Sanctuaries – setting the record straight

A m e r i c a n  P o s t – G a z e t t e
Distributed by C O M M O N S E N S E , in Arizona

Tuesday, July 07, 2009

Illegals – for and against

Senator Russell Pearce stops the spin

Some of you may have received a response putting a spin to defend a “no” vote on the elimination of sanctuary policies and the lack of support for HB2280: I must correct the spin and set the record straight:

The spin stops here!!!!  All I want is a firm understanding on where they stand and where will their vote be in the future.  They will get another chance to vote on this critical issue. The courts have ruled time and time again local law enforcement has inherent authority to enforce immigration law.  In fact 8 USC 1644 and 8 USC 1373 makes these sanctuary policies illegal under federal law.

Rep. Nancy Barto is a good woman; however she has been against local enforcement and we have had many discussions.  She has family involved in the Interfaith Movement, an open border group that protests on a regular basis against me, against Sheriff Joe and advocates for open borders, for Amnesty and they work with ACORN and other extreme left wing groups. I have a hard time to understand anyone not standing firmly for the Rule of Law and especially if one looks around at the Deaths, Maiming, and billions in cost to the taxpayer.  It is in complete violation of their Oath of Office in my opinion.

Rep. John McComish is also a good man, but we differ on this issue.

Last January I put forth a Resolution on the removal of Sanctuary Cities/policies in this state and it passed “unanimously” at the State Republican Party Meeting and Maricopa County Republican Party Meeting.  There were over 800 elected precinct committeemen and women at each of these meetings that represent the grassroots Republicans all across this state, these are our core Republicans and they made it loud and clear how they stand.

These folks are good Republicans,  but simply weak on the most critical issue facing our nation, that is the enforcement by local law enforcement of immigration laws, and employing the most effective tool we have to stop this invasion by illegal aliens.  What they are trying to say simply is not true.  My good friend Representative Boone’s bill was watered down at the request of the Police Chief’s Association, that have fought against me for years on the enforcement of our immigration laws.  It was watered down to include an “intent” clause that would allow them to put conditions on them on when and where they can ask, which is being done now and allow them to only check when illegal aliens are arrested for another crime, which in Maricopa County Sheriff Joe does on every single person arrested and booked into jail; (another crime and another victim before anything would be done). It was unenforceable.  All the Republicans mentioned as no votes or not voting at all have struggled with enforcement and have worked against it for years. Rep. Mason the exception perhaps.  She told me she would have been a yes vote on the bill.  I am not demeaning the character of these folks, but I must set the record straight.

HB2280 was well written and would have passed all court challenges as did my PROP. 200 (7 court challenges by the left and the Chamber of Commerce and I won 7 times), my Employer Sanctions (been to court 5 times and I won 5 times even in the 9th Circuit Court).  These same silly and untrue arguments were used to get folks to not support Protect Arizona NOW (known as Prop. 200) and the employer sanctions law (The Fair and Legal Employment Act).

I will not support legislation that sounds good but changes nothing; no more wink and nod. Our citizens deserve better and that is what the Boone bill did after the amendment was put on.

That is why my bill was endorsed by:

Maricopa County Sheriff Joe, Maricopa County Attorney Andrew Thomas, Pinal Co. Sheriff Babeu, Az FOP, Phoenix Law Enforcement Association, Maricopa County Deputies Association, Border Patrol Officers Association, Arizona State Republican Party, Maricopa County Republican Party, Arizona Highway Patrol Association, two large Hispanic groups, Arizona African American Republican Club, Arizona Republican Assembly, The Pachyderms, NumbersUSA, F.A.I.R., and many more.

“Local Law Enforcement’s Inherent Authority of Immigration Law:”

Congress has firmly established that there is a significant public interest in the effective enforcement of immigration law. Congress could have chosen to limit local enforcement pursuant to its plenary power over immigration, but it has not done so. In the absence of a limitation on local enforcement powers, the states are bound by the Supremacy Clause of the United ‘States Constitution to enforce violations of the federal immigration laws. “The statutory law of the United States is part of the law of each state just as if it were written into state statutory law.” States do not need a 287g, IGA, MOU or a permission slip to arrest illegal aliens.  The 287g goes beyond the arrest powers as states already have inherent authority to make arrests.

