Monday, July 5, 2010

TGH Preemption and An Unholy Alliance

A recent post of mine on whether the Treaty of Guadalupe Hidalgo (TGH) applied to the current and extreme reactionary tactics of Arizona’s anti-immigration “law” drew some favorable and not so favorable comments. They therefore drive the intent of this post. Specifically the TGH post sought illustrating the preemption of federal law in specific situations.

I agree with one commentator and also add that the dominant legal discourse primarily rendered the TGH invisible. Further some of the comments against the framework of the current anti-immigrant rhetoric underscore the consequences of false legal norms. For example some Latinas/os support the anti-immigrant position for a number of vast and varied reasons but yet lack the requisite legal causation as to how state government actors breached federal law. The reason is part is because in innumerable situations legal educators have failed to include the wide diversity of the nation’s real history in training our youth.

Yet another reason remains. Until the entry of Latina/o law professors the Treaty’s legal story with very little exception thereby remained primarily the narrative of the Conqueror. This narrative reified false knowledge and left hidden the extent to which governmental actors employed law to dispossess the former Mexican citizens of their property interests.

Recent excursions in the historical record reveal a measure of how courts, attorneys and other government officials betrayed the supremacy clause and thus the Treaty’s intent.[1] That story however is beyond the limitations of this post but I’ve included a few examples of Latina/o law professors as well as a few others who have brought forth an alternative cuento that shows what occurs when the rule of law is ignored.

By analogy Arizona’s anti-immigration law highlights a realm of harmful consequences when governmental officials betray and violate federal law for their own personal gain.

A current example shows yet another instance of Arizona’s recalcitrance and insurgent actions where governmental actors fail to recognize the rule of law. In exchange violators of legal federalism guarantee chaos reins with arbitrary and unlawful costs foisted on those that demand accountability.

Specifically and drawing from an ABA Journal article the full title is provided because it speaks volumes —The Maricopa County Courthouse War, An Arizona Showdown Over Populist Politics, Abuse of Power and Pink Boxer Shorts in the ABA Journal — reports on a protest that took place in December 2009.[2] The protesters primarily lawyers had joined together at the Maricopa County courthouse with their posters declaring: “Rule of law!” and “Free Judges/Free People.” They “recited the oath they gave when joining the bar…” while emphasizing: “I will not counsel or maintain any suit or proceeding that shall appear to me to be without merit or to be unjust.”

The lawyers were protesting the arbitrary and capricious actions of the local prosecutor who had brought charges of bribery without an indictment against a judge (although later dropped) without cause. The article further reported that “hardball politics overpower Maricopa courts,” and a host of overly intrusive governmental actions unite “totalitarianism” with the actions of Sheriff Joe Arpaio and his working arrangement with local prosecutor Andrew Thomas.

This unholy alliance has perpetuated a host of retaliatory actions for critics of Arpaio and Thomas that are steeped with “. . . . racism, cronyism, and widespread use of law enforcement and criminal prosecution to settle increasingly bitter political intrigues.” In essence brandishing a slew of retaliatory actions constituting “. . . normal political retribution… .” For daring to criticize Arpaio and Thomas extra-legal activities critics would face volatile retribution.

Even more astonishing (or perhaps not) is that for their protests critics against the arbitrariness of Arpaio and Thomas activities would in turn face indictments. In one instance one such critic faced 118 charges although they were finally dropped. Yet while later walking in a parking lot Arpaio’s deputies “perp-walked him before the media—without charges or warrant —citing probable cause.”

Other charges read as a horror story of retribution against those seeking the rule of law such as the arrest of individuals who had applauded upon hearing criticism of Arpaio at a public meeting. The list of abuse of power between the prosecutor and the sheriff is an endless litany of injury to those who dared to challenge the authority of both men. One such instance included a sheriff deputy who had removed an attorney’s work product while she was talking to the judge during a hearing. The deputy was held in contempt and jailed for refusing to apologize for his outrageous actions. Arpaio however defended the deputy by calling him a “political prisoner.”

The list is endless reading like a horror story of mind-blowing proportions. Jumping back to the Arizona’s anti-immigrant “law” it also gives one pause. Specifically the Governor rejects critics who remind her of the preemption of federal law and the attendant arbitrary and capricious actions that will result from innumerable law enforcement officials. With unmitigated restraint she declares that no racial profiling will take place by law enforcement officials in administrating its anti-immigrant measures. Ha! If you believe such a declaration I have a lead on a London bridge for sale.

In the interim, check out the article as a reminder of a concrete instance when government officials betray their oath of office (that obligates upholding federal and state law). The value of the article moreover shows what occurs when insurgent harmful laws breach federal preemption of a particular field such as the supremacy of the Treaty of Guadalupe Hidalgo over state driven measures. In sum, the article adds immeasurably to arguments against simplistic “get tough approaches” such as those adopted in Arizona and which in their recalcitrance ultimately deny the rule of law.

[1]The list would include the work of inter alia Professors George Martinez, Christopher Ruiz Cameron, Placido Gomez, Laura Gomez and the author of this post. Of course a debt is owed the Chicana/o historians that opened the door to studies on the Treaty and especially Malcolm Ebright and his work on the New Mexico land grants.

[2]Terry Carter, ABA Journal (April 2010).

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