Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, April 28, 2010

Arizona Discussion

We have a couple of legal experts who participate in this blog either as contributers (Law Talking Guy) or frequent commenters (Seventh Sister). I'd like to hear their comments on this new immigration law in Arizona. Hopefully there are other legal types out there lurking in the ether who could contribute to a discussion here too. In particular I'd like their opinions on the following questions:

1) Supporters of the law say it's no different than laws already on the books in many states or in federal law. Critics seem to think aspects of it are obviously unconstitutional. They can't both be right. So how different is this law from those already in force and what are the major innovations?

2) There is a part of the law that says that individual citizens may sue the local authorities if they believe that the local authorities are not enforcing the law sufficiently. From an oversight perspective this is fascinating. I have never heard of a law including this kind of clause. It seems to be a kind of "notice and comment" rule on steroids. It would also seem designed to allow the "high demanders" set the bar for appropriate enforcement. My question to any legal types out there in the ether is this: How novel is this clause?


The Law Talking Guy said...

1. The law seems to allow state police to stop someone on reasonable suspicion of being an illegal alien, which is novel. State police could always ask about immigration status if there was another letigimate reason for the stop.

2. The issue is mandamus authority, not "notice and comment." Normally, individual citizens do not have standing to seek a writ of mandamus for the enforcement of laws that do not specifically target/benefit them. This is tailor-made for interest group litigation. I am not familiar with any such provision in other laws.

Raised By Republicans said...

What's a write of mandamus?

I used the term "notice and comment" because it relates to interest group influence on the implementation of laws by bureaucrats. I'm sure your terminology is better. I just don't know what it means.

The Law Talking Guy said...

"Notice and comment" under the Administrative Procedures Act is a process by which regulators promulgate regulations, which requires they be first put out to the public (i.e., to interest groups) for "notice and comment." This is a nonjudicial process. So I saw a rather tenuous connection to the idea of citizens suing the police to enforce their own laws.

A writ of mandamus (writ) is the standard judicial process whereby a private citizen can get a court to order a public official to do his or her job. In California, it is denoted a "writ of mandate" which is kind of irritating. It is also commonly used today as a means for immediate appellate intervention in lower courts. The writ of mandamus is used to order the executive to do its job.
FYI, Marbury v. Madison (1803) was a case under a writ of mandamus (Marbury wanted Sec State Madison (under Jefferson) to give him the appointment that Adams had given him on the last day of his term. Yes, that's the same "Marbury v. Madison" in which court used the occasion, as you well know, to establish the principle of judicial review vis-a-vis the US constitution (it was already known in the colonies).

Writs, as long as I am babbling about them, are cool. They are an ancient form of judicial action that survive with Latin names, the most famous of which is the writ of habeas corpus. Their Latin names attest to their origin in England, mostly in the period of 1200-1600.

The names for the writs, incidentally, usually stem from the first one or two Latin words of the old writs, just as papal bulls are named for their introductory Latin phrases. This causes a lot of confusion among those who don't know. Habeas corpus is frequently mistranslated because journalists are unaware that it is part of a larger phrase. It is as if we referred to the constitution as the "We the people" or the Dec of Independence as the "When in the course."

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