The Government as Lawbreaker, Again

by Andrew P. Napolitano on December 16, 2011

Can Congress make legal something that is inherently wrong, and can Congress take a freedom that is a part of our humanity and make its exercise criminal?
If there were no First Amendment, would we still have the freedom of speech? The answer, like many in the law, depends on what values underlie the legal system. If the government is the source of our rights, then without the First Amendment’s guarantees of free speech, any government could legally punish you for saying words and expressing thoughts it hated or feared; and it could even silence you before you spoke.

On the other hand, if our rights come from our humanity and our humanity is a gift from God, then we would still enjoy the freedom of speech, whether it is insulated from government interference by the First Amendment or not. The wording of the First Amendment itself gives us a peek at what its authors thought. They wrote: “Congress shall make no law … abridging the freedom of speech.” It doesn’t say that Congress shall grant freedom of speech; rather, it prohibits Congress from interfering with it. And by referring to free speech as the freedom of speech, the drafters recognized that the freedom of speech already existed before the country that they were founding even came to be.

The same founders who drafted the First Amendment also accepted Thomas Jefferson’s values articulated in the Declaration of Independence that we are endowed by our “Creator with certain inalienable rights, (and) that among these are life, liberty, and the pursuit of happiness.” It is clear beyond serious dispute from just scratching the surface of history that wedded to this country at its birth is the Judeo-Christian concept of the natural law. The natural law is the self-evident truth that our rights come from our humanity; that we have them by virtue of our mortal existence; that they do not depend upon government for their existence; that they do not vary as a consequence of where we are now or where our mothers were when we were born; and thus we remain fully endowed of these rights so long as we live, wherever we go. If you believe that we are the present result not of a supreme being, but of natural selection, you can accept as the founders did that humanity – and not government – is the repository of freedom.

I suspect that most people accept the natural law. We have even seen people in the government claim to accept it. Yet almost as soon as they take the oath to uphold these values, they start rejecting them. In the Patriot Act, for example, Congress made it a crime to reveal that the feds came calling on you with a search warrant in which a federal agent authorized himself to search records that you might have. This, of course, not only violates the Fourth Amendment, which stipulates that only judges may authorize searches, but it also violates the First Amendment because it punishes speech.

This week, Congress is wrestling with more proposals that violate the natural law. One of our fundamental natural rights is the right to be free from government restraint, absent a proven case of criminal behavior. This, too, was articulated by the framers when they wrote in the Fifth Amendment: “No person shall be … deprived of life, liberty, or property without due process of law.” This recognizes the right to be free from restraint by the government, unless the government, utilizing due process, can make a case against you. That means a fair trial in your presence, with lawyers defending you and jurors deciding your case under the guidance of a neutral judge.

Yet, your representatives in Congress are about to authorize the president to violate your natural rights by enacting legislation that would permit him to use the military to arrest Americans and restrain them without due process. Even King George III, against whose armies the colonists fought for freedom, did not have the power to do that. And, just because Congress votes to make these acts of tyranny legal does not mean they are constitutional. The Constitution is a higher law than anything Congress can write; and all that Congress writes must conform to it.

Since the Constitution was written to keep the government from violating our natural rights, what can you do when the very government we have hired to protect those rights is violating them? If you live in Iowa or New Hampshire, you can vote for the only Republican candidate running for president who believes that the Constitution means what it says. You know who he is.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at the Fox News Channel, and the host of “FreedomWatch” on the Fox Business Network. His latest book is It is Dangerous to be Right When the Government is Wrong: The Case for Personal Freedom. This article originally appears courtesy of Lew Rockwell.

Congressman says Obama's immigration strategy a “backdoor amnesty policy"

Homeland Security NewsWire: In your opinion has the Obama administration’s immigration strategy been effective? In particular, has the administration’s approach of targeting employers who hire undocumented workers as well as illegal aliens with criminal records been successful?

Representative Michael McCaul (Texas 10th District): What should not go unnoticed is this administration’s policy of incentivizing people to come into the United States illegally by allowing them to apply for work permits if they aren’t violent criminals.

