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Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Because no one
is above the law!


Tom Fitton's Judicial Watch Weekly Update

Supreme Court Upholds Rule of Law!

June 3, 2011

From the Desk of Judicial Watch President Tom Fitton:

Supreme Court Upholds AZ Law Punishing Businesses That Hire Illegal Aliens!

On May 26th, the U.S. Supreme Court handed proponents of immigration enforcement a tremendous victory when the High Court upheld the constitutionality of Arizona’s “Legal Arizona Workers Act,” legislation crafted by Judicial Watch client, Arizona State Senate President Russell Pearce, to penalize Arizona businesses that knowingly hire illegal aliens (Chamber of Commerce of the United States of America v. Michael B. Whiting, et al., (No. 09-115)).

The decision also upholds the constitutionality of the provision of the law requiring all Arizona employers to use the federal “E-Verify” system to confirm the eligibility of potential employees.

To put this Supreme Court ruling into context:  The High Court has once again validated the constitutional right of states to help enforce our nation’s immigration laws!

You may recall that on October 28, 2010, Judicial Watch filed an amicus curiae (friend of the court) brief on behalf of State Senate President Pearce with the United States Supreme Court.  As you can see in the following excerpts from the majority opinion crafted by Chief Justice Roberts, the Court essentially echoed Judicial Watch’s principal arguments:

  • “We hold that Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.”
  • “Arizona’s procedures simply implement the sanctions that Congress expressly allowed Arizona to pursue through licensing laws.  Given that Congress specifically preserved such authority for the States, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority…And here Arizona went the extra mile in ensuring that its law closely tracks IRCA’s [The Immigration Reform and Control Act’s] provisions in all material respects.”
  • In response to the Chamber of Commerce’s bogus argument that the law will force businesses to engage in discriminatory hiring practices, Justice Roberts wrote:  “All that is required to avoid sanctions under the Legal Arizona Workers Act is to refrain from knowingly or intentionally violating the employment law…The most rational path for employers is to obey the law—both the law barring the employment of and the law prohibiting discrimination—and there is no reason to suppose that Arizona employers will choose not to do so.”

Regarding the mandated use of E-Verify, a “fast, free and simple” service offered by the U.S. Citizenship and Immigration Services to establish the eligibility of a job applicant, the High Court noted that the federal government has implemented a similar mandate for companies seeking to obtain a federal contract. 

“Arizona’s use of E-Verify does not conflict with the federal scheme,” the Court concluded.  The Court also rejected the Chamber’s claim that the Arizona law, and those like it, will overload the federal E-Verify system.

Obviously, this Supreme Court ruling is extremely significant in the debate over the ability of states to address the illegal immigration crisis – a point that I made clear in the statement I offered to the press following the court’s decision:

This Supreme Court decision is a tremendous victory for the rule of law.  This decision will have an enormous impact on states across the country suffering from the scourge of rampant illegal immigration.  State Senate President Pearce carefully crafted this legislation to be entirely consistent with federal law.  And we are pleased the Supreme Court recognized once again the critical role states must play in enforcing our nation’s immigration laws.  The Obama administration’s plan of lax illegal immigration enforcement, sanctuary policies and amnesty only serve to worsen the illegal immigration problem.  It’s time to take the only approach that works:  law enforcement.

Arizona State Senate President Pearce, meanwhile, addressed the impact the Legal Arizona Worker’s Act will have on illegal immigrant job-seekers:

I applaud the Supreme Court’s decision today upholding the Legal Arizona Workers Act.  This legislation is based on a simple but powerful solution to the illegal immigration crisis:  enforce the law.  It would be ideal if the federal government would do its job and secure the border.  However, in the absence of leadership in Washington, states like Arizona have a responsibility to protect their citizens and uphold the law.  This decision ensures that scofflaw businesses that put profits over patriotism can and will be punished.  At the same time it will encourage illegal aliens in search of employment in Arizona to look elsewhere.

In my statement, you’ll note I reference the “enormous impact” this decision will have on states across the country.  The ruling gives a major “green light” to states across the country to enact similar measures aimed at cracking down on the illegal hiring of illegal immigrants. This same sentiment was expressed by press outlets nationwide, including The New York Times:

The decision by the Supreme Court this week upholding an Arizona law punishing employers for hiring illegal immigrants was an energy boost for state lawmakers across the country who have proposed bills this year to curb illegal immigration. As if they needed it.

According to the National Conference of State Legislatures, state lawmakers set a new record in the first three months of the year, proposing 1,538 bills related to immigration, with 141 measures in 26 states passed into law.  While some of those laws extended new opportunities to illegal immigrants, like permitting them to pay lower in-state tuition rates at public colleges, most of the laws imposed restrictions on them.

(By the way, Judicial Watch is a huge factor in the “in-state tuition” debate referenced by the Times.  You may recall, just a few weeks ago, JW forced the County College of Morris in New Jersey to reverse its tuition policy benefitting illegal aliens.)

