Monday, April 11, 2011

Boalties in the News

The Ninth Circuit just handed down a precedential opinion affirming the preliminary injunction against several sections of SB 1070, the Arizona Immigration Law.  Judge Richard Paez, a Boalt alumnus and Judge John T. Noonan, a long-time Boalt professor formed the majority, while Judge Bea (Stanford!!!) dissented. 

The line that grabbed my attention was in Judge Noonan's concurrance:
That the movement of the people of one nation into the boundaries of another nation is a matter of national security is scarcely a doubtful or debatable matter. Almost everyone is familiar with how the movement of the Angles and the Saxons into Roman Britain transformed that country.
Touche.  It looks like barring a cert grant from the SCOTUS, the key parts of the AZ law are dead letter. 


Anonymous Anonymous said...

Judge Noonan (b. 1926) thinks the immigration example "almost everyone" will be familiar with is the colonization of England by German tribes 1500 years ago? Awesome. No need to worry though: he says "[t]he situation of the United States is less precarious" than that of Roman Britain.

4/11/2011 12:31 PM  
Blogger Dan said...

How great would it have been if he added, "And I oughtta know; I was there."

4/11/2011 1:40 PM  
Anonymous Anonymous said...

i found his comment interesting, because the way that story is usually told is that the celtic bretons unwisely invited in the angles and saxons, and thereby lost their land, their culture, and their future. so what is noonan getting at?

4/11/2011 1:48 PM  
Anonymous Anonymous said...


That's exactly what he is saying. His point is that because of these risks, immigration is a national security matter that is committed to the federal government and not the states.

4/11/2011 1:54 PM  
Anonymous Anonymous said...


4/11/2011 5:46 PM  
Anonymous Anonymous said...

Wow, the ideas discussed at the symposium I just attended as a 0L area all of a sudden quite important. Somebody better shoot a link over to Prof. Ha*ey Lo*ez.

4/11/2011 10:39 PM  
Anonymous Anonymous said...

Remember this is only a preliminary injunction, so the final decision is yet to come. However, obviously judges do not frequently change their minds. Also note that SCOTUS is very unlikely to grant cert to review the preliminary injunction, as it almost always waits for the final judgment.

4/12/2011 8:45 AM  
Blogger Armen said...

8:45, that's a fair point in most cases, but this is a facial challenge. A determination that the United States is likely to succeed on the merits in a facial challenge is pretty much outcome determinative. There's literally almost nothing that Arizona can do at this point, short of revising the statute itself. And if the case is important enough, the Supreme Court would not hesitate to enter the fray even if only a preliminary injunction was at stake. See Winter.

4/12/2011 9:23 AM  
Anonymous Anonymous said...

the angles and saxons line was more clever and deliberate than we give credit: he was pointing out both that the "anglo-saxons" in the US who rail against immigration have been on the other side of the issue, as well as that for all such railing, there are few (no?) examples of a nation-state being overrun by immigration

4/12/2011 3:59 PM  
Anonymous Anonymous said...

3:59, I don't think it is more clever then we give credit. I think it is that exact reason that Armen was crediting it in the main post. Thus the "touche."

4/14/2011 11:04 AM  
Anonymous Anonymous said...

11:04, I think you give him too much credit. He could made the same point more effectively with a much more recent example -- immigrants from the U.S. East Coast transformed Indigenous/Mexican/Spanish Arizona. That would have been more artful, since those that oppose immigration in Arizona are Americans, not Angles or Saxons or even Anglo-Saxons. And it has the added appeal of having occurred in the very place at issue.

4/16/2011 3:50 PM  
Anonymous Anonymous said...

3:50, you have given your own analysis too much credit. to use the "americans" example you suggest would be to view the immigration quarrels as one about "america" and "other countries". whereas in reality, the conflict is mostly about white america, including many of anglo-saxon descent, versus brown mexican immigrants. likewise, the terminology is off, as east coast movement to the southwest was legal migration, rather than illegal immigration

4/17/2011 6:16 PM  
Anonymous Anonymous said...

6:16, you give too much credit to your argument that I give too much credit to my argument that earlier posters gave Judge Noonan too much credit.

First, as you recognize, "White" does not equal "Anglo-Saxon." Arpaio is an Italian name. Only a small minority of the White people that oppose immigration are Anglo Saxon.

Moreover, even the minority that is "Anglo-Saxon" does not much to do with the "Angles and Saxons." In the American dialect "Anglo-Saxon" means something like "of English ancestry." You see this usage in the "AS" in "WASP." The blood, language and culture of the Angles and Saxons were diluted by Celts, Danes, Normans, etc. over a millenium before anything "English-ness" emerged.

It is helpful to say this is an issue of White vs. Brown. That argument will not change anyone's mind because no one believes they are a racist. The better strategy is to to point out to the opponents of immigration that the "White" culture they are defending is mongrel and ever-changing. That when Joe Arpaio's ancestors came to this country, they were too demonized as other and criticized for failure to assimilate.

Second, I never said White immigration to the Southwest was "illegal." But like the immigration at issue in the case, it did cross the U.S.-Mexican border. Remember the Alamo?

By contrast, the immigration of the Angles and Saxons was neither cross-border nor illegal. It occurred in a post-Roman era where there were no governments, nation-states, or law in a form that we would recognize.

The more recent example is better because it because it reminds opponents that the land they are defending was Mexico before it was the U.S. This reminds opponents of immigration that their right to live prosperously while preventing others from doing the same is an accident of birth and history

4/20/2011 11:15 AM  
Anonymous Anonymous said...

Correction: I meant to say, "It is NOT helpful to say this is an issue of White vs. Brown."

4/20/2011 11:18 AM  
Anonymous Anonymous said...

I successfully used this thread as a chaser to the teaching evaluations thread. Thanks, esp @11:15 AM

4/25/2011 5:36 PM  

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