This goes around the will of the Congress, and I think, is akin to a backdoor amnesty policy.  As a former federal prosecutor, I understand prosecutorial discretion, but there is a difference between not deporting and giving someone a job. This kind of backdoor amnesty policy is a serious concern to the American worker and to our national security. An alarming example of this would be Mohammed Atta, who was one of the 9/11 hijackers who overstayed his visa but did not have a criminal record.

HSNW: Given the current fiscal climate on the Hill and the more than $1 billion SBInet project that was ultimately cancelled, are there any cost-effective solutions to border security that you are examining in particular?

MM: Technology working in concert with boots on the ground is the key to securing the border. Nearly four years ago I started pushing for DHS to incorporate existing DOD technology, including sensor surveillance technology, that’s already proven to work on the Afghanistan-Pakistan border. This equipment is readily available and it would save taxpayers’ money because there would be no additional R&D cost.

In addition, last month I passed several amendments through the Homeland Security Committee addressing border security. One of them secures two more Unmanned Aerial Vehicles for the Southwest border. Another scraps a program that was wasting taxpayer dollars on radiation detectors that did not work and diverts $15 million to our BEST teams, which confiscate southbound weapons and cash that arm and fund the cartels. This reallocation specifically targets the life-blood of the cartels without increasing the budget.  Both of these will have a direct impact on our ability to seal the border and disrupt the movement of human, drugs, and weapons trafficking.

HSNW: Cities and states across the country have been widely opposed to the Secure Communities program and there has been significant confusion surrounding whether participation is mandatory or not. In light of the criticism surrounding the program, what can be done to bring states and cities on board and assuage opponents of Secure Communities?

MM: The Secure Communities program is an incredible asset of the Immigration and Customs Enforcement agency that we need to continue to support. Through the program we have seen a 71 percent increase in the deportation of convicted criminals, which contributed to 81,000 more criminal removals in FY 2010 than in FY 2008. These are incredible numbers of criminals that are no longer roaming our towns and cities.

The key to making this program more successful is open communication and real dialogue. ICE should more thoroughly communicate its role to state and local authorities so they understand the benefits. When a police department makes an arrest, the FBI automatically cross-references the fingerprints with ICE so it can provide the suspect’s immigration status to local authorities. If the suspect is here illegally, ICE sends agents to make the removal.

The key here is dialogue and communication. ICE must do more than distribute electronic guides and pamphlets to ensure states and local law enforcement understand the program and how ICE is addressing the issues that states and law enforcement are bringing up.

HSNW: With residents living along the U.S.– Mexico border increasingly concerned about the influence of Mexican drug cartels in the United States, what can be done to better secure the border from violence and smugglers?

MM: This goes back to technology supplementing boots on the ground.  There is no doubt we need more border patrol agents. However, it is not realistic to think we can line them up side by side across a 2,000-mile porous border. Our agents need the benefit of Unmanned Aerial Vehicles and infrared sensor technology to conduct surveillance, and then the resources to quickly pursue what is found.

HSNW: Finally, in your view, what is the greatest challenge in securing U.S. borders? That is to say, despite the billions of dollars spent and the thousands of troops and border agents deployed, how are cartels and non-U.S. citizens able to regularly cross the border?

MM: Same as above – porous border and technology. 

Words Do Have Meaning, Use Them Wisely

Calling illegal aliens “immigrants” is an insult to those who come here legally

By Dave Gibson, Immigration Reform Examiner

The issue of “immigration” played a prominent role during Thursday night’s GOP presidential debate. However, it was not “immigration” that was being discussed, but rather “illegal immigration.”

While most people now refer to illegal aliens as “immigrants” and often use the blanket term of “immigration,” even when referring to those who enter this country illegally en masse, it is doubtful they realize the effort that has been gone into convincing them to ignore the definite distinctions between the terms.

Referring to illegal aliens as “immigrants” is not only dishonest, it is incredibly insulting to the millions of folks who have come to this country legally, and belittles their contributions.

During a July 2010 webcam interview with NBCLA, Arianna Afsar, a UCLA sophomore, and recently crowned Miss California came out strongly against amnesty, saying: “I think that people who want to be a United States citizen need to come over here legally in order to get the privileges that every American receives.”