In Sections 1324 the language that referred to officers “of the United States” when talking about authority to arrest, was stricken from section 1324 by amendment. In People v. Baraja, a California court concluded, “that change can only mean that the scope of the arrest power under section 1324 was enlarged; in no way can it mean that the scope of arrest under the other two sections was restricted. Such an acute non sequitur would attribute to the Congress both serious inconsistency and profound lack of logic.”

The arrest, detention, or transportation of aliens by local police enforcing criminal provisions of the INA is not a regulatory “determination” of the conditions of alien entrance and residency, but merely enforcement of the previously determined conditions. States can prosecute illegal aliens under state laws without running afoul of the INA. State and local laws do not attempt to regulate who may come to and stay in the U.S. , and thus do not impinge upon the federal government’s exclusive power to regulate immigration, even if they affect immigrants.

In 1999 a decision in the Tenth Circuit Court of Appeals upheld the independent authority of local police departments to enforce federal immigration law, as long as state law prescribing police power of arrest authorized such an arrest. The U.S. Dept. of Justice endorsed this doctrine in April 2002. Under Attorney General Ashcroft, the U.S. Dept. of Justice took the position that state and local police have inherent authority to enforce civil immigration laws.

Assistant Attorney General Kobach explained that the inherent arrest authority of states arises from their pre-constitutional status as sovereign entities. The powers retained by the states at the time of ratification proceeded “not from the people of the United States, but from the people of the several states,” and remain unchanged, except as they have been “abridged” by the Constitution. The authority of a state to arrest for violations of federal law is thus not delegated; but “inheres in the ability of one sovereign to accommodate the interests of another sovereign.” This federalism-based analysis has a strong judicial pedigree.

The courts also ruled (Miller v. U.S., 357 U.S. 301, 305(1958) that a warrant less arrest “of an arrest for violation of federal law by state peace officers, …the lawfulness of the arrest without warrant is to be determined by reference to state law.”

Sanctuary policies are illegal. Local, state, or federal government agencies that sanction or retaliate against employees or officials who report immigration law violations to ICE or the Border Patrol can be sued by the whistleblower under 8 U.S.C. 1373 or 8 U.S.C. 1644 for damages and costs.

Citizens have a constitutional right to expect the protection of federal laws which prohibit unauthorized activities by non-citizens are denied equal protection when a police department or magistrate acts in a manner that encourages or assists persons selected on the basis of nationality or alienage to engage in such unlawful activities.

No policy or humanitarian argument has been identified by the courts that would negate the criminal mens rea (guilty mind) of reckless disregard for the fact that aliens are present in the United States in violation of law. Neither sanctuary nor humanitarian concern is a valid defense to either civil or criminal violations of the Immigration and Nationality Act. It is illegal for non-profit, religious, or civic organizations to knowingly assist in the commission of an alien smuggling felony, regardless of claims that their member’ convictions may require them to assist aliens. The First Amendment does not protect actions that aid illegal aliens to remain in the United States.

Illegal aliens are not a suspect class entitled to Fourteenth Amendment based strict scrutiny of any discriminatory classification based on that status, nor are they defined by an immutable characteristic, since their status is the product of conscious unlawful action.

A law enforcement officer has probable cause to detain an individual who admits he or she is an alien (legal or illegal) but is not in possession of registration documents. This is a crime that a warrant less arrest can be made in most jurisdictions.

The authority to make arrest for federal offenses under 18 U.S.C. 3041 extends to state and local law enforcement officers. (U.S. v Bowdach, 561 F.2d 1160, 1168 (5th Cir. 1977) An illegal alien is an inherent flight risk.

Supreme Court Ruling Razes Artificial Fire Wall Between Local Law Enforcement and Immigration Enforcement (Muehler v. Mena) 9-0 Landmark Decision (Washington D.C.—April 1, 2005) In its March 22 ruling in the case of Muehler v. Mena, the Supreme Court removed barriers that prevent local law enforcement officers from questioning the immigration status of individuals they suspect to be in the United States illegally. In this groundbreaking decision, the high Court rejected the claim of Ira Mena, a permanent resident of the U.S., that police had violated the Fourth Amendment while conducting a lawful search of her home.

