Supreme Court and Illegal Immigration
December 10, 2010
From the Desk of Judicial Watch President Tom Fitton:
Will High Court Back AZ Crackdown on Employers Who Hire Illegal Aliens?
In November, I reported to you that Judicial Watch filed an amicus curiae (“friend of the court”) brief on behalf of Arizona State Senator Russell Pearce in the U.S. Supreme Court supporting Arizona’s “Legal Arizona Workers Act.” (Pearce will become President of the Arizona State Senate next month.)
The Legal Arizona Workers Act was crafted by State Senator Pearce to penalize by suspending or revoking their state and local licenses Arizona businesses that knowingly hire illegal aliens. The law also requires employers to check the legal status of their job applicants by using a free online federal program called “E-Verify,” which checks names and identifying documents to determine if these individuals are eligible to work in the United States.
Well the Supreme Court held a highly anticipated argument in the case on Wednesday. I attended the arguments with Senator Pearce and my Judicial Watch attorney colleagues and here’s my read: It looks promising that State Senator Pearce’s law will be upheld for the reasons we outlined in our brief.
And that was pretty much the takeaway by the press as well. CNN reported the Court offered “tenuous support” for the law. While Bloomberg suggested the Court was clearly “inclined” to uphold the lower court decision, which validated the law:
U.S. Supreme Court justices signaled they are inclined to uphold an Arizona law that threatens companies with the revocation of their corporate charters if they hire illegal aliens.
Chief Justice John Roberts and Justice Antonin Scalia took the lead in aiming a barrage of questions at a lawyer challenging the measure in an hour-long hearing in Washington. Roberts pointed to a federal statute that carves out a role for states while Scalia focused on what he said was the U.S. government’s failure to enforce its immigration laws.
“What Arizona says has occurred here is that the scheme in place has not been enforced, and Arizona and other states are in serious trouble, financially and for other reasons, because of unrestrained immigration,” Scalia said.
A ruling upholding the measure would spur enactment of similar laws elsewhere, advocates on both sides of the issue say. The case also may provide a hint as to the court’s approach to other state immigration measures, including a separate Arizona statute that gives local police a greater role in arresting illegal immigrants.
(As you know, Judicial Watch is heavily involved in that “other” major illegal immigration case, which is currently before the U.S. Court of Appeals for the Ninth Circuit. The Obama administration filed a lawsuit against the State of Arizona in an attempt to invalidate Arizona’s new get-tough illegal immigration law. JW represents Senator Pearce, who authored that legislation as well.)
Aside from whatever conclusions can be drawn by the Court’s line of questioning, the U.S. Chamber of Commerce and the illegal alien lobby groups challenging the Legal Arizona Worker’s Act have an uphill battle.
Liberal Justice Elena Kagan is recused from the case because of her work on this issue while serving as Solicitor General. That means the illegal immigration lobby would have to convince 5 of the 8 remaining Justices to overturn the lower court ruling. A tie would uphold the lower court ruling.
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As The Washington Post notes, “Justices Stephen G. Breyer and Sonia Sotomayor seemed most supportive of the view that the law intruded on federal responsibilities.” Staying true to her “empathic” tendencies, Sotomayor was the only Justice who refused to use the word “illegal” when referring to illegal aliens, opting instead for the term “undocumented.” (Our Corruption Chronicles blog has the details.) And Justice Breyer, in judicial activist form, noted how he liked to look beyond the “text” of laws for “enlightenment.” You can read the transcript of the argument here.
Regarding the legal arguments, the key federal statute in question, which was implemented in 1986, says that states cannot penalize companies for hiring illegal aliens “except through licensing and similar laws,” a clause that gives Arizona all of the permission it needs to implement its law.
“Congress swept pretty broadly,” Justice Roberts said during the hearing. “It said not just ‘licensing laws’ but ‘licensing and similar laws.’”
As Judicial Watch noted in its amicus brief, which you can read in full here, State Senator Pearce was very mindful of the intent of Congress when crafting his law:
Senator Pearce authored legislation that is consistent with federal law. The “Legal Arizona Workers Act” prohibits employers from knowingly or intentionally employing unauthorized workers. Additionally, all Arizona employers must use the federal “E-Verify” program to confirm the employment eligibility of new employees. The “Legal Arizona Workers Act” falls well within the traditional police powers of the State. This Court therefore must reject Petitioners’ attempt to protect scofflaw employers at the expense of legal Arizona workers by overturning well-established law.
The Supreme Court is expected to resolve this case by July 2011.