Afsar’s father is an immigrant, from Bangladesh. He also helped three family members come here. All arrived through legal means.

Afsar told the reporter: “It ended up taking him 10 years, but he did it legally. I don't think that if you are close to the border that you have the right to be given the rights of a United States citizen.”

Not surprisingly, on their website (nbclosangelescom), NBC described Afsar’s belief that the rule of law should apply to everyone as “controversial.”

Unfortunately, just as they have with so many issues, the left has co-opted the language in this case. For instance, the act of aborting a baby is no longer “abortion,” but has transformed into “a woman’s right to choose.”

Politicians and advocacy groups who continue to push for a so-called “path to citizenship” for illegal aliens conveniently ignore the fact that such a “path” already exists and it has been successfully taken by millions of people. Of course, it is not quick, and it does not reward criminals.
Changing the language to soften or gain acceptance for an unpopular, or even immoral or illegal activity is simply a propaganda tactic.

We are constantly subjected to such propaganda from the likes of President Obama and former House Speaker Newt Gingrich when they speak about the difficulties one faces as an immigrant to this country. Of course, they are not referring to legitimate immigrants, but to the millions of illegal aliens, now placing a huge burden upon this nation.

While our success may be as a “nation of immigrants,” we are also a nation of laws and turning our backs on either will undoubtedly spell our demise.

California's Not Dreamin'

This Is the Nightmare of an Obama Second Term
by Roger Hedgecock  (Former Mayor of San Diego )

I live in California. If you were wondering what living in Obama's second term would be like, wonder no longer. We in California are living there now.

California is a one-party state dominated by a virulent Democratic Left enabled by a complicit media where every agency of local, county, and state government is run by and for the public employee unions. The unemployment rate is 12%.

California has more folks on food stamps than any other state, has added so many benefits and higher rates to Medicaid that we call it "Medi-Cal." Our K-12 schools have more administrators than teachers, and smaller classes but lower test scores and higher dropout rates with twice the per-student budget of 15 years ago. Good job, Brownie.

This week, the once and current Gov. Jerry "Moonbeam" Brown had to confess that the "balanced" state budget adopted five months ago was billions in the red because actual tax revenues were billions lower than the airy-fairy revenue estimates on which the balance was predicated.

After trimming legislators' perks and reducing the number of cell phones provided to state civil servants, the governor intoned that drastic budget reductions had already hollowed out state programs for the needy, law enforcement and our school children. California government needed more money.

Echoing the Occupy movement, the governor proclaimed the rich must pay their fair share. Fair share? The top 1% of California income earners currently pays 50% of the state's income tax.

California has seven income tax brackets. The top income tax rate is 9.3%, which is slapped on the greedy rich earning at least $47,056 a year. Income of more than $1 million pays the "millionaires' and billionaires'" surcharge tax rate of 10.3%.

Brown's proposal would add 2% for income over $250,000. A million-dollar income would then be taxed at 12.3%. And that's just for the state.

Brown also proposed a one-half-cent sales tax increase, which would bring sales taxes (which vary by county) to 7.75% to 10%. Both tax increases would be on the ballot in 2012.

The sales tax increase proposal immediately brought howls of protest from the Left (of Brown!). Charlie Eaton, a sociology grad student at UC Berkeley and leader of the UC Student-Workers Union, said, "We've paid enough. It's time for millionaires to pay."

At least five other ballot measures to raise taxes are circulating for signatures to get on the 2012 ballot in California. The governor's proposals are the most conservative.

The Obama way doesn't end with taxes.

The governor and the state legislature continue to applaud the efforts of the California High Speed Rail Authority to build a train connecting Los Angeles and San Francisco. Even though the budget is three times the voter-approved amount, the first segment will only connect two small towns in the agricultural Central Valley. But hey, if we build it, they will ride.

And we don't want to turn down the Obama bullet-train bucks Florida and other states rejected because the operating costs would bankrupt them. Can't happen here—we're already insolvent.

