Archive for the 'immigration' Category

Fed. Dist. Ct. enjoins South Dakota ban on concealed carry permits for legal resident aliens

Posted by on Feb 10 2011 | Constitutional Law, guns, immigration

(David Kopel)

Decision here. Not decided on Second Amendment or other RKBA grounds. Very straightforward application of existing doctrine on equal protection and legal aliens. In short, state (but not federal) discrimination against legal aliens is subject to strict scrutiny. There is an exception for “governmental functions” which involve discretion in self-governance of the polity–such as voting, teaching in public schools, being a peace officer, etc. Those exceptions were not relevant here, so the South Dakota limitation of concealed carry permits to citizens only is preliminarily enjoined.


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Bringing a case against Arizona before the Inter-American Commission on Human Rights

Posted by on May 26 2010 | immigration, International Human Rights Law

(David Kopel)

Apparently that is the plan of several Mexican and Arizona legislators. (Original story in Spanish from El Semanario here.)

The Inter-American Commission on Human Rights is the Oranization of American States administrative body responsible for hemispheric human rights enforcement. Generally speaking, if the Commission finds that the government has violated human rights, the Commission attempts to resolve the matter by issuing recommendations to that the government. However, if the Commission considers the case unusually important, or if the government obdurately ignores the recommendations, the Commission can bring the case to the Inter-American Court of Human Rights.

That Court, ocated in San José, Costa Rica, has the duty is to interpret and hear cases on the American Convention on Human Rights. Significantly, however, the Convention has only been ratified by 24 of 35 OAS members, and the United States is not among the ratifiers.

Accordingly, the United States is not currently subject to the Court’s “adjudicatory function.” (In an adjuticatory function case, the defendant government can be ordered to pay money, or to do particular things). The adjuticatory function is available only if the defendant government has accepted the Court’s jurisdiction, and has ratified the American Convention on Human Rights. A state can accept the Court’s jurisdiction on a case-by-case basis, or can submit to blanket jurisdiction.

Besides adjudicating cases, the Inter-American Court can also act in an Advisory function. It does so when asked by an OAS agency or OAS member state. In the Advisory role, the Court can interpret the American Convention on Human Rights, or any other treaty which applies to human rights in the Americas. The Court can also advise whether existing or proposed domestic laws are compatible with those treaties.

Thus, unless the Senate ratified the American Convention on Human Rights and the US government accepted the jurisdiction of the Inter-American Court, neither the Court nor the Inter-American Commission on Human Rights can issue a legally binding decision against the Arizona laws against illegal aliens. Either the Commission or the Court could issue non-binding advisory opinions as to whether the Arizona laws violate international law.


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Bloggers disagree on politics of offshore drilling, and immigration

Posted by on May 10 2010 | Blogosphere, energy, immigration, National Journal poll political bloggers

(David Kopel)

The latest National Journal poll of political bloggers asked: “With the Gulf of Mexico oil spill, does it make political sense for President Obama to stick to his plans to allow increased oil and gas development along the coasts?” Only 6% of the Left, but 75% of the Right thought that it did still make political sense. I thought it didn’t make political sense, unless the President were ready to make a strong affirmative case: “The president would have to convince the public why some types of new drilling would not pose the same risks that the BP well did.”

The other question asked what is best for the Democratic/Republican parties this year on immigration. Two-thirds of the Left thought Democrats would be best off with a pathway to citizenship, and without any tougher enforcement. Nobody on the Right thought that would be a good idea for Republicans. The Right bloggers split between citizenship + enforcement, enforcement without citizenship, and “stay away from the issue.”

My vote was for the middle choice, at least as the essential first step: “Effectively closing the border has to come first. Offering citizenship but without effectively securing the border would simply repeat the mistake of 1986 and result in even more illegal immigration.”

This poll marked the last of the National Journal’s weekly blogger polls as part of NJ’s “Blogometer.” The National Journal is undergoing major budget cuts, and Blogometer is disappearing, although parts of its will be folded into other National Journal coverage.

Far worse, from a social utility point of view, than the disappearance of the blogger polls is National Journal cutting Stuart Taylor’s weekly column. Taylor is one of the best legal journalists in the United States, and he will continue to write for a variety of other outlets. However, the loss of his weekly column is a major loss of high-quality legal journalism.


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