Valle Del Sol v. Whiting, 709 F.3d 808 (9th Cir. 2013)

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.

Comite de Journaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 396 (9th Cir. 2011)

“This is folly.” These are the opening words of 9th Circuit Chief Judge Kozinski in his dissent in this case . Incredibly, nine judges in an en banc decision supported the majority decision forbidding the city of Redondo Beach from enacting an ordinance forbidding day laborers to congregate on street corners soliciting employment.  The City submitted evidence that these purported workers interrupted traffic, blocked sidewalks, urinated, and harassed women.  In support of its ordinance, the City copied the same ordinance the 9th Circuit had approved in an earlier decision.  The 9th Circuit panel overruled its previous decision without affording either party any  notice nor did they brief the issue..
According to the majority, the First Amendment applies.  Do we need an explanation of the confusing rules  on free speech to apply to the facts described  above? The majority fears the ordinance might prohibit girl scouts from selling cookies, young children selling lemonade or some other unrealistic alternative.  The ordinance “sweeps to wide.”  Yet there is no evidence of any misuse of the statute, and a failure to allow a city to control its streets defies comprehension.  As the dissent points out, this decision allows an unelected federal court to determine whether an otherwise narrowly worded ordinance is unenforceable.
This case is also another intervention by a federal court into an exclusively city matter long considered a municipal function.  The ordinance is in two simple paragraphs, easily understood, and easily applied.  That the City would interfere with girl scouts or lemonade sales is preposterous.
Moreover the plaintiffs challenged this ordinance as facially unconstitutional without any evidence of any discriminatory practices in its enforcement.