THE TIME IS NOW

**This blog entry was written previously and is being reposted here.  I will post all of my previous articles here as a method to consolidate all articles in one location**

Before I start this article and before people begin to rake me over the coals for flawed legal analysis, let me caveat this article by saying that I am NOT a lawyer (but I did stay at a Holiday Inn Express last night).  I am writing this article on some of my own observations and, ­­dare I say it, common sense and logic.  I have read the decision by Judge Bolton as it relates to the Arizona law SB1070.  It seems to me that the entire judgment was a travesty to a society founded on law.  The federal government’s argument is ridiculous and the judge’s ruling even more so.  Part of the judge’s ruling states the following:  "Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities."

What could be more of a priority than to ensure the safety of the citizenry and security of the borders?  Isn’t this the primary function of government and more specifically the Department of Homeland Security, to include the Border Patrol, Immigration and Customs Enforcement (ICE)?

But beyond that, it seems to me that if we are to extend the same logic that the judge used in this ruling to all laws that are overseen by the federal government as the basis for a preemption argument we, as a nation, are in big, big trouble.  Here is just one example:  Arizona state law classifies as illegal, under Title 13 – Criminal Code 13-3552, the commercial sexual exploitation of a minor (excerpt follows):

13-3552. Commercial sexual exploitation of a minor; classification
A. A person commits commercial sexual exploitation of a minor by knowingly:
1. Using, employing, persuading, enticing, inducing or coercing a minor to engage in or assist others to engage in exploitive exhibition or other sexual conduct for the purpose of producing any visual depiction or live act depicting such conduct.
2. Using, employing, persuading, enticing, inducing or coercing a minor to expose the genitals or anus or the areola or nipple of the female breast for financial or commercial gain.
3. Permitting a minor under the person’s custody or control to engage in or assist others to engage in exploitive exhibition or other sexual conduct for the purpose of producing any visual depiction or live act depicting such conduct.
4. Transporting or financing the transportation of any minor through or across this state with the intent that the minor engage in prostitution, exploitive exhibition or other sexual conduct for the purpose of producing a visual depiction or live act depicting such conduct.
B. Commercial sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13-705.

AND here is the federal Law:

TITLE 18 > PART I > CHAPTER 110 > § 2251
§ 2251. Sexual exploitation of children
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.

They are quite similar.  As a matter of fact, the federal law is, essentially, restated in the state statute.  Much the same way federal immigration law is restated in AZ SB 1070.   Are we to understand that state and local municipalities are prohibited from enforcing child pornography laws because this would pre-empt the federal government as it would divert resources from the Department of Justice’s other responsibilities and priorities?  I would hope NOT.  I think it is safe to say that most sane people would say that IF there were a sudden rise in child pornography and local jurisdictions began to refer cases to the DOJ for adjudication that they would expect the DOJ to take those cases.  Using Judge Bolton’s ruling as a guide it would be possible for the DOJ to claim preemption because they have other responsibilities and priorities and a sudden increase in Child Pornography cases would divert resources.  Does that make sense to anyone?

A by-product of the ruling is the idea that a State may not enact a law to support and supplement federal law. This can and may have far reaching ramifications and unintended consequences in the future.  This has the possibility of affecting prosecutions and verdicts in many jurisdictions.

But there are more basic questions.  For example:  What does it mean when the federal government takes a position against the enforcement of a law that would have the effect of assisting that same federal government in fulfilling its obligation under the United States Constitution in favor of millions of law breakers?   How does the federal government justify a position of accepting the status quo rather than accept the help of state, county and municipal jurisdictions indentifying, detaining and arresting people who have violated our countries immigration laws? What has happened to the rule of law?

There is no argument that the federal government has failed and continues to fail in its duty to protect and defend the general welfare of the citizens of this country.  No one is denying this fact.  What is unbelievable is that the government, while acknowledging its failure to properly enforce the law, continues to erect obstacles to ensure the status quo.  The solution to the border problem is not solved by closing park lands and erecting signs south of Phoenix warning citizens that there are drug smugglers in the area, but by immediately increasing forces along the border to keep the smugglers out.  The government’s response to Arizona SB1070 is inconceivable, but somehow, not surprising.

How many hospitals must be shut down?  How many billions of dollars must we spend on social services, medical care, and schools?  How many citizens and legal residents must be assaulted, robbed, raped, and killed before we finally demand that the federal government do its job?  We have to ask ourselves, how long are we going to accept the federal government’s dereliction of duty?  How long are we going to wait for the petty politics in Washington to catch up to the real world realities along our southern border?  There comes a time when states must take a stand for what is right and what is just.  There is a time when states must act in the interests of their citizens’ safety and security.

For Arizona, that time is now!