If we get into real trouble with the train, we'll just bring in the Chinese. It worked with the Bay Bridge reconstruction. After the 1989 earthquake, the bridge connecting Oakland and San Francisco was rebuilt with steel made in China. Workers from China too. Paid for with money borrowed from China. Makes perfect sense.

In California, we hate the evil, greedy rich (except the rich in Hollywood and in sports, and in drug dealing). But we love people who have broken into California to eat the bounty created by the productive rich.

Illegal aliens get benefits from various generous welfare programs, free medical care, free schools for their kids, including meals, and of course, instate tuition rates and scholarships too. Governor Perry, California has a heart. Nothing's too good for our guests.

To erase even a hint of criticism of illegal immigration, the California Legislature is considering a unilateral state amnesty. Democrat State Assemblyman Felipe Fuentes has proposed an initiative that would bar deportation of illegal aliens from California.

Interesting dilemma for Obama there. If immigration is exclusively a federal matter, and Obama has sued four states for trying to enforce federal immigration laws he won't enforce, what will the President do to a California law that exempts California from federal immigration law?

California is also near fulfilling the environmentalist dream of deindustrialization.

After driving out the old industrial base (auto and airplane assembly, for example), air and water regulators and tax policies are now driving out the high-tech, biotech and even Internet-based companies that were supposed to be California's future.

The California cap-and-trade tax on business in the name of reducing CO2 makes our state the leader in wacky environmentalism and guarantees a further job exodus from the state.

Even green energy companies can't do business in California. Solyndra went under, taking its taxpayer loan guarantee with it.

No job is too small to escape the regulators. The state has even banned weekend amateur gold miners from the historic gold mining streams in the Sierra Nevada Mountains.

In fact, more and more of California's public land is off-limits to recreation by the people who paid for that land. Unless you're illegal. Then you can clear the land, set up marijuana plantations at will, bring in fertilizers that legal farmers can no longer use, exploit illegal farm workers who live in hovels with no running water or sanitation, and protect your investment with armed illegal aliens carrying guns no California citizen is allowed to own.

The rest of us only found out about these plantations when the workers' open campfire started one of those devastating fires that have killed hundreds of people and burned out thousands of homes in California over the last decade.

It was said after California's Proposition 13 in 1978 cut property tax rates and was copied in other states, that whatever happened in California would soon happen in your state.

You'd better hope that's wrong. 

TOP 10 IMMIGRATION STORIES FOR 2011

By Kevin R. Johnson, Guest blogger December 19, 2011 

It has been an exciting immigration year. I reviewed the ImmigrationProf blog postings for the year and came up with my top 10 immigration and immigration-related stories in the United States.

1. Supreme Court to review Arizona’s S.B. 1070
The US Supreme Court has decided to review Arizona’s controversial immigration law known as S.B. 1070. The US Court of Appeals for the Ninth Circuit affirmed a preliminary injunction barring implementation of four core provisions of the Arizona law, including the section that would require local police to verify the immigration status of anyone they had a “reasonable suspicion” of believing is undocumented. Opponents of the law have claimed that its implementation would, among other things, increase the racial profiling of Latinos.

2. US Department of Justice finds that Sheriff Joe Arpaio’s Maricopa County Sheriff Office violated civil rights of Latinos and immigrants
Sheriff Joe Arpaio has been dubbed “America’s Toughest Sheriff,” but he has been criticized on many occasions for violating the civil rights of Latinos and immigrants. Earlier this month, the US Department of Justice issued a detailed report finding, based on a thorough investigation, that the Maricopa County Sheriff's Office in Arizona had engaged in a pattern and practice of “unconstitutional policing” and violated the civil rights of Latinos and immigrants in police stops and the conditions of detention. Read the report documenting the violations. It is troubling that such lawlessness could go on for so long.

3. Obama administration sets another deportation record
The Obama administration, pursuing its “enforcement now, enforcement forever” deportation policy set another removal record for the fiscal year of nearly 400,000. Last year's record-setting number of removals made the list of top immigration news stories for 2010.