The Fourth Amendment provides protection by establishing that persons be shielded against unreasonable search and seizure. Mena argued that by questioning her, and the illegal alien detainees about their immigration status during a lawful search, officers violated her Fourth Amendment rights. Mena further claimed that questions asked about her citizenship required officers to have had independent reasonable suspicion regarding the unlawfulness of her immigration status.

Calling a decision by the 9th Circuit Court of Appeals “faulty,” the Supreme Court held that “mere police questioning [regarding one’s immigration status] does not constitute a seizure.” The Court continued its landmark ruling on this issue by stating that “the officers did not need reasonable suspicion to ask Mena for her name, date of birth, or immigration status.”

“If local police are barred from cooperating with federal authorities in the enforcement of U.S. immigration laws it is purely a political decision on the part of local politicians and police chiefs. There is no legal barrier to local police inquiring about a person’s immigration status and then acting upon the information they gather.”

Any decision by law enforcement not to enforce immigration laws is a political decision by politicians and local police chiefs, not a lack of authority.

U.S. Justice Dept. makes it clear local law enforcement can enforce immigration laws

Senator Russell Pearce


  1. So Pearce drags in what unidentified “family members” of Rep Barto supposed believe to tie her to ACORN. Real classy.

  2. Brittancus says

    In the Senate–NOW–the legislators are voting on E-Verify? Call your Senator and–DEMAND–E-Verify NOW–as a permanent tool! 202-224-3121

    This is the right time to release a bombardment of general public voices on any Senator or Congressman around the country. Do not relieve the harsh pressure on either party to–MANDATE PERMANENTLY E-VERIFY? Our voices, faxes, emails and phone calls are burning up the wavelengths, demanding E-Verify? Not on a voluntary basis–BUT FOREVER. Not just for new employees, but for everyone who gets a paycheck, old and new? This symbolizes to me that the–AMERICAN WORKER–is being recognized? That our public servants in Washington have been hesitant to cut funding, or even reduce the power of E-Verification system that identifies and removes illegal labor from the workplace. This law must be enforced with heavy handed sentences of all employers who ignore the easy computer check?
    All inconsistencies can be rectified at the Social Security office, not a place were illegal immigrant labor will dare to venture?

    Removing illegal aliens from the country by orderly ATTRITION-would save our nation plenty–plus give jobs back–rid us of more criminals–stop chain migration and the immediate beginning of OVERPOPULATION.

    Perhaps after all the ACLU, US Chamber of Commerce, special interest lobby are not going to win this time? Thank heavens we have a few relentless patriotic AMERICANS, such Senator Sessions who have been determined to undermine the open border, free trader zealots, who want uncompromising illegal cheap labor? In the incumbent elections we should make an example of all politicians, who defy the publics demands. Letting up now will just give them enough leeway, to use E-Verify in the future as bargain chip, in the ongoing discussion for AMNESTY. We have the immense power and we must use it? For more details go to NUMBERSUSA, CAPSWEB & AMERICAN PATROL. Not liberal newspaper lies, but facts. YOU DECIDE IF YOU WANT AN OVERPOPULATED FUTURE?

  3. It is a common attack method, when you can’t substantiate your position on merit, go personal.

    Throw something out there that moves the debate from the issue to a highly inflammatory subject that either forces the accused to defend it and, in so doing, moves the debate from the topic OR ignore it. Which can then be used to say, “they didn’t deny it” until it becomes accepted fact.

    Pearce is PO’d that Nancy dared stand up and speak out. He also knows Nancy is too classy to roll in the mud.

  4. kralmajales says

    I love to watch you all attack business…it makes me gleeful. Now the Chamber of Commerce is the enemy too…because they don’t like draconian policies on immigration. Hmmm who all is going to be left in your party?

  5. Kenny Jacobs says

    Reading Sen. Pearce’s grammar is a real insight into his psyche. Obviously this man should be the face of the Republican Party state-wide. Please?

