Victory: Court Decision on Arizona’s Controversial Immigration Law SB 1070

By Former State Senator Karen Johnson

Many people are unhappy about the June 25th Court decision on Arizona’s controversial immigration law (SB1070) and the fact that the Court struck down three out of the four provisions of the bill that had been challenged. Now, if this were a game of tennis or baseball, losing three out of four would be a near defeat. But the ruling on SB1070 is not about sports, and a mere count of the provisions the court affirmed or struck down is not a measure of the success or failure of SB1070. The court’s ruling was, in fact, a great victory. There is no cause for mourning over SB1070.

First, it must be understood that SB1070 was a long, complex piece of legislation that ran for 19 pages and involved 10 sections of statute, some of which had multiple provisions in subsections. Some very important sections of SB1070 were never challenged, such as the sections on human smuggling and employee sanctions. Attempts were made early on to challenge Section 2 (a prohibition against “sanctuary cities”) and Section 5(a) (streetside solicitation by day workers). But these attempts to thwart SB1070 were fended off in early court proceedings before the suit arrived at the Supreme Court. So, of the 10 sections to the bill, a full six of them, many with multiple provisions, were either in effect from the start or had been exonerated by the time the challenge arrived at the doorsteps of the Supreme Court. That means that 60 percent of SB1070 had already been cleared before June 25. What remained for review by the Supreme Court were all of Sections 3 and 6, and a single piece each of Sections 2 and 5. Section 2(b) was upheld in the June 25th ruling, so comes off the table (70 percent of SB1070’s 10 sections now prevailing.). That leaves three items.

Sections 3 and 6 each address a single provision of law, and each were struck down by the Court. But Section 3 isn’t absolutely required in order for the states to arrest and detain illegal immigrants; it was just an additional tool. Nice to have, but not a key provision of SB1070. Section 6 was somewhat redundant because states already have authority for that provision and can work around the court’s decision. So, losing Sections 3 and 6 is not a fatal blow to SB1070.

Lastly, Section 5 had seven different provisions in it, but only one was challenged. The Court struck it down, so a mere one-seventh of Section 5 was invalidated by the June 25th ruling, while the remaining six-sevenths stood. So, in the end, three small provisions that were not terribly crucial were struck down by the court. In contrast, the most significant provision of SB1070, the one which allows police officers making traffic stops to check for residency status, was upheld. This provision was the heart of SB1070. It was by far the most important part of the bill, the most important item under judicial review, and the one to which the Justices gave the most attention during oral arguments. And that section was upheld unanimously by all eight Justices.

Despite SB1070’s near perfect score after two years of attacks by the Left, and despite the puny success of the opponents who were so enraged about the passage of the bill, the media blathered incoherently the day of the decision about how the court “gutted” the bill and overturned nearly all of it. It’s hard to know whether such trash reporting merely reflects the usual incompetence of the mainstream media or is an overt attempt to spin the story to cover up a very public defeat of the radical Left. The anti-American Hispanic groups, the Chamber of Commerce, and various other open borders advocates spent two years and a lot of ink trying to kill SB1070 without success. Considering that the lawsuit against SB1070 was brought by the current administration in Washington, then the administration shares with its Leftist friends the sting of defeat in the face of the court’s ruling. Our current leaders forsook the Constitution long ago. The court ruling on SB1070 is a stern reminder to them that even kings (and presidents) are not above the rule of law.

Among the most satisfying aspects of the June 25th ruling are the comments and support offered in the dissenting opinion of Justice Scalia. Scalia voted to uphold all four provisions of SB1070 that were under review, and he expresses an articulate defense of the law in his dissent. “Scalia eviscerates Kennedy’s explanation” for the majority, said Arizona Senate Majority Leader Andy Biggs, an attorney who helped to pass SB1070 in 2010 and reviewed the opinion as soon as it appeared on the Court’s website. Basically, reports Biggs, Scalia says that Kennedy’s legal logic was faulty, and that Justice Kennedy misunderstood aspects ofArizona law, a failure which colored his opinion.

