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A recent tweet on twitter after Oakland Mayor Libby Schaaf warned her Sanctuary City of upcoming Immigration and Customs Enforcement (ICE) law enforcement action read: By alerting law breakers, any 'death by illegal' or even injury by same in @Oakland is on your Mayor. Best lawyer up, I would think. #ICE #Obstruction.
On February 28, 2018 Fox News ran the headline: DOJ looking into possible obstruction charge against Oakland mayor who warned of ICE raid.
Between the left and right positions on Mayor Schaaf's decision to alert her constituents, debate on social media and among the public raises the question: did the Mayor violate 8 U.S. Code § 1324 or the federal law Against Hiring or Harboring Illegal Aliens.
An answer lies in Article 6 of the U.S. Constitution, which states that the supreme law of the land supersedes law of a lower government. Article 6 also states that federal law is the supreme law. How so? The legal doctrine of Preemption.
What is a legal doctrine?
A quick Wikipedia search results in this definition: A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows for it to be equally applied to like cases. When enough judges make use of the process, it becomes established as the de facto method of deciding like situations. De facto, according to the Cambridge English dictionary (after all, the American legal system of common law is based on the English court system), is defined as "existing in fact". When it comes to the law, it's the facts, not the fiction that are "materially relevant" to the issue in dispute. Judges are to consider the facts, not the subjective emotional passionate dramatic prose and sonnets in each party's plea.
With that in mind, examining the legal arguments in the zeitgeist of Trump's America and its controversial immigration stance, do we find the court of public opinion rendering judgments left, right, and center on Mayor Schaaf. One side calls it treason. Another thinks it humanitarian civil disobedience. The idiomatic expression "just because its legal doesn't mean its right," has been posted across social media.
What is an arbitrator to decide? What distinguishes civil disobedience from obstruction of justice? Or interference, facilitation, acting in concert from moral obligation or conscientious objection?
What if the Mayor's tip led to gang members getting away and later causing harm to innocent people? Domino theory suggests that by warning illegal alien criminals who would have been apprehended if not for the heads up, any tragedy committed afterwards by an act of aiding and abetting, the Mayor would be the de facto cause of a domino effect that led to a death or grave injury that could have otherwise been avoided.
In legal circles there are lawyers and other jurisprudence experts who believe that "a case ain't over until the federal lady sings." The legal doctrine in Article 6 of the U.S. Constitution establishes the supremacy of federal law over all else. Local, County, and State law is subordinate to federal law. It is not up for debate anymore than the statement that a Roman Catholic Pope lives in Vatican City. One can't debate the absolute. These types of hard facts of reality are well, reality.
Sworn law enforcement officers take an oath to protect and serve. Those who have already convicted the Mayor of Oakland in their own minds argue that she facilitated a violation of that oath which some believed sacred. We all know oaths are sacred. Or do we?
After Mayor Schaaf warned about ICE, raids the news media reported that there were 150 arrests in the San Francisco Bay Area over the last weekend of February 2018. Some reported "that about half of the individuals it (ICE) arrested had criminal convictions, including convictions for assault and/or battery, crimes against children, weapons charges and DUIs.
Commentators on Facebook posted:
"Be grateful that America allows naturalization. Japan, Germany, etc. many nations in all other continents have a citizenship law that asserts that "by blood only" can one have the privilege of citizenship. A fourth generation German in the US has a right to German citizenship by bloodline alone. A person who as an ethnic minority and the fourth generation or later born on German soil can never get citizenship. They are eternally a permanent resident subject to the approval of the government, which can pull it at anytime for no reason. In the US, the government has to have a reason such as a felony conviction to do it."
What does federal law say?
8 U.S. Code § 1182 (14)(f): Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
Speaking of the US Constitution and the Rights and Protections it affords...
At its core, if you are not a U.S .citizen and don't have the right to enter and exit the country freely anytime, you are not able to invoke US Constitutional Rights. They are only applicable to Americans citizens who are citizens under the law not because "you feel American" or "have lived here all your life." If you can't honestly obtain a US Passport in your own name you are not an American citizen. If the recent Supreme Court ruling that alien nationals can be held indefinitely does apply to you, you are not an American citizen in the eyes of the US Constitution.
Judges rule and set a precedent but it can be overturned. The Supreme Court can overturn it's own past rulings. A judicial ruling can change. The letter and spirit of the law is eternal. Only a repeal can change whether a law exists on the books and can be invoked to enforce the law, but a law repealed can be reinstated later.
ICE enforcement activity in California is the result of a conflict of laws and a state and its cities not recognizing that federal law trumps all others. The Mayor's warning of ICE activity has been called defiant. At the very least it may have undermined ICE's ability to remove individuals that the federal agency has deemed subject to removal. The Mayor exercised her prerogative as an elected official by (hopefully American citizen residents of) the city of Oakland. She also asserted the separation between cities, states, and the federal government. However, if federal law supersedes all else, the actions of the Mayor were clearly not congruent with the priorities of ICE.
Politically, it's already looking like a showdown between acting ICE Director Homan and Oakland Mayor Schaaf. If lady justice's heart beats only for federal law, the ramifications could result in serious legal precedents reverberating all across the United States.
8 U.S. Code § 1324(a)(1)(A)(iii): Criminal Penalties
Knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;
(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
(I) engages in any conspiracy to commit any of the preceding acts, or
(II) aids or abets the commission of any of the preceding acts,
shall be punished as provided in subparagraph (B).
(B) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs—
(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, imprisoned not more than 10 years, or both;
(ii) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined under title 18, imprisoned not more than 5 years, or both;
(iii) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) during and in relation to which the person causes serious bodily injury (as defined in section 1365 of title 18) to, or places in jeopardy the life of, any person, be fined under title 18, imprisoned not more than 20 years, or both; and
(iv) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) resulting in the death of any person, be punished by death or imprisoned for any term of years or for life, fined under title 18, or both.