Gary Raney said he is bothered by the Joe Arpaio pardon on “…the law enforcement front, the constitutional law front, and the presidential pardon authority front.” Okay…
Raney is far from a constitutional scholar. We know that because as Ada County Sheriff he is on record answering the hypothetical question about standing in the way of federal gun seizures by citing the Supremacy Clause as the paralyzing force that would render him powerless to do so.
The “Supremacy Clause” of the US Constitution (Article VI Section 2) refers to federal supremacy in law – when it is enforced in pursuance of an enumerated Constitutional power/duty and there is a conflict with state law. Seizing guns from citizens is clearly outside of the narrow and qualified supremacy power of federal law. The correct and oath-inspired answer to that question from a Constitutional Sheriff would have been, “Yes, I will interpose my office between the citizens I serve and an overreaching federal government in that circumstance. I will stand on my oath to defend the Constitution and the unalienable Second Amendment right of The American People.”
Evidently, Raney does not know that a Sheriff’s oath is not only required by the US Constitution (Article VI Section 3) but tied to it — not to what a judge says. Would Raney have arrested Rosa Parks? One’s oath must withstand the forces working to undermine the Constitution & Bill of Rights, or it is made of empty words — leaving The People unprotected from federal and state overreach.
Sheriff Joe Arpaio understood and honored his oath. In that regard, he was a Constitutional Sheriff. He served in a politically charged environment where the federal government was abdicating a constitutional duty — establishing a uniform rule of naturalization (Article 1, Section 8, Clause 4). From that enumerated power the Supreme Court in 1876 ruled that immigration regulation was an exclusive federal responsibility. Despite pleas to the Obama Administration by Arizona Governor Jan Brewer for the federal government to police the border effectively, there was no real change. American citizens in Arizona continued to suffer crimes and economic strain from illegal aliens.
Under Obama, sanctuary cities were ignored by the DOJ. Many illegal aliens in those cities were killing and raping US citizens; crimes that would not have happened if the illegal alien offenders were arrested and deported before they could prey on Americans. Furthermore, illegal immigration to the interior of the USA was decriminalized under the Obama Administration.
While it is true that returns (deportations) of new illegal entries were up under Obama compared to Bush, illegals who essentially made roots beyond 100 miles from the border were rarely deported. The revolving door at the border for new illegals made him look tough on immigration enforcement. Obama’s deportation numbers were used to misdirect the American people. It was smoke and mirrors. For instance, in 2009 Obama abandoned Bush-era work site enforcement operations. There was little fear of deportation from the interior of the USA under Obama, resulting in securing bloc (Democrat) votes from “rooted” illegals. By 2012 ICE deported only 19% of the over 400,000 illegal aliens jailed by local authorities and placed on an ICE detainer under the authority of the Secure Communities Program.[i] The program allows local authorities to hold the alien for ICE rather than releasing him/her on bond or after serving time for the offense(s). Furthermore, about 50% of those that ICE chose to not deport ― re-offended! In 2014 the deportation rate of illegal aliens not explicitly targeted by ICE was one-half of one percent.[ii] Under Obama, there was virtually no fear of deportation from the interior of the United States even after arrest by local police. This encouraged more (illegal) entry.
In 2002, under President George W. Bush, Section 287(g) of the Immigration and Nationality Act was signed. It allowed DHS to deputize local law enforcement agencies to enforce federal immigration law. 70 agencies signed on as force multipliers for ICE, including the Maricopa County Sheriff’s Office led by Sheriff Joe Arpaio.
A lawsuit was brought against Joe Arpaio in 2007 when his deputies were working under the authority of 287(g). The plaintiff, a Mexican, was held – in good faith – for 9 hours before it was determined he was in the USA legally under a valid tourist visa. The complaint grew into a class action suit and was used by the members of the media and so-called civil rights activists to spin allegations of racism and racial profiling by Sheriff Arpaio.
In my opinion, Sheriff Arpaio was targeted by the federal court for political reasons. It is absurd for the court to expect local law enforcement to ignore the empirical evidence that most illegals in the border state of Arizona are of Mexican descent and share common features and language. Those are reasonable factors for some level of investigative detention just as they have been for ICE.
Consistent with Obama’s self-evident objective to decriminalize illegal immigration, in 2009 he withdrew the authority of 287(g). Nonetheless, Arpaio continued to target illegal immigrants.
In May 2013 Federal Judge Murray Snow ruled that Arpaio’s office engaged in racial profiling over a five-year period. Subsequently, an injunction was put on the Sheriff to stop detaining suspected illegal aliens. This injunction further decriminalized “illegal immigration” by describing it as a civil matter, not a criminal one.
The bold Sheriff Joe Arpaio did not fully comply.