And, of course, let the debate begin as to what this ruling will mean for SB 1070, Arizona’s get-tough illegal immigration law if it ultimately reaches the Supreme Court.  This decision gives me reason to hope that the Court will once again validate the important role states can play – and must play – in enforcing federal immigration laws, and upholds yet another law authored by Arizona State Senate President Russell Pearce.

JW Exposes Racial Quota Scandal at Obama Justice Department

Judicial Watch uncovered hundreds of documents from the City of Dayton, Ohio, showing that Department of Justice (DOJ) officials pressured the Dayton Police and Fire Departments to lower testing standards because not enough African-American candidates passed the written exam. On May 25, Judicial Watch also filed a lawsuit against the DOJ to obtain additional records related to the Dayton program after the DOJ failed to respond to a Judicial Watch Freedom of Information Act (FOIA) request (Judicial Watch v. U.S. Department of Justice (No. 11-971)).

Here’s how messed up the situation has gotten at the Obama DOJ when it comes to racial discrimination.  As you may recall, the DOJ abandoned its own lawsuit against members of the radical New Black Panther Party who threatened and intimidated white voters on Election Day 2008.  (The leftist NAACP appears to have helped call the shots on the case dismissal.)

And now these new documents detail a scheme by DOJ officials to bully the City of Dayton, Ohio, into lowering testing standards for firefighter and police recruits because minority candidates did not perform well enough on the written exam.  (One of the most shocking claims by the DOJ is that it’s not all that important for firefighters to be able to read and write!) 

This “racial quota” scheme, while clearly shameless in its intent, also seems to violate laws against discrimination and Supreme Court precedent.

On June 29, 2009, the Supreme Court ruled that city officials in New Haven, Connecticut, violated the rights of white firefighters when they discarded the results of a promotions test because minority firefighters performed poorly on the test.  “The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote for the majority.  (Ricci et al. v. DeStefano et al. (No. 07–1428)).

But that didn’t stop the Obama DOJ.

The documents obtained from Dayton by Judicial Watch include the City’s standards and test materials for police and firefighter candidates produced by Fire & Police Selection, Inc., a company with a 15-year track record of designing and validating tests used to recruit police officers and firefighters.

The documents also include correspondence between the City of Dayton and the DOJ as DOJ officials conducted their analysis of the Dayton recruitment and testing program.  (A “Consent Decree” was signed by both parties to resolve a discrimination lawsuit filed by the DOJ against the City of Dayton which mandated the analysis.)

The City of Dayton submitted ahead of time its detailed recruitment and testing plans (including its written examination) per the request of the DOJ.  Dayton also took steps to focus its recruitment strategy on “minority – African-Americans, Hispanic, Asian, Females and other underrepresented minority groups.”  These plans apparently did not elicit any significant objection from the DOJ until the tests had been administered and scores were calculated.

According to an internal assessment by Fire & Police Selection, Inc., “An exhaustive item-level analysis was conducted on the data from the administration and our statisticians did not identify any significantly problematic items that negatively affected the reliability of the test.”  But after reviewing the test results, the DOJ registered its objections.

In a letter dated February 7, 2011, DOJ Senior Attorney Barbara Thawley informed the City of Dayton the DOJ rejected the written portion of the Dayton examination:  “The United States has determined that the City’s proposed use of the written examination violates…the Civil Rights Act of 1964…because it has a statistically significant disparate impact upon African-American candidates…”  The letter closed by threatening court action.  A subsequent letter on February 17, 2011, suggests the written exam be used as a “pass-fail” screening device, which the DOJ described as a “compromise.”

The DOJ also objected to the use of a written test in general for firefighter applicants.  “With regard to the writing portion for firefighter, it seems unusual to me.  I have never seen a fire department give a writing test to entry level firefighter applicants.  From what I know about the job, it seems very unlikely that an entry level firefighter would have to do much writing,” wrote Ms. Thawley.  “All of our firefighters are either EMT or paramedics and do a lot of report writing,” responded Giselle S. Johnson, Secretary and Chief Examiner, Civil Service Board.

On February 18, 2011, Fire & Police Selection, Inc. CEO Dan Biddle issued a sharp rebuttal to the government’s claims regarding its test.

…we are appalled to learn that the DOJ has branded our tests as “invalid,” despite having been appraised [sic.] openly in advance of our validation steps, methods, and resulting data, and despite having never raised a single concern over the process during the entire seven month-period prior to the exam administration…Click here.

…Only at this point, two months after the exams were given, has the DOJ made any assertion about the unfairness or impropriety of the selection exam, much less that the tests are not valid.  This complete reversal and flip-flop of judgment contradicts DOJ’s position prior to test administration, i.e. that the test was valid.  Given that the only new information introduced after test administration was test scores and passing rates by race, it is not a difficult leap to conclude that the DOJ’s decision to contradict their prior position is drive solely by test scores and passing rates by race…In fact, it is illegal and in direct violation of Title VII and the Equal Protection Clause of the 14th Amendment. Click here.