While Scalia’s dissent is a minority opinion, it will likely be embraced by patriots because it gives hope to those who love our country and want to protect it from the malicious efforts of those who consistently tear away at the Constitution. Here are a few of Scalia’s comments in his dissent:

“There is no federal law prohibiting the States’ sovereign power to exclude [illegal aliens].”[1]

“… the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers.”[2]

“… the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder.”[3]

“Arizona is entitled to have ‘its own immigration policy’ ­ including a more rigorous enforcement policy ­ so so long as that does not conflict with federal law.”[4]

“… there is no reason Arizona cannot make it a state crime for … any illegal alien … to remain in Arizona.”[5]

“In my view, the State can go further … and punish them for their unlawful entry and presence in Arizona.”[6]

“The Government complains that state officials might not heed ‘federal priorities’. Indeed they might not, particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona.”[7]

“The State has the sovereign power to protect its borders more rigorously if it wishes ….”[8]

“It is beyond question that a State may make a violation of federal law a violation of state law as well.”[9]

Scalia is scathing in his denunciation of the majority opinion:

“But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of [federal law] that the President declines to enforce boggles the mind.”[10]

“What I do fear ­ and what Arizona and the States that suppport it fear ­ is that ‘federal policies’ of non-enfforcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue but leaves unremedied in its disposition.”[11]

Scalia’s scorn for the majority ruling condenses itself into a question about the Constitutional Convention in 1787: “Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?”[12]

His answer: “The delegates to the Grand Convention would have rushed to the exits.”[13]

Scalia exposes the main obstacle the states face in their struggle to contain illegal immigration: “A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.”[14]

And he raises the question that needs to be faced by everyone who cares about our freedom:. “Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?”[15]

The answer to that question, of course, is no. Our nation was built on the concept of “popular sovereignty,” meaning that power rests in individuals, not government. We confer certain limited powers on government for the purpose of maintaining an orderly society, not for the purpose of stealing our freedom. The Founders recognized the dangers of an all-powerful, overbearing federal government. They did not leave the states or individual citizens at the mercy of the Executive Branch.

But what is the remedy, then, for a government that refuses to obey the laws and the Constitution and does everything it can to thwart state efforts to do so? Senator Biggs calls the current leaders in Washington “a rogue administration. They are acting outside the scope of their Constitutional authority.”

In times past, the remedy for rogue government was almost always, of necessity, an overthrow. But in a country like ours, that honors the rule of law, revolution isn’t the first option. The answer is (what else?): the rule of law! Even the most clever despot cannot outwit the rule of law. It is probably not possible to overstress the importance of this principle. Dallin H. Oaks, former Justice of the Utah Supreme Court, has said that, “All the blessings enjoyed under the United States Constitution are dependent upon the rule of law …. The rule of law is the basis of liberty.”[16] If that is the case, and I believe it is, then the remedy for a lawless government is to pursue the rule of law vigorously. The answer lies in the state legislatures, which are, after all, supposed to be stronger than the federal government anyway. SB1070 is a state assertion of the rule of law. Many other options exist, such as nullification and rejection of the federal money that makes the states slaves to federal mandates. Are we at the mercy of the Federal Government? Not on your life. Not unless the state legislatures choose to make us so.

The Supreme Court ruling on SB1070 was a step toward reestablishing respect for the rule of law. Our current Chief Executive (who has no respect whatsoever for the rule of law) has already announced that he will oppose efforts by Arizona to implement the provisions of SB1070 and will instruct ICE officials to refuse to cooperate with local law enforcement officers who apprehend illegal aliens. Arizona will need to stand up to such outrageous lawlessness on the part of the federal government.

The commander in chief is setting up a power struggle between the states and Washington, a national staring contest, so to speak, a giant game of Chicken. Whoever blinks first loses. But liberty never backs down. Freedom never loses in the long run. The pages of history are filled with tales of tyrants who went too far.[17] Tyrants always lose. Scalia closes his dissent with a blunt stand on behalf of state sovereignty that should give all states the courage to assert themselves and not back down to the federal government:

“Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30 ”are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment. Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in completee compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.”[18]

Hurray for Justice Scalia! Hurray for the Constitution! Hurray for SB1070!