Following the Supreme Court hearing, Judicial Watch held an educational panel across town at the National Press Club entitled, “What Next in the Battle over Illegal Immigration?” with State Senator Pearce. I heard plenty of positive reviews from those who watched it live on the Internet, so I’m sure you’ll enjoy Senator Pearce’s remarks. He’s a remarkable man, a fine leader, and a patriot. You can see the video for yourself here.
Judicial Watch Sues Mayor Bloomberg’s Office for Ground Zero Mosque Documents
New York Mayor Michael Bloomberg’s office is stonewalling Judicial Watch’s simple open records request regarding the Ground Zero Mosque. And now it is going to have to answer to the state’s High Court, courtesy of a Judicial Watch lawsuit.
In November we filed a petition with the New York State Supreme Court to compel the Mayor’s office to comply with our Freedom of Information Law (FOIL) request regarding contacts between the Mayor’s office and Ground Zero Mosque Imam Feisal Abdul Rauf and controversial Muslim organizations.
Here’s what we’re after — as detailed in our August 9, 2010, open records request:
a. All records of communication between the Office of the Mayor and Imam Feisal Abdul Rauf concerning the Cordoba Initiative’s proposed Cordoba House project.
b. All records of communication between the Office of Mayor Bloomberg and any of the following entities:
- Council of American-Islamic Relations (CAIR);
- Islamic Society of North America (ISNA);
- International Institute of Islamic Thought (IIIT);
- American Society for Muslim Advancement (ASMA);
- American Arab Anti-Discrimination Committee (ADC);
- Muslim Public Affairs Council (MPAC).
On August 19, 2010, Mayor Bloomberg’s office acknowledged our request and promised to respond within twenty (20) days. After the Mayor’s office failed to respond by its self-imposed deadline and again to a subsequent administrative appeal, Judicial Watch went to the New York Supreme Court.
As many of you know by now, The Cordoba Initiative, led by Imam Rauf, plans to build a 13-story mosque and community center in the shadow of Ground Zero, the site of the 9/11 terrorist attacks on the World Trade Center. And so, adjacent to the spot where 3,000 innocents were murdered by radical Muslims, there will soon be a monstrous Muslim entertainment complex, which will include a sports arena, daycare center, theater and restaurants. (Hey, why not just add a dance club so supporters of the mosque could almost literally dance on the graves of the 9/11 victims?)
According to AFP: “Supporters of the project, including New York Mayor Michael Bloomberg, say the multi-story Islamic center project would build a bridge between the West and the Muslim world.” However, the majority of Americans know this is absurd. According to a CNN poll, 68% of Americans oppose the Ground Zero mosque.
One New Yorker perhaps best summed up the opposition: “This is a disgrace. They were screaming Allahu Akbar (God is greatest) when the planes were hitting these buildings. Remember, we still have two wars going on.”
And who is to blame for the 9/11 attacks and those two wars? If you ask the man behind the mosque, Feisal Abdul Rauf, that would be the United States.
During a 60 Minutes interview about the 9/11 terrorist attacks, as reported by CNS News, Rauf said: “I wouldn’t say that the United States deserved what happened. But the United States’ policies were an accessory to the crime that happened…we have been an accessory to a lot of innocent lives dying in the world. In fact, in the most direct sense, Osama bin Laden is made in the USA.”
Are you getting the “blame America” theme here?
Regarding the Islamic organizations referenced in Judicial Watch’s open records request, federal prosecutors named the Council of American-Islamic Relations as an unindicted co-conspirator in the terrorism financing trial against the Holy Land Foundation, which was shut down by the federal government for funding terrorism.
And check out what the former leader of Islamic Society of North America, Muzammil H. Siddiqi had to say in October 2000, just before the 9/11 terrorist attacks: “America has to learn. If you remain on the side of injustice, the wrath of God will come. Please all Americans, do remember that, Allah is watching everyone. If you continue doing injustice and tolerating injustice, the wrath of God will come.”
Of course, the wrath did come less than a year later, but not from God. From a band of maniacal Muslim terrorists who flew American planes into the World Trade Center, near where their apologists now want to build their mosque.
The bottom line here is this: Mayor Bloomberg’s support for the Ground Zero mosque needs to be fully explored. New Yorkers are going to want to know how closely he’s working with the radicals supporting the Ground Zero mosque. It is certainly troubling that the Mayor’s office cannot be bothered to comply with the open records law. It certainly raises suspicions that the Mayor has something to hide.
