Equal Justice Under Law: Katrina Trumps Prop. 200

"I will be open to the considered views of my colleagues on the bench," Judge Roberts told the Senate Judiciary Committee and a packed hearing room on Capitol Hill. "And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes, and not to pitch or bat."

Mr. Roberts spoke to his deep respect for the rule of law, declaring: "I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes."

Mr. Roberts emphasized: It is the rule of law that gives greatness to the United States and differentiates our country from all others. It is the judiciary that safeguards the rights of all that resided within the United States.

As Mr. Roberts spoke, I thought of the chiseled words above the entrance of the United States Supreme Court, "Equal Justice Under Law."

Not just sometimes and for certain events but for all time and all events.

For all people in the United States.

Last week, the State of Arizona, with compassion and without hesitation, embraced people in need: the Hurricane Katrina victims. Arizona warmly welcomed people in need by declaring, "Nuestra casa es tu Casa."

With the first step on Arizona soil taken at Sky Harbor, "Nuestra casa es tu casa," became a violation of state law.

One may question how Arizona's humane gift to hundreds of Hurricane Katrina evacuees became a violation of state law. Least we forget, Prop. 200 made it a violation of state law to provide services to undocumented persons in need.

Judge Roberts using a baseball metaphor, spoke of the umpire calling out balls and strikes as the only mandate of a Supreme Court Justice. It does not matter who pitches or which team is up to bat, the rules used by the umpire are always the same.

Habeas Corpus would apply to a French citizen in the United States. Habeas Corpus equally applies to a undocumented Mexican citizen in the United States.

In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992, the court observed that the Supreme Court has "recognized the fact that the writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.' Harris v. Nelson, 394 U.S. 286, 290-91 (1969)." Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291.

The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-91 (1969).

Again, balls and strikes barks out the umpire. There are no other possible calls. There is no emergency that is an exception. Compassion is outside the box of consideration.

Lady Justice applies the rule of law providing the same protection or the same denial without regard to any circumstance or group of people.

When Hurricane Katrina was forecast to come ashore close to New Orleans, the City of New Orleans issued an evacuation order to all. Most left in haste literally scrambling for their lives but many remained behind. The category 4 hurricane tossed personal belongs including identity documents across the length of Louisiana.

At that frozen point in time, the Hurricane Katrina victims became literally undocumented with the only identification available being a badge provided by the Red Cross. A badge that included the non verified name of the victim.

Yet, the non verified name on the badge had value, for this was the ticket for a plane ride to Phoenix where Arizona had extended an invitation for assistance.

Arizona welcomed Hurricane Katrina evacuees, "Nuestra casa es su casa."

The unquestioned welcome was given to undocumented Hurricane Katrina evacuees.

While all of us undoubtedly support giving a helping hand to Katrina victims, Lady Justice's blindfold was blown away by a category 4 hurricane.

The welcome to Hurricane Katrina evacuees, "Nuestra casa es su casa," sadly, does not apply to undocumented Hispanics.

If the rule of law is the tenet of our U.S. Constitution, if a strike is a strike, then the State of Arizona violated Proposition 200 and in my estimation, nullified it.

One has to surmise that if "Nuestra casa es su casa" is a welcome only given to Katrina victims, and not to undocumented Hispanics, then the blatant truth is Prop. 200 is not about enforcing our borders but rather is rooted in anti-Hispanic sentiment.

Randy Pullen is one of the persons who stokes up the anti-Hispanic fire with emotional appeal.

According to Pullen, "The 'Spirit of Prop. 200' is to stop undocumented immigrants from Mexico coming to Arizona to take advantage of the services here. It's an emergency situation."

Pullen adds, "It was emotional appeal that became the basis for the approval of Prop. 200."

In this case, the emotional appeal was about illegal immigration, even though nothing in the law stated that.

This emotional appeal to enforce our borders is a red herring that masks the real reason for some wanting to stop the increase of the Hispanic population in Arizona because the balance of power will some day in the future tip from non Hispanic to Hispanic.

The time has come to re-address with the courts, the nullification of Proposition 200.

More importantly, the time has come to educate the court of public opinion, the contributions Hispanics make to Arizona that far out weigh the cost of services some undocumented are given.

A case in point is the U.S. Social Security tax paid by undocumented workers. Earnings recorded under bad Social Security numbers are place in an "earning suspense file" in hopes of eventually finding out to whom they belong to. Since 1986, the fund has grown to $200 billion and is used to subsidize Social Security.

To me, undocumented workers subsidizing Social Security has emotional appeal. Not smoke and mirrors but based on fact. Not a ball or strike but a homerun over the center field wall in anyone's book.

Jon Garrido, President

Arizona Law and Education Center (ALEC)