  6. Cheap shot Senator Pearce. Are we now going to check the political affiliations of all family members in the legislature? I mean come on, if Senator Gould has a Democrat in his family will that make him suspect? Or maybe Representative Sinema has a Republican brother? She’s probably a closet conservative.

    I, for one, even though I am a conservative Republican, ate recently at Cheuvronts – very good btw. Does this make me suspect ideologically?

  7. Pearce is a hypocrite. What he’ll never fess up to or buries deep in the bill with a one sentence explanation is that this was an unfunded mandate, something Mr. Hypocritical is just fine to ignore since it fits in perfectly with his agenda. It’s funny how he rails against the Feds for their mandates yet is perfectly fine with his own.

    If you were to propose a tax increase with all funds going to the enforcement of illegal immigration, Pearce would not only be the first to vote yes, he’d sponsor and bully the bill through the chambers.
    He’s a hypocrite who struggles to hide his true colors.

  8. Ricky Maldanado says

    Republican Platform:
    “Require cooperation among federal, state and local law enforcement and enforce real consequences, including the denial of federal funds, for self-described sanctuary cities, which stand in open defiance of the federal and state statutes that expressly prohibit such sanctuary policies, and which endanger the lives of U.S. citizens.” Illegal Immigration Section. Read the Platform at You certainly won’t find the Republican Platform at Shadegg, McCain, Flake, Kyl .com

    I am a Republican because of our written, agreed to, unanimously passed Platform. Not because of open borders legislators like Barto, Quelland, McComish, Flake, McCain, Shadegg and Kyl.

    Thank you Chairman Haney and Sen. Pearce for standing tall for our shared and unanimously passed Republican principles once again.

    If you don’t buy our platform principles then go find a party that suits you.

  9. Alicia Gegner says

    The Pearce detractors do not address the issues. Why is that? Is it because creating smoke screens hides the 800 pound gorilla in the room?

    The facts are so simple. We currently do not effectively enforce our immigration laws. Those laws are there for good reasons, and Pearce is very aware of what they are. We American citizens are getting murdered by illegals way out of proportion to their numbers; they steal from us, commit rape, pillage the medical system, and in general, cause an enormous and disproportionate amount of damage. Among the illegals are people from the Middle East who have a terrible agenda. They want to totally dominate us, and they are very serious about it.

    All of you who complain about Senator Pearce, why don’t you just be truthful and say that you favor no borders, that you want our medical systems to be destroyed, that you don’t care how many of us are robbed, raped or killed, that it is fine with you if our jails go to bursting from housing people who should not be here in the first place, terrorists are welcome neighbors, and madness and mayhem are jolly good fun?

    Can’t you bring yourself to criticize Senator Pearce on substance, or is that beyond your abilities? I think you know what my suspicions are. Those who have run out of ideas are the first to hit or be abusive.

  10. Alicia,
    Since the subject of Pearce’s email was to malign people who voted against or did not vote for his bill, talking about his efforts to do so is hardly a smokescreen.

    If anything, your comment could be described as an attempt to shift the issue from Pearce’s behavior. Either that or you just have the particular form of obsession that reads every possible issue through the lens of illegal immigration.

    Claiming people who oppose Pearce’s proposal don’t care whether people are raped or murdered is simply ridiculous. In fact, many people are so concerned with others getting raped and murdered that they have very real concerns about how “Sheriff Joe” has spent so much wasted effort on enforcing immigration laws instead of investigating and responding to violent crimes. As a model this does not bode well for other local law enforcement agencies.

    I am unclear about your last paragraph. Are you claiming that people who don’t agree with Pearce are spousal abusers? That’s rich.

  11. Todd, Ann & Company:

    Let’s return to the bill itself!

    Why should’nt the rule of law be applied to immigration?

    And more to the point, given the deluge of illegal aliens over the past 20 years throughout the state, how is Sen.Pearce’s desire to do away with the sanctuary city concept in Arizona unsubstantiated?

    I await your answers!