(c) 2012 Karen Johnson – All Rights Reserved

Footnotes:

1. Supreme Court decision on SB1070. Arizona et al v. United States, No. 11-182., Scalia Dissent, p. 7. [Link]
2. Ibid., p. 8. [Link]
3. Ibid., p. 8. [Link]
4. Ibid., p. 12. [Link]
5. Ibid., p. 12. [Link]
6. Ibid., p. 13. [Link]
7. Ibid., p. 13. [Link]
8. Ibid., p. 13. [Link]
9. Ibid., p. 14. [Link]
10. Ibid., p. 21. [Link]
11. Ibid., p. 16. [Link]
12. Ibid., p. 21. [Link]
13. Ibid., p. 22. [Link]
14. Ibid., p. 21 [Link]
15. Ibid., p. 21. [Link]
16. Dallin H. Oaks, former Justice of the Utah Supreme Court, “The Divinely Inspired Constitution,” Ensign, February, 1992.
17. See “The Utah Compact and the Rule of Law,” by Karen Johnson, Sept. 14, 2011.
18. Supreme Court decision on SB1070. Arizona et al v. United States, No. 11-182., Scalia Dissent, p. 22.

Will the Utah Compact Derail Mitt Romney’s Campaign?

By Former Arizona State Senator Karen Johnson

One of the biggest obstacles Mitt Romney faced when he ran for President in 2008 was the fear that, if elected, he would take orders from the President of his Church. Like the Catholic Jack Kennedy in his 1960 race for the presidency, Romney, a member of the Church of Jesus Christ of Latter-day Saints (LDS), had to overcome the uneasy suspicion that the head of his church would dictate public policy. To dispel such fears, Romney gave his memorable “Faith in America” speech in which he stated:

“Let me assure you that no authorities of my church, or of any other church for that matter, will ever exert influence on presidential decisions. Their authority is theirs, within the province of church affairs, and it ends where the affairs of the nation begin.

“As governor, I tried to do the right as best I knew it, serving the law and answering to the Constitution. I did not confuse the particular teachings of my church with the obligations of the office and of the Constitution – and of course, I would not do so as president. I will put no doctrine of any church above the plain duties of the office and the sovereign authority of the law.

“As a young man, Lincoln described what he called America’s ‘political religion’ – the commitment to defend the rule of law and the Constitution. When I place my hand on the Bible and take the oath of office, that oath becomes my highest promise to God. If I am fortunate to become your president, I will serve no one religion, no one group, no one cause, and no one interest. A president must serve only the common cause of the people of the United States….We separate church and state affairs in this country, and for good reason. No religion should dictate to the state nor should the state interfere with the free practice of religion.”

Romney’s speech was generally well received, and it appeared that he had put the matter to rest. Unfortunately, the question of LDS Church influence has roared to life again in 2011, with indications that it could affect the 2012 elections.

It began in November, 2010, when a group of Utah businessmen, politicians, newspaper publishers, and various church denominations launched a list of principles they felt should guide immigration policy. They called it the Utah Compact. Although the LDS Church likely received considerable pressure to sign on to the Compact, they declined to do so. However, they DID issue a news release stating that they endorsed the principles of the Compact. In addition, a few prominent church employees signed the Compact, which added to the perception that the Church endorsed it.

The Compact was filled with vague, benevolent statements that implied that amnesty is the solution to our immigration ills. Many members of the LDS Church then embraced amnesty because they thought their church did.

The first test of the Compact came in the 2011 legislative session in Utah. Roughly 80 percent of the members of the Utah legislature are also members of the LDS Church. Church employees roamed the halls of the Utah capitol lobbying Representatives and Senators for their vote in favor of immigration bills pushed by the supporters of the Utah Compact. Refusal to support those bills was viewed as rejection of the Compact and, by extension, disobedience to the President of the LDS Church. The vote on these immigration bills became a test of the LDS legislators’ allegiance to their Church. LDS Church President Thomas S. Monson never personally lobbied for the bills, but the Church-owned newspaper, the Deseret News, blared its support for both the Compact and the immigration bills, and employees from the Church Public Communications office continued to lobby every day. The message heard by Utah’s LDS legislators was: “If you don’t vote for these bills, you will be disobeying the President of the Church.”