In 2015 Arpaio was found guilty of (civil) contempt of court by Federal Judge Susan Bolton (a Clinton appointee) who presided over the contempt charge – without a jury – and over Arpaio’s VI Amendment objection. The court cited “case law” ( Muniz v. Hoffman, 422 U.S. 454; United States v. Rylander, 714 F.2d 996; Taylor v. Hayes, 418 U.S. 488; United States v. Aldridge, 995 F.2d 233; United States v. Berry, 232 F.3d 897) to deny Arpaio his request for a trial. The argument was that a potential jail sentence of 6 months was petty and therefore would not require a jury—in the court’s opinion. Really? A potential six-month sentence is no small amount of time in jail for Arapio at age eighty-five. The judge became three in one: judge, jury, and executioner, but it was “legal.”
Arpaio’s sentence was to begin on October 5, 2017. The evidence against Arpaio was his statements to media about his intent to continue business as usual (detaining suspected illegal aliens). The contempt case was under appeal to the SCOTUS when President Trump exercised his constitutional prerogative to pardon Joe Arpaio (under Article II, Section 2).
Raney is wrong “on the constitutional law front”. His comments are on the wrong side of a Sheriff’s constitutionally required oath and the broad Constitutional power of a president to pardon. Trump saw that Arpaio stood on his oath when he defied the court injunction. He saw that Arapio was being persecuted to send a message to all sheriffs by proxy not to stand up to federal abdication of duty on enforcing immigration law. He saw that Arpaio’s request for a jury trial was denied and the deck was stacked against him leading to his conviction. Regardless of the optics, it was a very principled pardon. I believe James Madison would be proud of Trump’s judicious use of his power to pardon in this instance. I cannot say the same for Presidents Clinton and Obama.
Not withstanding Trump’s expressed affection for Arpaio adding to the media-promoted perception of political payback, the pardon was nothing of the sort. Joe Arpaio did his duty. In the face of a federal government abdicating its duty he upheld his oath of office. Contrast the context of Trump’s first pardon here to the related actions of the Clinton and Obama Administrations.
In the spirit of Social Justice (a Marxist construct) President Obama granted clemency to 1,927 individuals convicted of federal crimes. 504 of them were life sentences. Obama holds the record for the largest single-day of commutations when on January 19, 2017 (his last day in office) he issued 330. He issued more commutations than the past 13 presidents combined.
President Clinton pardoned fugitive Mac Rich. Rich was on the FBI’s most wanted list for illegally trading oil with Iran. Rich’s wife gave $450,000 for the Clinton library and over a million in campaign contributions during Clinton’s reign. Talk about political payback!
Trump’s pardon of Sheriff Joe Arpaio was the right and moral thing to do.
Raney is wrong on the “law enforcement front” too. Illegal aliens commit a lot of crime. Nearly one-third of federal prisoners are illegals. They are not in federal custody for mere illegal entry. They are in custody for additional crimes like murder and drug running. Furthermore, for Raney to impugn Arpaio by commenting on the number of deaths in the Maricopa County jail is like saying the principal of Eagle High School in Eagle, Idaho is better than the principal of Orr Academy in Chicago because the former has fewer hallway fights than the later. Apples and oranges. The Ada County Jail holds 1,217 beds. The Maricopa County jail holds 2,064 beds. The inmate numbers and demographics are very different between the two counties. Raney (now a consultant) had it easy as Sheriff by comparison to Arpaio or any Sheriff of a border county. Before being a Sheriff’s Deputy in Ada County, I worked in San Diego County as a city peace officer; I know the differences.
Sheriff Arpaio was courageous. He was willing to be jailed for upholding his oath. He was willing to gamble on the power of a jury to exercise its right to nullify the misapplication of law and free him of a contempt charge. That right comes under the Ninth Amendment (albeit not expressly stated). When his request for a trial by jury was denied and he was convicted by a lone Federal Judge, President Trump exercised moral agency and pardoned him. Arpaio didn’t get extra protection as Raney said; he was being persecuted for challenging the federal government in accordance with his oath.
Finally, Sheriff Bartlett’s silence on Arpaio’s pardon is no surprise. He was Raney’s second pick to finish his term. He has since run and won — unopposed. Sheriff Bartlett has been all but invisible since taking office. He has said nothing to challenge the myths behind Black Lives Matter. He was silent on Constitutional Carry. He did fly above the radar once when he held his finger to the wind and spoke out in favor of outlawing bottle rockets. A firebrand for liberty, he is not.
Come 2020 Ada County needs to elect a Constitutional Sheriff.
[i] Heather MacDonald, Practical Thoughts on Immigration, Imprimus, February 2015.
[ii] Heather MacDonald, Practical Thoughts on Immigration, Imprimus, February 2015.