(For more information on the so-called “mainstream” Muslim organizations behind the Ground Zero Mosque, click here to read Judicial Watch’s special report entitled, “Muslim Charities: Moderate Non-Profits or Elaborate Deceptions”.)
Judicial Watch Back in Court over LA’s Double-Dipping Judges
Judicial Watch was back in court again trying to put a stop to a wasteful double dipping scheme that has allowed judges in Los Angeles County to amass approximately $300 million in illegal payments. Judicial Watch attorney (and former Los Angeles County prosecutor) Sterling “Ernie” Norris made JW’s arguments before the California Court of Appeal, Fourth Appellate District, the same court, incidentally, that handed Judicial Watch an initial victory in our lawsuit in 2008. Paul Orfanedes, our Director of Civil Litigation, represented Judicial Watch’s client at the hearing as well.
But before we get to the court proceedings, let me just provide a little context by reviewing the details of this lawsuit. (For additional reference, Leslie Dutton and her Full Disclosure Network have done some outstanding reporting on this scandal from the very beginning. Click here to see her special report on this lawsuit and the recent court hearing. It is a rare opportunity to see your Judicial Watch in action before a court.)
Now, back in 2006, our taxpayer client, Harold Sturgeon, filed a lawsuit against Los Angeles County for allowing individual Los Angeles County judges to amass more than $35,000 annually in cash allowances from the county to pay for benefits and perks they are already receiving from the state. The California Superior Court essentially dismissed the case, ruling in favor of Los Angeles County. But Judicial Watch filed an appeal with the California appellate court and emerged victorious. Here’s a quick squib from the 37-page opinion, written by Associate Justice Patricia Benke:
“Section 19, article VI of the California Constitution requires that the Legislature ‘prescribe compensation for judges of courts of record…The duty to prescribe judicial compensation is not delegable.’ Thus the practice of the County of Los Angeles (the county) providing Los Angeles County superior court judges with employment benefits, in addition to the compensation prescribed by the Legislature, is not permissible. Accordingly, we must reverse an order granting summary judgment in favor of the county in an action brought by a taxpayer who challenged the validity of the benefits the county provides to its superior court judges.”
Case closed, right? Not so fast.
In February 2009, California Governor Schwarzenegger called the California State Legislature into a special “emergency” session to deal with the budget crisis, an issue totally unrelated to the double-dipping scheme. Nonetheless, the legislature unlawfully used the opportunity to institute a legislative “fix” to continue the double-dipping policy, in direct violation of the appellate court order.
The legislation, known as Senate Bill X2 11, was slipped through by the LA judges in the middle of the night while everyone was focused on the state’s budget crisis. There was no discussion, no debate and it was signed into law by Governor Schwarzenegger. Incredibly, the Los Angeles County judges hired a high-price lobbying firm to lobby for this illicit legislative maneuver.
Now here’s something shocking about this legislation. Not only did it allow for the double-dipping scheme to continue in violation of a court order, but as Ms. Dutton emphasized on her Full Disclosure program, the legislation improperly “gave retroactive criminal immunity to the judges for having taken the illegal payments for the last twenty years.”
And so, at issue in the appellate court hearing was whether the legislature’s actions were constitutionally permissible. Judicial Watch attorney Norris told the appeals court that for the legislature “to implement what your Honors have declared unconstitutional, to come back with a legislative fix for LA County is not the proper thing to do.”
The purpose of the Governor’s proclamation, Mr. Norris pointed out, was “to consider and act upon legislation to address the economy including, but not limited, to efforts to stimulate California’s economy, create and retain jobs and to streamline the operations of state and local government.” And, as JW has pointed out in court briefs, when the Governor calls the legislature into special session, “it has the power to legislate only on subjects specified in the proclamation.”
Judicial compensation was not on the list.
“If one can stand up with a straight face and say [this legislation] comes within that purview, I suggest it cannot. It is not common sense. And it should never have been considered,” continued Norris. When asked by one of the appellate judges what language Mr. Norris would suggest using to settle the issue, Mr. Norris simply said, “Find SB X2 11 unconstitutional.”
However the appellate court judges, who have “taken a lot of heat” for rendering their earlier decision according to Ms. Dutton, did not seem eager to once again step into the controversy: “I wonder if we should withhold issuing an opinion for a while, see what happens,” said appellate Judge Gilbert Nares, while noting, “I’m sure we’ll see all of you again.”
We expect a ruling from the court within a few months. However, no matter which way the court goes, there will be further litigation. Los Angeles judges will not give up their illegal pay. And we will not give up on our legal campaign to see these wasteful payments abolished.
Until next week…
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