Wednesday, January 12, 2011


The United States of America is a Union of fifty sovereign states.

It is the duty of our federal government to represent our Union and to protect the states from incursion by foreign nations.

That’s not what’s happening in Arizona. The forty-eighth state of our Union is being sued by our federal government.

And if that were not bad enough, our federal government is now joined by eleven foreign countries to gang up on the State of Arizona and undo a law passed by its legislature and signed by its Governor, Jan Brewer. A law intended to protect her constituents from a tide of people entering the State in violation of federal immigration laws.

That’s right. The New York law firm of Dewey & LeBoeuf has filed an Amicus Curiae brief on behalf of the nations of Mexico, Argentina, Bolivia, Brazil, Chile, Costa Rica, Ecuador, El Salvador, Nicaragua, Paraguay and Peru protesting the new law which seeks to protect the citizens of Arizona from the hostile invasion of illegal immigrants.

I haven’t researched this point, but I must confess that the idea of the Federal government suing to declare a state law unconstitutional, strikes me as a pretty big stretch of the powers delegated to the politicians and bureaucrats in Washington D.C.

If the Arizona law is unconstitutional, someone who is affected by the law, and who therefore has a right to challenge it, will surely do so, and the courts will have their proper jurisdiction.

But the United States Constitution gives the federal courts authority only to hear actual cases and controversies. There is no such thing as an advisory opinion in a Federal Court.

U.S. v Arizona is essentially a political debate. It is an abuse of process to start a lawsuit just to get publicity or to influence public opinion.

If you’re getting the idea that I don’t have much regard for Mr. Holder’s lawsuit, you’ve got it right.

But it strikes me that there is a larger issue here.

Larger even than the unhappy business of our Department of Justice being used to wage political war against the sovereign State of Arizona.

By what right, by what precedent, by what modicum of decency should foreign nations be permitted to gang up on a State of the American Union?

Our fifty states have a lot of differences to be sure.

We’ve got red states and blue states, and lots of shades of purple states.

But when our Union is attacked, when outsiders come in and try to mess with one of our sister states, we are, as we must be, united. Shoulder to shoulder. One for all and all for one.

Amicus Curiae is a Latin term for Friend of the Court. A brief Amicus Curiae is a brief filed by someone who is not a party to a lawsuit, usually someone who feels that the outcome of the lawsuit will affect them in some way.

Courts don’t allow just anyone to file an Amicus Curiae brief. The trial judge or appellate panel must conclude that an Amicus Curiae brief will be helpful; that it will present arguments or perspectives which may not otherwise be considered.

While you don’t have to have an actual dog in the hunt, you do have to have something to say about it that will help the court.

I ask myself, should all those South and Central American nations have something to say about illegal immigration into the State of Arizona?

If the laws of Arizona are in fact contrary to the constitution of the United States, what business do Argentina and Bolivia and Paraguay have to complain?

If a citizen of Nicaragua is detained in Phoenix, whether legally or illegally, there are standard diplomatic channels for the Nicaraguan government to pursue.

An illegal immigrant, as much as any other defendant faced with criminal charges has a right to counsel and a constitutional right to a speedy and public trial. If the law under which he or she has been charged is unconstitutional, that defense can be raised. But the defendant’s native land is not a party to the case.

When we punish illegal immigrants who violate our laws, we are not making war against their native lands. When they enter our shores, whether legally or illegally, they become subject to the jurisdiction of our courts and the enforcement of our laws.

The involvement of foreign governments in our immigration dispute is a terrible thing. To permit foreign powers to inveigh against a State of our Federal Union, is to tolerate a state of hostility.

It is time for the other forty-nine States of the American Union to stand up and be counted.

It matters not whether they agree with Arizona, or approve of the statute in dispute.

But no State worthy of the title sovereign can stand by and let these foreign nations invade our courts to do battle against one of our sister states.

I intend to send this blog to the Attorney General of every State and urge them to file Amicus Curiae briefs opposing the participation of foreign governments in U.S. v Arizona.

I ask all my readers to join me in this effort.

It’s time for us to defend the Union.

1 comment:

  1. Dear Judge,

    I have not been schooled in the law but the Constitution and the Bill of Rights were not written with the intention of making them unintelligible to the common man. On the contrary, the Founders intended our nation’s blueprint to be plainly understood and accessible by all.

    So in reading these documents, I don’t find it difficult to arrive at what I believe is the only logical conclusion. Among the reasons for establishing our government are to, “insure domestic Tranquility, provide for the common defence”. The state of things in Arizona is certainly not tranquil and our borders are not defended or secure.

    As it is the Executive branch whose responsibility it is to execute the laws, it is plain that its utter refusal to secure the border amounts to dereliction of duty. For more than thirty years the federal government, and in particular the Executive, has failed the entire nation in this regard, but the toll on our southern states from its negligence has been nothing short of agonizing. The focus of this problem is currently on Arizona, although it remains a widespread problem across our entire southern border.

    For decades, every appeal from the state of Arizona to the federal government to simply do its job and secure the border has been ignored. The people of Arizona, having endured this “long train of abuses” were compelled to act in their own defense. They did so by passing SB1070 through their legislature which was signed into law by their Governor.

    It is clear from reading our founding documents that government may exercise only those powers which the people grant it and with those powers come requisite responsibilities. If the people grant a power to the federal government but that government fails in its responsibility, then the people are free to grant that power to its state government, or for that matter to its local government, if that is what it takes to resolve the matter. The government can’t arbitrarily decide which of its responsibilities it will live up to.

    Power flows from the people and the people of Arizona want their state government to resolve the problem of illegal immigration within their state. Consequently, any suit brought in federal court against the state of Arizona by the Justice department over the issue of illegal immigration should be dismissed for lack of standing. The people of Arizona have spoken on the matter.

    But if a suit must be filed in federal court, then it should be the People of Arizona v. the President of the United States for dereliction of duty.