Friday, May 21, 2010

If I were president ....

... and a state passed a law that concerned me. Here's what I'd do.

  1. I'd READ it thoroughly.
  2. I'd get on the shoe phone to my AG and say, "Have one of the elves evaluate the federal statute with regard to this law, and write up a comparison. I want it in 48 hours."
  3. "In addition, have the elves search case law for applicable cases and decisions. I hear there's this thing called LexisNexis (ETA: As per Bezzie--Thanks!). Write me a short report, and talking points and put in on the teleprompter."
If I did this, here is what I would have found out in 48 hours max:

That the federal statute gives far more latitude to law enforcement than the Arizona law AND that the Arizona law actually codifies the "no profiling" restriction, which which federal law doesn't.

Think the federal law is a lawsuit waiting to happen? Well, you're late.

MUEHLER V. MENA (03-1423) 544 U.S. 93 (2005)
332 F.3d 1255, vacated and remanded.

The Supreme Court found in a .... are you sitting down....9 to 0 decision (even Bader Ginsburg crusty liberal that she is, concurred), that the federal law is constitutional, and that law enforcement does not need a reason to ask for proper identification and proof of residency. This case revolved around unlawful search and seizure, and is very clear.

Chief Justice Rehnquist wrote the opinion...not majority opinion, mind you...the OPINION.

Read paragraph 14:

The Court of Appeals also determined that the officers violated Mena’s Fourth Amendment rights by questioning her about her immigration status during the detention. 332 F.3d, at 1264—1266. This holding, it appears, was premised on the assumption that the officers were required to have independent reasonable suspicion in order to question Mena concerning her immigration status because the questioning constituted a discrete Fourth Amendment event. But the premise is faulty. We have “held repeatedly that mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434 (1991); see also INS v. Delgado, 466 U.S. 210, 212 (1984). “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.” Bostick, supra, at 434—435 (citations omitted). As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.

Once I saw this, I'd shut up. Or have my word smith elves construct a line or two that I could use that would not put me in an awkward position. (Mostly because I "like" law enforcement almost as much as I "like" the military, and can't seem to be able to keep this fact under wraps.) I'd then tell my minions to keep their opinions to themselves unless they could come up with grounds that wouldn't suck us down like quicksand..... I have no problems with pragmatists.

I would like to request that our elected officials, particularly those who are supposed to be smarter than God, understand the actual laws of the country they are supposed to be representing. Is that asking too much? (This debacle makes W looks like Einstein.)

Oh and ACLU....Game on!


kemtee said...

I wonder if someone will magically shut off access to that font of information…

Bezzie said...

Actuall Madame President, it's LexisNexis. ;-)