4. The Obama administration unveils “prosecutorial discretion” guidelines and promises to review all open removal cases to ensure that they are priority cases
Provoking criticism from advocates of greater immigration enforcement, the Obama administration issued new prosecutorial discretion guidelines. In a surprising move, the administration also called for the review of hundreds of thousands of removal cases to see if they deserve priority treatment under the new guidelines. Implementation has been spotty with many undocumented immigrants uncertain of where they stand.

5. Alabama passes toughest state immigration law: Georgia, South Carolina also follow Arizona’s lead
Consistent with its checkered civil rights history, the Alabama legislature in June passed what its supporters claimed was the "toughest" state immigration law in the United States, no small feat with state after state seeking to earn that “honor.” Georgia and South Carolina also have Arizona-like immigration laws, which have been subject to legal challenge. The US government's challenge to the Alabama law is pending in the US Court of Appeals for the Eleventh Circuit.

6. "Secure Communities" program remains controversial
The Obama administration has championed the Secure Communities program, which, it says, targets, criminal offenders for removal. Some state and local law enforcement agencies have resisted participation. Controversy ensued when the administration announced that Secure Communities was not a “voluntary” program. In any event, while the program has boosted removal numbers, most of those removed appear to have been guilty of low level criminal offenses (traffic violations, etc.).

7. Failure of Congress to pass comprehensive immigration reform
It is hard to say that it is news but, for another year, Congress has failed to enact comprehensive immigration reform. President Obama has registered his support for reform but Congress does not appear to want to get around to it until the next elections. President Obama promised to pass comprehensive immigration reform his first year in office. The failure of comprehensive immigration reform also made the top news stories for 2010.

8. Congresswoman shot in Tucson
Last January, Congresswoman Gabrielle Giffords, as well as US District Judge John Roll and five others, were shot in a murderous rampage by a deranged gunman in Tucson, Arizona. Although not really immigration news, the killings occurred in a state that had for years seen overheated political rhetoric over immigration. Miraculously, Congresswoman Giffords is recovering well from the shooting.

9. Anti-immigrant activist convicted of murder
Anti-immigrant activist Shawna Forde was convicted of murdering an Arizona father and daughter in a home invasion robbery that turned horribly bad. Prosecutors claimed that Forde sought money to support her anti-immigrant political activities. She was convicted and given the death penalty. The mainstream media paid little attention to this case.

10. Death on the US/Mexico border continues
This is not really news because nobody seems to be paying any attention. But, due to heightened enforcement along the US-Mexico border, migrants continue to die horrible deaths in deserts and mountains in the region. This story also made the top immigration news for 2010.

--- Kevin R. Johnson is dean and professor of law at the University of California, Davis, School of Law. He is an editor of  ImmigrationProf Blog.

 

We're Enforcing Federal Immigration Law

Alabama Speaker of the House Mike Hubbard, R-Auburn.

Since Alabama passed a law cracking down on illegal immigration, special interest groups and the Obama Justice Department have misrepresented facts about the law in an overt effort to generate fear and anger. They do this because it is difficult to convince reasonable Americans that it is somehow unfair to require proof of legal residency from those wishing to receive public benefits, or that it is somehow discriminatory to require employers to hire only legal, documented workers.

What they won't tell you is that our law's most ballyhooed provisions are virtually identical to federal law. Current federal immigration law penalizes employers for hiring undocumented workers; requires non-citizens to carry documentation; and prohibits conduct that aids and abets federal immigration violations.

Rather than resist federal laws, as was unfortunately the case in the 1950s and 1960s, Alabama today is insisting that federal law be enforced, by state officers if necessary. That's because, in Alabama, we believe obedience to law ensures fairness and protects the rights of everybody.

Conversely, the federal government, particularly the Obama administration, has discouraged fairness and endangered the rights of Americans by refusing to deal with the nation's illegal immigration problem.

Opinions expressed in USA TODAY's editorials are decided by its Editorial Board, a demographically and ideologically diverse group that is separate from USA TODAY's news staff.
Most editorials are accompanied by an opposing view — a unique USA TODAY feature that allows readers to reach conclusions based on both sides of an argument rather than just the Editorial Board's point of view.

