant as to be incriminating only in unusual circumstances. See, e.g., Baltimore City Dept. of Social Servs. v. Bouknight, 493 U.S. 549, 555. If a case arises where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense, the court can then consider whether the Fifth Amendment privilege applies, whether it has been violated, and what remedy must follow. Those questions need not be resolved here.

Volokh.com ought to make a better argument than that one case citation.

[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)]



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**. [B] 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. ;) :D

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... :rolleyes:

[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.

[foofighter20x]

Throw Foo some of the citations in this white paper:

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



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

State sovereignty is irrelevant, seeing as how the states abrogated all their respective powers over naturalization in Article I, Section 8.

The power of Congress to provide a "uniform" rule of naturalization precludes any variation therefrom by the individual states, as a uniform rule means that there is a single enforceable rule that applies equally across all jurisdictions. If a state deviates from that rule in any way, then the naturalization they have performed is not done in accordance with the supreme law of the land. As a consequence, the naturalization is null, void, and of no force.

What was left to the states with respect to the naturalization of citizens would be to what extent each citizens rights were once naturalized.

Good luck with arguing the other way, though...

[Live_Free_Or_Die]

State sovereignty is irrelevant, seeing as how the states abrogated all their respective powers over naturalization in Article I, Section 8.

The power of Congress to provide a "uniform" rule of naturalization precludes any variation therefrom by the individual states, as a uniform rule means that there is a single enforceable rule that applies equally across all jurisdictions. If a state deviates from that rule in any way, then the naturalization they have performed is not done in accordance with the supreme law of the land. As a consequence, the naturalization is null, void, and of no force.

What was left to the states with respect to the naturalization of citizens would be to what extent each citizens rights were once naturalized.

Good luck with arguing the other way, though...

SCOTUS hasn't given abrogation much notice and seems to enjoy conducting social experimentation from the bench. How are those same privileges and immunities among the states working out for ya? Don't blame the messenger for pointing out the failures of federalism.

I stated earlier in the thread I am not sure I would characterize that is how it was meant to be but it is certainly how things are. The evidence of non-transferable state privileges and separate national citizenship are empirical and coupled with an absolute appalling inconsistent train wreck of decisions from SCOTUS there is little doubt of this fact.

[constituent]

1. I used to think...

isn't a reference.



Find a case with binding law

lol, your standards keep changing, but the level of information you're providing to backup your argument doesn't.

guess that means you "win?"

naaah. :)


As for the rest of the argument, I know I'm right.

as i know you're wrong. ;) :)



Any further argument by either of us is merely an attempt to save face by not backing down.

lol, that's all your last three attempts have been. should have tried that line earlier. ;)

thanks. :)

[constituent]

State sovereignty is irrelevant, seeing as how the states abrogated all their respective powers over naturalization in Article I, Section 8.


Now, I would be interested to know what source you're using for this info. :)

Other than your opinion, or "just read [fill in the blank]'s opinions."

Of course, it's not germane to the topic of this thread, so it'd be great if you started a new one to fully explain.

And while you're at it, maybe you can explain to the rest of us how judges create, in your words, "binding law." thanks. :)

[constituent]

Throw Foo some of the citations in this white paper:


Well, he ain't going to read them anyway. :)

But for the benefit of the reader, I'll go ahead and repost some of the ones you've already highlighted (in order of importance to the task at hand) that bolster my case for me, and furthermore build a case against his statement concerning Article I Section 8.


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).

So there goes the "states abrogated...under Article I Section 8."


"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).

^ I would like to hear more about this....


The next one seems unrelated, but has my wheels turning particularly as it concerns many of the seemingly extra-constitutional actions of congress. I'm really going to dive into this one for some background. You've put me on the hunt! :)


"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.

[Live_Free_Or_Die]

Even the disclaimer I posted from the IRS doesn't use abrogation language in their law analysis:



LAW AND ANALYSIS
1. Citizenship

The Fourteenth Amendment to the United States Constitution defines the basis for United States citizenship, stating that “[a]ll 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.” The Fourteenth Amendment, therefore, establishes simultaneous state and federal citizenship. See United States v. Cruikshank, 92 U.S. 542, 549 (1875) (“The same person may be at the same time a citizen of the United States and a citizen of a State. . . .”); In re Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 74 (1873) (A man “must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union”). The Fourteenth Amendment’s granting of citizenship applies to all persons born or naturalized in the United States, regardless of race. See, e.g., Bell v. State of Maryland, 378 U.S. 226, 249 (1964) (Douglas, J., concurring) (“The Fourteenth Amendment also makes every person who is born here a citizen; and there is no second or third or fourth class of citizenship.”).

