As a supporter of laws like SB1070 and other state and local efforts to curb illegal immigration I am disturbed by the trend that federal courts are now weeding through state laws and deciding if they are constitutional or not. Whether or not you support state efforts to curb illegal immigration you have to agree that the courts have lost all prudence in this matter. They now want to chop through state laws and decide what is permissible for them to have and not have.

Pardon me but don’t the courts only have one function and that is to weigh the facts and punish those who break the law. The way a court system works is that the government brings the accused before it where they weigh the facts presented by the state in order to decide if the accused broke the law. They then meet out punishment based on what the law says.

Notice I said they don’t decide punishment because that has already been decided by the law. In fact, everything the court does is decided by law. The courts have this power because of the constitution and the same constitution gives them the power to judge the law as well as the facts. This is stated in Article III section 2 of the constitution.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In my opinion, the courts have the power to judge both the facts of the law and the law itself which gives them the power to declare a law unconstitutional and simply refuse to prosecute anyone found guilty of an unconstitutional law. The constitution gives them this power simply because it is written here and there power is protected by the fact that the other branches of the government can not remove one member of the Supreme Court. Without this legal protection of the power the Supreme Court would be subject to intimidation of the other branches of government.

Its important to realize that the same clause that gives the federal court the power to declare a law unconstitutional only gives it to the supreme court. All other courts are powerless to judge the law and can only the facts of the law because it says that the Supreme Court shall have appellate jurisdiction, both as to law and fact,. The constitution only gives the total federal court system the power to judge the facts of the law but the power to judge a law (evaluate its constitutionality) is reserved for the Supreme Court only. This helps to protect precedent that is necessary for uniformity in the federal court system because you can not have one federal law declared unconstitutional in one part of the country and constitutional in another. In order to establish uniformity the Supreme Court is the only one that can declare a law unconstitutional and all other courts can only judge the facts of the law and not the law itself.

Simply put, the federal judge in Arizona who blocked certain parts of the law because she thought it was unconstitutional had no authority under the constitution to do so. She could only follow previously established precedents that were established by the Supreme Court itself and judge the facts presented against the accused. This means that it is unconstitutional for a lower court to find any law unconstitutional since only the federal Supreme Court can do so.

In order for the Supreme Court to be immune from pressure from other branches of the government they have lifetime appointments. This make it possible for the Supreme Court to provide an important check against the other branches of government but the other branches of government are protected from the Supreme Court as well. The judicial branch of the federal government can not remove a single person from power even when they are in violation of the law.

This provides and important check against the Supreme Court because it prevents the federal court system from imposing its will onto the entire system. This allows the executive and legislative branches (as well as any state governments) to function free of any intimidation that the courts can apply to them.

This is the current state of affairs in our government and what is wrong with our Supreme Court in that they have no checks on their own authority because the other branches of the government have convinced themselves that they are the final say on the constitution. The other branches of the government have forgotten that the Supreme Court can not remove a single person from power. They can only punish people by what the law decrees so if a state such as Arizona chose to ignore the federal court’s decision they would be powerless to do anything about it. This is an important check in the system against the federal court system that nullifies their self-assumed power over the entire system.

Their power would then be returned to the narrow scope of deciding cases brought before it and not to the independent actions of the either the state or other branches of the federal government.

The only way the federal courts can nullify the Arizona law is if Arizona chose to bring a deportation case before it and even then it would only have the legal authority to judge the facts of the law only and not the law itself. The power to judge the law is reserved for the Supreme Court. The Supreme Court could decide if the law is unconstitutional but its precedent would only apply to the lower courts in the federal system and only to cases brought before it where a person is accused of violating the law.

This makes it possible for a state like Arizona to use its own courts to enforce its own illegal immigration law without any interference from the federal court system. The Arizona court system can then decide if the law is constitutional for itself. The federal court system would be powerless to stop it because they can not remove a single person from power. The state government would then carry out punishment based on its own law and completely ignore the federal courts.

Edward Browning Bosley
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