In addition to being a test of one’s allegiance to the LDS Church, the Utah votes were also a test of the LDS legislators’ fidelity to their oath of office. Many of the legislators did not support the proposed immigration bills, but they felt pressured to comply with what they perceived to be the wishes of their church. The choice was between making a correct policy decision or obeying the LDS Church. In the end, many of the Utah legislators caved in. When faced with a clear choice between performing their duties as elected officials or obeying the perceived dictates of the LDS Church, they threw their oath of office out the window and voted the way they thought their Church leaders expected. It wasn’t the first time that Utah legislators changed their votes to conform to the wishes of the LDS Church contrary to their own best instincts. So much for Mitt Romney’s insistence that an elected official would never be influenced by the leaders of the LDS Church. The Left has correctly perceived that obedience to Church leaders is an important value among members of the LDS Church, and they have figured out how to use that to manipulate LDS elected officials.

The image of [some] Utah legislators scurrying about, wringing their hands, and holding their breath as they watched for a sign from church leaders on how to vote is even more sickening when one realizes that it was left-wing, radical, Marxist groups that were pushing the immigration bills (and the Utah Compact) behind the scenes. But things got infinitely worse when the Compact promoters went national.

In early 2011, community organizers fanned across the country laying the groundwork for Compacts in other states. In Arizona, advocates of the Utah Compact launched a recall campaign against the LDS State Senate President, Russell Pearce, the hero of the nation on immigration reform and border security. A 2010 Pearce bill (SB1070) had created hysteria on the Left when it triggered a nationwide rush for similar enforcement bills in other state legislatures. As the author of SB1070 and a prominent national leader on immigration enforcement, Pearce became the bull’s-eye in the target of Leftist radicals who organized to take him out. Pearce’s opponents ran a nasty but effective campaign based on character assassination, voter recruitment, and alienation of the many LDS voters in Pearce’s Mesa, Arizona, legislative district.

The opponents announced their strategy early in the recall campaign. DeeDee Blase, head of Arizona’s Somos Republicans, an open borders advocacy group, said: “The biggest win with regard to our efforts is getting a special supporter who is a devout member and a member of the high council of the Mormon Church. We have scheduled lectures that will be specifically aimed to members of the LDS community as well as the business community. We know that Mesa has a Mormon stronghold, and in order for us to have an overall effective campaign, we must win over the Mormon community. It is imperative for them to know that Russell Pearce (a member of the LDS community) refuses to listen to the Mormon Prophet, and he refused to uphold the Constitution of the United States.”

The accusation was a lie. Pearce is a strong constitutionalist and a devout and active member of the LDS Church. Most important, suggesting that he “refused to listen to the Mormon Prophet” was a trap. If he protested that he was obedient to the prophet and supported the Utah Compact (which was a call for amnesty), he was dishonoring his oath of office and violating the wishes of many of his constituents, not to mention his own knowledge of the crisis on our borders. If he proclaimed that he was NOT dictated to by the leaders of his Church, he appeared to be disobedient to his church leaders, which would sully him in the eyes of many of the LDS voters in his district, who view obedience to church leaders as a standard of honor. There is no way for an LDS candidate for office to defend himself against such an accusation.

Blase’s accusation revealed that the recall campaign would promote a religious test for holding office. “Obey the Mormon Church or you’re not qualified for election.” Pearce was repeatedly accused of being disobedient to his Church leaders because of his strong views on immigration. His opponent was portrayed as a choir boy who obeyed the prophet. It cost Pearce votes among LDS voters.

Blame for this dilemma goes not to the Marxist radicals who ran the campaign against Pearce or even to the LDS Church hierarchy, which had lobbied hard for the Utah immigration bills and seemed to support the Utah Compact. The blame goes entirely to the members of the LDS Church in Pearce’s legislative district who swallowed the false argument that Pearce’s highest duty as an elected official was to satisfy the wishes of the LDS Church.

Some Mesa LDS businessmen who support amnesty joined forces with the radical Left to take Senator Pearce down. One of these men, Daryl Williams, an LDS attorney who did not live in Pearce’s district but actively campaigned against him, gave firesides (an LDS cottage meeting) and seminars on the Utah Compact, never missing a chance to say that Senator Pearce was violating church doctrine. In a promo for one of his firesides, Williams proclaimed:

“Russell Pearce, the chief proponent of Arizona’s immigration laws is, like me, a Mormon. His views, however, do not reflect the official position of The Church of Jesus Christ of Latter-day Saints, the official name of the Mormon church. Indeed, Mr. Pearce’s views are inconsistent with the official position of his church.” (See here.)