…It is our opinion that throwing out the exam results will inevitably lend to less qualified candidates taking the place of qualified candidates.  We therefore recommend that the DOJ concedes with the City’s decision to move forward with the exam results, selecting one of three available cutoffs that align with the minimum competency levels established by the validation study. Click here.

According to a report by Dayton’s ABC News affiliate on March 11, 2011, the ultimate compromise struck between the City of Dayton and the DOJ resulted in a lowering of test standards for Police Department candidates:

The Dayton Police Department is lowering its testing standards for recruits.  It’s a move required by the U.S. Department of Justice after it says not enough African-Americans passed the exam.  Dayton is in desperate need of officers to replace dozens of retirees.  The hiring process was postponed for months because the D.O.J. rejected the original scores provided by the Dayton Civil Service Board, which administers the test.  

Under the previous requirements, candidates had to get a 66% on part one of the exam and a 72% on part two.  The D.O.J. approved new scoring policy only requires potential police officers to get a 58% and a 63%.  That’s the equivalent of an ‘F’ and a ‘D’.

One would be hard pressed to find a more egregious example of the unlawful application of race-based quotas.  These documents show the City of Dayton bent over backward to accommodate the DOJ’s ridiculous demands.  But the racialists at the Holder Justice Department did not care a whit about the testing process; they cared only about the results and race quotas. 

Now the DOJ has cut standards and gamed the system to give critical first responder jobs to less qualified candidates.  This puts the public safety at risk.  And, as is typical, this Justice Department can’t be bothered to comply with basic FOIA law and tell the American people exactly what it is up to.

Did FCC Collude with Socialist Organization to Push Government Regulation of Internet?

Not satisfied with staging government takeovers of the financial sector and the healthcare system, the Obama administration is now moving on to the Internet.

We recently uncovered documents from the Federal Communications Commission (FCC) that show officials at the FCC colluded with the radical leftist Free Press organization to publicly push a new plan to regulate the Internet under the FCC’s so-called “net neutrality” program.

In December 2010, the FCC voted 3-2 to advance its “net neutrality program” – a decision that seems to fly in the face of an April, 2010, federal appeals court ruling that the FCC had exceeded its authority in seeking to regulate the Internet and enforce “net neutrality” rules.  

And what is the “net neutrality” debate really all about?

Supporters of “net neutrality,” including Free Press, are trying to make the ridiculous claim that high-speed Internet access is a “civil right,” and are recommending new government regulations to provide taxpayer-funded broadband Internet access to all populations, especially those deemed “underserved.” 

Opponents of “net neutrality” realize the program is designed to impose greater government control over the Internet and will result in less access, not more.  It will also stifle innovation.  Moreover, opponents of “net neutrality,” also dispute the claim that Internet access is a basic civil right protected by the U.S. Constitution. 

Judicial Watch uncovered internal correspondence showing unusual coordination by some officials at the FCC and Free Press in pushing the “net neutrality” agenda in the run-up to the controversial FCC vote in December:

However, you should be aware that Color of Change is rather highly politicized. They are lead on the campaign to strip Glenn Beck of advertisers. And Van Jones is one of the founders. Not that these things should dissuade you from inviting them – I just wanted you to know.” (Van Jones was forced to resign from his position as Obama’s “Green Jobs czar,” in part because he had signed a petition in support of the 9/11 “Truther” movement, which believes the Bush administration masterminded the 9/11 terrorist attacks.)

You’ve heard me say before, personnel is policy.  And when you dig a little bit into Free Press to see who is behind the organization, you get a very clear sense of what this “net neutrality” nonsense is really all about.  Free Press has deep ties to radical leftists and socialists.  Robert McChesny, former editor of the socialist magazine Monthly Review, is the co-founder and president of Free Press.  Kim Gandy, the Chairman of the Free Press Board of Directors, served as the President of the leftist National Organization for Women from 2001-2009.  Craig Aaron, Free Press’s President and CEO, formerly worked as managing editor of the socialist tabloid In These Times.  Free Press is financially supported by George Soros Open Society Institute and other hard-Left groups such as the Ford Foundation and Democracy Alliance. 

Forget about the innocuous sounding name.  Net neutrality is just another Obama power grab.  This is nothing less than the Obama administration’s attempt to stage a government takeover of the Internet under the guise of “net neutrality.” 

So it should come as no surprise that an organization with socialist ties is driving the net neutrality agenda from inside the Obama administration.  The FCC is supposed to be an independent agency that follows the law.  The American people should be deeply troubled by the fact that the Obama administration, on issue after issue, seems to be run by shadowy leftist organizations.  Our government is supposed to be “of the people, by the people, and for the people,” not “of the Left, by the Left, and for the Left.”

Until next week…

Tom Fitton

Judicial Watch is a non-partisan, educational foundation organized under Section 501(c)(3) of the Internal Revenue code. Judicial Watch is dedicated to fighting government and judicial corruption and promoting a return to ethics and morality in our nation’s public life. To make a tax-deductible contribution in support of our efforts, click here.

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