  12. Iris Lynch says

    Yes, the hell with accusations. Lord, it is SO easy to get some of you people off course. ONE of the biggest issues we have in this country today is the inability or the desire to NOT enforce existing laws. There is a list of such laws. We see it everywhere and we see it in the highest office and the lowliest bum on the street. We see it in the middle class and we see it in the state houses and the Chamber of Commerce. We glory in ‘getting away’ with…you name it. Can we get our morality back? Anything is possible, but I am afraid it will take a total breakdown of the society along with the financial meltdown. Is anyone ready??? Who will you turn to then?

  13. Where did Nancy Barto stray from the very things you all espouse? Tom Boone had a bill, John Nelson had a bill, those were not bad bills. Pearce thinks he owns immigration and will do anything to derail other efforts so he can pick and choose what laws are passed.

    Problem is, others have a mind of their own and voted against this thing or didn’t show up at all in protest.

    Talk about the bill, Nancy Barto has explained clearly her opposition. So what does Pearce do? He makes all sorts of wild-eyed allegations about her family, ACORN and the like so as to make her out to be some sort of liberal in disguise.

  14. Steve W. says

    Sen. Pearce’ bill actually closed loopholes. It would have meant immigration law would be enforced. There is no surprise that these historically (except for Quelland) open borders legislators took a hike.

    There is no surprise in this story at all. Sen. Pearce writes legislation to enforce immigration law. The Lisa James camp tries to legislate open borders. Business as usual. Good riddance to Quelland and the rest of these open borders politicians. Anybody look up RECALL requirements yet?

  15. sundevil10 says

    How is it that police associations are stupid enough to throw their own members under the bus and support a guy who wants an increase the number of cops losing their livelihood because they are not trained on 287(g)? There is a cop in Gilbert that is being prosecuted because he thought he was doing the right thing about asking someone what their immigration status was…and now probably will lose his livelihood because he’s being sued civilly. It is not Pearce and his incorrect rhetoric defending him in courts.

    Immigration is a FEDERAL issue, what Pearce is selling with his immigration stampede are all unfunded mandates. Taking on the fight here in AZ is crazy.

    The problem I had with HB2280 is that it did not take into consideration victims. “Sorry ma’m, you just got raped, and now I am going to deport you.” Does the rapist automatically become illegal as well? Plus if local law enforcement is deporting more illegal aliens than MCSO…why try to mess up what is already working?

    He is a prime example of the downward he is taking my party.

  16. Flaccid and Furious says

    And all the while the Democrats advance their destructive socialist agenda in Washington… Yes, certainly, let’s recall these RINOs! Are Arizona Republicans really this dimwitted and suicidal?

  17. I think you are forgetting something.

    The rights not given to the federal government are left to the states.

    Where does the constitution talk about enforcing immigration law.

    The last time I read it didn’t.

  18. Iris Lynch says

    All federal laws are enforceable by LOCAL law enforcement personnel..otherwise bank robbers would have a field day. Choosing to NOT enforce federal laws is probably against some law or other..but, hey.

  19. To the “Banana Republicans” and the “Fast Food Gang”

    I’d like to point out that courts have already authorized local law enforcement agencies to enforce Federal Laws on innumerable occasions,including immigration law.

    As a matter of fact, M.C.S.O.’s immigration enforcement personnel received Federal training.

    So quit your whining and start hiring citizens!

  20. Carlist your ignorance is bliss. The Feds have not funded continuing training of 287g. Mesa applied over a year ago and have not moved from 70th+ in line.

  21. Sun Devil

    Robbing a bank that is insured by the FDIC is a federal crime, should local law enforcement be prevented by the Chamber of Commerce crowd?

    Grab hold of the fact that local law enforcement officers are sworn to uphold federal, state and local laws.

    Police should not be prevented from doing their job because the Wake Up Arizona crowd is profiting from the influx of illegals at the expense of our safety and security.

  22. AzNooz, that’s a losing argument since you don’t get deported for robbing a bank. Most immigration laws are civil infractions which clouds it even more. There is an entire procedure because of the deportation factor.

    This did nothing but throw a wrench in law enforcement and it’s a good thing it was an epic fail.

Leave a Reply