The 9th Circuit record on immigration cases is deplorable not only for its obvious solicitude for illegal aliens but its unwarranted attacks on IJ Judges. The 9th Circuit uses U.S. criminal law and Constitutional law to apply in all forms of immigration appeals, i e. 6th Amendment “ineffective assistance of counsel” when counsel is not required in immigration cases (the previous attorney general in the Bush administration no longer accepted that excuse. The current AG reversed that opinion). 9th Circuit panels ignore the IJ who concludes the applicant is not credible, and then they substitute their own judgement as often as they do in criminal cases. Here is an illustrative case.
The Arizona legislature enacted a statute to prohibit solicitation by day laborers standing on public streets. The statute attempted to eliminate traffic snarls while drivers negotiated terms of the labor. In addition, the statute expressly directed this legislation toward elimination of illegal aliens who constitute the majority of applicants.
The plaintiffs challenged the legislation on grounds it constituted “commercial speech” protected by the First Amendment. The 9th Circuit panel launched into an extensive dissertation of “commercial speech” without citing any Supreme Court cases confirming the right of day laborers to solicit labor on public streets. Eliminating traffic congestion is “commercial speed” protected by the First Amendment?
Here is the Supreme Court definition of Free Speech: “At the core of the First Amendment are certain basic conceptions about the manner in which political discussion in a representative democracy should proceed. The central purpose of the Speech and Press clauses was to assure a society in which uninhibited, robust, and wide-ed open public debate concerning matters of public interest would thrive, for only in such a society can a healthy democracy flourish.The First Amendment creates an open marketplace in which differing ideas about political, economic and social issues can compete freely for public acceptance without improper government interference;” Knox v. SEIU Int. Union, Local 1000, 132 S.Ct. 2277 (2012). And this Supreme Court commentary prohibits a state from controlling traffic congestion caused by day laborers?
After a thorough discussion of this irrelevant topic in the context of traffic control, the 9th Circuit panel turned its attention to the other reason for the Arizona statute-to limit the presence of illegal aliens. Somehow this legislataon is unlawful and an excuse to deport, or at least, remove their presence.
This simple and obviously realistic Arizona state legislation could have been disposed of in two paragraphs. First, controlling traffic is a legitimate objective and this statute is a reasonable attempt to do so. Second, removing illegal aliens from within a state is unrelated to immigration and enforceable by the state. End of analysis. How any court could devote endless savaging of forests to print this case as a a First Amendment issue is inconceivable.
As noted above, the 9th Circuit will seek some kind of constitutionalization of routine conduct. Preventing day laborers to stand on the street and create traffic jams is not a Constitutional question. This is not the first time the 9th Circuit has forbidden traffic control among aliens. In Comite de Journaleros v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) the city council passed a similar ordinance and the 9th Circuit struck it down also on First Amendment grounds.
An interesting sidebar. Plaintiff had standing because they had to file litigation and that task interfered with their business.