It's past time to secure this country's borders and build an immigration system that works. Until the president and Congress get serious and take action, more states will join Alabama, Arizona, Indiana, South Carolina, Utah and others to take it upon themselves to ensure the current law is enforced.

In Alabama, we're focused on making our law work better, clearing up misconceptions and correcting any portions that might be vague or require additional definitions. We seek to ensure more efficient and less burdensome application of the law for businesses and local governments. Lawmakers are right now working with business leaders to see what updates might be necessary to maintaining what we believe is the most business-friendly environment anywhere in America.

Alabama wants a positive work environment, and we welcome legal residents to be a part of it. We can have a thriving business environment that rivals any in the world while also shutting off the magnet drawing illegal immigrants to our state.

Definitions

Alien, Immigrant, Illegal Alien, Undocumented Immigrant

These related terms are often used in deliberately confusing and conflicting ways.  Here is a set of definitions that will help you sort out the difference.

IMMIGRANT:  In popular usage, an "immigrant" is generally understood to be a person who migrates to another country, usually for permanent residence.  Under this definition, therefore, an "immigrant" is an alien admitted to the U.S. as a lawful permanent resident.   The emphasis in this definition is upon the presumptions that (1) the immigrant followed U.S. laws and procedures in establishing residence in our country; (2) he or she wishes to reside here permanently; and (3) he or she swears allegiance to our country or at least solemnly affirms that he/she will observe and respect our laws and our Constitution.

ALIEN:  By contrast, an "alien" is generally understood to be a foreigner -- a person who comes from a foreign country -- who does not owe allegiance to our country.

ILLEGAL ALIEN:  An "illegal alien" is a foreigner who (1) does not owe allegiance to our country; and (2) who has violated our laws and customs in establishing residence in our country.  He or she is therefore a criminal under applicable U.S. laws.

The term "illegal alien" is used by U.S. citizens who believe that non-citizens entering our country must comply with our immigration laws. 

The term "illegal alien" is predicated upon U.S. immigration law which requires foreigners entering the U.S. to comply with our country's rules and laws regarding entry into, and residence within, our country.

UNDOCUMENTED IMMIGRANT:  The term "undocumented immigrant" is an oxymoron (the parts conflict). An immigrant is synonymous with "permanent legal resident." The old term for the document authorizing a permanent legal resident is "green card." The term "undocumented" is derived from the accurate term "undocumented aliens" who are often called "border crossers."

Proper terms are "illegal alien" or "undocumented alien" but not "undocumented immigrant." Although not commonly used, the term "documented alien" accurately refers to foreign nationals who have an unexpired non-immigrant visa such as H-1B.

Most U.S. citizens do not use the term "undocumented immigrant" and prefer, instead, the more descriptive and accurate term "illegal alien".

The term "undocumented immigrant" is used by those who believe in "open borders", i.e., non-regulation of foreigners entering into and assuming residence in the U.S., including even those foreigners who owe allegiance to a foreign government and/or who may intend harm to the U.S.

DISCUSSION:

Commonly, in U.S. politics and U.S. news stories, the term "alien" is most often used with the modifier "illegal".

By contrast, the term "immigrant" is often deliberately used without a modifier, leaving the impression -- correct or not -- that the immigrant is legally or permissibly in the U.S. under our laws.  Of course, this is frequently not the case!

Liberal politicians and news organizations prefer to refer to illegal aliens as "undocumented immigrants" because this term deliberately deflects discussion away from the fact that such individuals are in our country illegally.  The term "undocumented immigrant" is designed to deliberately gloss over the fact that such individuals have broken our laws.

Conversely, conservative and libertarian politicians and news organizations tend to refer to illegal aliens as "illegal aliens" which properly keeps the focus of the discussion on the fact that such individuals have broken our laws and are therefore criminals to one degree or another, and that these individuals do not owe allegiance to our country.

In fact, folks who like to use the term undocumented immigrant also tend to believe we should be spending U.S. taxpayer funds to provide illegal aliens (criminals) with health care, social security and in some cases in state tuition at our colleges and universities.  They also tend to believe that illegal aliens should be able to obtain U.S. drivers' licenses, open U.S. bank accounts, and be free from arrest and deportation by our police officers.