Posted tagged ‘Joe Arpaio’

Justice Scalia on “The Very Human Realities” in Arpaio’s Arizona

September 1, 2017

Justice Scalia on “The Very Human Realities” in Arpaio’s Arizona, Power Line,  Paul Mirengoff, September 1, 2017

(As I recall, Obama abrogated by executive order many of the immigration laws passed by Congress. — DM)

Scalia concluded with a question:

Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?

 For me, the story here is less about hypocrisy than about realizing what can easily happen when the federal government abrogates its duty to enforce laws that are vital to the safety and well-being of certain communities.

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Whichever way one comes down regarding President Trump’s pardon of Sheriff Joe Arpaio, I think it’s important to recognize the context in which Arpaio took the over-zealous law enforcement actions that led to his conviction. That context was described by Justice Scalia in his opinion (concurring in part and dissenting in part) in Arizona v. U.S., a decision that struck down in large measure an Arizona immigration enforcement law called S.B. 1070.

Justice Scalia wrote:

Today’s opinion, ap­proving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. . . .

Scalia added:

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. 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 complete 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.

(Emphasis added)

Scalia concluded with a question:

Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?

Of course not.

Daniel Horowitz, whose recent article invokes these words by Scalia, writes:

There is something fundamentally wrong when people delegitimize the pardon of one sheriff — whether you agree or disagree with Trump’s decision — but unquestionably support the de facto judicial pardons of millions of illegal aliens, including some of the most violent ones, even though courts manifestly lack such power.

Moreover, Obama illegally “pardoned” (plus gave affirmative benefits to) 900,000 illegal aliens, including the likes of Salvador Diaz-Garcia, who allegedly raped a 19-year old American and broke almost every bone in her face.

Of course, some strong critics of the Arpaio pardon did not support the de facto pardons Horowitz describes. For me, the story here is less about hypocrisy than about realizing what can easily happen when the federal government abrogates its duty to enforce laws that are vital to the safety and well-being of certain communities.

Trump Pardons Joe Arpaio

August 26, 2017

Trump Pardons Joe Arpaio, Power Line,  Paul Mirengoff, August 26, 2017

Arpaio was accused by the Obama Justice Department and other left-wingers of targeting Hispanics. Indeed, the legal case that led to his conviction arose from claims of racial profiling. But in Maricopa County, the illegal immigrant population is overwhelmingly Hispanic. Had the County been plagued by mass illegal immigration by Koreans, chances are Sheriff Joe would have targeted Asians. And he would have been right to do so. Sheriffs shouldn’t be expected to check their common sense at the door.

Some may defend the pardon by comparing it to egregious pardons of the past, like President Clinton’s pardon of wealthy fugitive Marc Rich and President Obama’s pardon of a Puerto Rican terrorist. Arguing from these outliers strikes me as misguided. Their pardons were so flagrantly unjust that the same argument could be used to defend a great many indefensible pardons.

No such argument is required to defend Trump’s pardon of Arpaio. It was a reasonable exercise of the pardon power.

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President Trump today issued a pardon to the man he calls “Sheriff Joe” — Joe Arpaio, the former sheriff of Maricopa County, Arizona. Arpaio was convicted of failing to follow a court order to end the practice of detaining people based on the suspicion that they lack legal status and turning them over to the border patrol.

The White House provided this explanation of the pardon:

Arpaio’s life and career, which began at the age of 18 when he enlisted in the military after the outbreak of the Korean War, exemplify selfless public service. After serving in the Army, Arpaio became a police officer in Washington, D.C. and Las Vegas, NV and later served as a Special Agent for the Drug Enforcement Administration (DEA), formerly the Bureau of Narcotics. After 25 years of admirable service, Arpaio went on to lead the DEA’s branch in Arizona.

In 1992, the problems facing his community pulled Arpaio out of retirement to return to law enforcement. He ran and won a campaign to become Sheriff of Maricopa County. Throughout his time as Sheriff, Arpaio continued his life’s work of protecting the public from the scourges of crime and illegal immigration. Sheriff Joe Arpaio is now eighty-five years old, and after more than fifty years of admirable service to our Nation, he is worthy candidate for a Presidential pardon.

I think there should be a strong presumption against granting pardons. I would prefer that the judicial system, flawed though it is, have the final word on the fate of those who are, or who may be, before it.

But if presidential pardons are going to be granted, and every modern president has granted them, it seems to me that Arpaio is a good candidate, basically for the reasons set forth by the White House. Sheriffs shouldn’t defy court orders. But in a real sense, Arpaio’s crime consists of being overzealous in combating illegal immigration.

It arose in the context of lack of zealousness on the part of the federal government. According to this account, the judge found Arpaio couldn’t detain those who lack legal status because that’s the federal government’s job. But the feds hadn’t been doing that job.

Arpaio was accused by the Obama Justice Department and other left-wingers of targeting Hispanics. Indeed, the legal case that led to his conviction arose from claims of racial profiling. But in Maricopa County, the illegal immigrant population is overwhelmingly Hispanic. Had the County been plagued by mass illegal immigration by Koreans, chances are Sheriff Joe would have targeted Asians. And he would have been right to do so. Sheriffs shouldn’t be expected to check their common sense at the door.

To be sure, the pardon of Arpaio is, at least in part, a political act by a president who campaigned on a tough-as-nails immigration policy and who received Arpaio’s backing. But there’s a pretty good argument that the prosecution of Arpaio was also political.

It was the highly politicized, left-wing Obama Justice Department that chose to prosecute Arpaio in connection with the hot button political issue of enforcing immigration laws. The judge whose order Arpaio defied apparently was satisfied with civil contempt. Team Obama went criminal on the octogenarian sheriff. And it did so, according to Arpaio’s lawyers, just two weeks before he stood for reelection.

The pardon thus can be said to represent a political end to a political case.

Some may defend the pardon by comparing it to egregious pardons of the past, like President Clinton’s pardon of wealthy fugitive Marc Rich and President Obama’s pardon of a Puerto Rican terrorist. Arguing form these outliers strikes me as misguided. Their pardons were so flagrantly unjust that the same argument could be used to defend a great many indefensible pardons.

No such argument is required to defend Trump’s pardon of Arpaio. It was a reasonable exercise of the pardon power.