Section 7701(a)(9) of the Internal Revenue Code states that “[t]he term 'United States' when used in a geographical sense includes only the States and the District of Columbia.” Claims that individuals are not citizens of the United States but are solely citizens of a sovereign state and not subject to federal taxation have been uniformly rejected by the courts. See, e.g., United States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993) (“The defendant in this case apparently holds a sincere belief that he is a citizen of the mythical “Indiana State Republic” and for that reason is an alien beyond the jurisdictional reach of federal courts. This belief is, of course, incorrect.”); United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993) (“[We] reject appellants’ contention that they are not citizens of the United States, but rather “Free Citizens of the Republic of Minnesota” and, consequently, not subject to taxation.”); O’Driscoll v. Internal Revenue Service, 1991 U.S. Dist. LEXIS 9829, *5-6 (E.D. Penn. 1991) (“Despite plaintiff’s linguistic gymnastics, he is a citizen of both the United States and Pennsylvania, and liable for federal taxes.”).

Similarly, the individual states are part of the United States and income earned within them is fully subject to United States taxation. See, e.g., Solomon v. Commissioner, T.C. Memo. 1993-509 (responding to argument that all of petitioner’s income was earned outside of the United States, the court held that “petitioner attempts to argue an absurd proposition, essentially that the State of Illinois is not part of the United States.”).

But the problem comes back to the monopoly on justice doing whatever it wants because a rule of naturalization (as it would apply to people who are un-naturalized) is rightfully an abrogated power under federalism. The notion of states honoring the privileges and immunities dates back to the Articles of Confederation. So how come it hasn't happened? The failure of federalism lies with the monopoly, people, states, congress, and inconsistency of courts.

I am willing to be intellectually honest and acknowledge the ought of abrogation but I think the other side here needs to pony up and recognize ought does not mean is. Should we take our marching orders from Aliens? Should we acknowledge the country is bankrupt?


If a state deviates from that rule in any way, then the naturalization they have performed is not done in accordance with the supreme law of the land. As a consequence, the naturalization is null, void, and of no force.

Should we acknowledge an un-ratified amendment?

[Live_Free_Or_Die]

I want to make sure I satisfy the licensing crowd on my term selection privileges. People around here consider information presented on this site as factual so that is where I will cite from:

http://www.lewrockwell.com/orig/healy1.html



We return to 1865. As the legally reconstituted Southern states were busy ratifying the anti-slavery Thirteenth Amendment, the Republican-dominated Congress refused to seat Southern representatives and Senators. This allowed the remaining, rump Congress to propose the Fourteenth Amendment, consistent with Article V's requirement of a 2/3 majority for sending a proposed amendment to the states. Never mind that Congress also clearly violated that Article's provision that "no State, without its Consent, shall be deprived of its equal suffrage in the Senate."

Though the Northern states ratified the Fourteenth Amendment, it was decisively rejected by the Southern and border states, failing to secure the 3/4 of the states necessary for ratification under Article V. The Radical Republicans responded with the Reconstruction Act of 1867, which virtually expelled the Southern states from the Union and placed them under martial law. To end military rule, the Southern states were required to ratify the Fourteenth Amendment. As one Republican described the situation: "the people of the South have rejected the constitutional amendment and therefore we will march upon them and force them to adopt it at the point of the bayonet."

President Andrew Johnson saw the Reconstruction Act as "absolute despotism," a "bill of attainder against 9,000,000 people." In his veto message, he stated that "such a power ha[d] not been wielded by any Monarch in England for more than five hundred years." Sounding for all the world like Roger Pilon, Johnson asked, "Have we the power to establish and carry into execution a measure like this?" and answered, "Certainly not, if we derive our authority from the Constitution and if we are bound by the limitations which it imposes."

The rump Republican Congress overrode Johnson's veto and enacted statutes that shrank both the Supreme Court's appellate jurisdiction and the Court itself – just in case the judicial branch got any funny ideas of its own about constitutionalism. Jackboot on its neck, the South ratified, but not before New Jersey and Ohio, against a Republican tyranny, rescinded their previous ratifications of the amendment. Even with the fictional consent of the Southern states, the republicans needed New Jersey and Ohio to put the amendment over the top. No matter; by joint resolution, Congress declared the amendment valid. Thus it – you'll excuse the phrasing-- "passed into law."

[ChooseLiberty]

Linky dinks?

[ChooseLiberty]

Wow.

So far none of the pro-illegals gun to your head give us your tax money for our free benefits crowd has come along to refute any legal arguments on this law.

Why am I not surprised?

Hey mods, you might want to move this to Hot Topics, it could be construed as anti-illegal stuff.

Oh no.

[Live_Free_Or_Die]

Probably hoping the thread sinks into oblivion.

[Danke]

bump