Williams’ message was that Senator Pearce should shut up and do what the President of the LDS Church wanted, regardless of his oath of office or his duty to his constituents.

In one interview, Williams stated, “I believe that Mr. Pearce’s position [to enforce the law against illegal immigrants] is inconsistent with policy statements that have been promulgated by the church.” He added, “I personally do not think that you could be a faithful Christian or faithful Mormon and take such … positions ….”[1]

Williams promoted the religious test throughout the campaign. In an Op Ed in one of Arizona’s major papers, Williams declared, “Mormons and other Christians who advocate sealing the borders and the mass deportation of immigrants are out of sync with the official position of the Mormon Church.”[2] According to Williams, a candidate does not deserve to hold public office unless he stays “in sync” with the “official position of the Mormon Church.”

Williams, an attorney who should know better, has created a new standard for members of the LDS Church who want to run for office. The standard is that they must meet a religious test in order to run. The test is obedience to the leaders of the LDS Church. Such a standard is unconstitutional, of course. It is also the death knell for LDS candidates for office. Outside of Utah, Mormons are a distinct minority group. They cannot get elected with the votes of only LDS Church members. They must appeal to a broad base of voters of all faiths, and they must be able to honestly assure the public that their allegiance is to the Constitution, not to the policies of their Church.

Almost singlehandedly, Daryl Williams created an image of LDS elected officials bowing to the wishes of the LDS Church. That perception, of course, is odious to those who belong to other churches. The general public will reject an LDS candidate for office whom they perceive will be a puppet for the LDS Church.

Some LDS Church members in Mesa, Arizona, bought the religious test and voted accordingly. Losing the vote of LDS constituents who mistakenly perceived that he had disobeyed their Church leaders contributed to Pearce’s defeat. This message wasn’t lost on the national media. The Washington Post stated in an editorial recap of the election that “Immigration was a factor in his defeat ­ in large part because the Mormon Church decided that it should be.”[3]

You can be sure that others have gotten the message loud and clear. Mitt Romney’s 2007 “Faith in America” speech aside, many people are wondering once again what a Mormon candidate for political office will do when faced with a decision that appears contrary to the position of the LDS church leadership. Can Romney be trusted to secure the borders, since it appears that the leaders of the Mormon Church want amnesty? Regardless of any tough statements on border security that he might make during the campaign, will he ultimately betray the public on immigration if the LDS Church sends him a cue? What role does the LDS Church really play in politics?

The LDS Church has on occasion taken strong positions on moral issues such as abortion, homosexual marriage, and the Equal Rights Amendment. Churches have every right to take a position on moral issues, of course. They also have a right to take positions on policy issues, such as immigration. Church voices are important in public debate. However, elected officials must always remember that when they vote on a particular bill, they are acting as elected officials, not representatives of their Church.

They wear a different hat when they vote on legislation. At those moments, they are duty-bound to exercise their best judgment on an issue, based on months of study, committee hearings, discussions with experts and constituents, and in line with the state and U.S. Constitutions. At that brief moment in time when they cast their vote, they must honor their oath to the Constitution. They must not put the wishes of the Church ahead of their duties as elected officials.

The Arizona recall campaign spells trouble for Mitt Romney’s presidential campaign. I am not a Romney supporter but, if the public perception grows that LDS officeholders are expected to take orders from their Church leaders, then it will be goodbye to the possibility of an LDS candidate becoming President. Furthermore, qualified, talented LDS Church members will find it increasingly difficult to get elected to public office. That is a shame, because LDS Church members are patriotic and are strong supporters of the Constitution. I am LDS myself, and I know many good LDS elected officials. But LDS candidates will be rejected if the public believes they will put orders from their church leaders ahead of their legislative duties and their oath of office. If that happens, members of the LDS Church will have only themselves to blame for swallowing the idea that LDS candidates must pass a religious test to get elected. There is no religious test for office in this country.

Footnotes:

  1. “Stormin Mormons,” AZ Capitol Times, Aug. 8, 2011.
  2. “Williams: A Mormon’s View on Immigration,” Op Ed, Arizona Republic, Oct. 22, 2011.
  3. “Arizona Recall: Why Russell Pearce Lost,” Washington Post, November 9, 2011.

© 2011 Karen Johnson – All Rights Reserved