LDS Judge Jay Bybee back in the headlines
Judge Jay S. Bybee
There’s been quite a bit of controversy over the recent Arizona law that makes it a state crime to be present in the U.S. without authorization. I didn’t see much of a Mormon connection to the law, since the LDS Church doesn’t take a position on immigration. But one of the drafters of the legislation, Arizona Senator Russell Pearce, is apparently Mormon. Some authors have even asserted that the Mormon Church’s missionary efforts might be hampered by the law, particularly among Latinos. I don’t know if that is true, but there is another Mormon connection that is more interesting, in my opinion. As opponents of the Arizona law gear up for a lawsuit challenging the statute, they are confronted with a 2002 memo from the Office of Legal Counsel at the Department of Justice. The memo was issued by none other than Jay S. Bybee.
Bybee gained national notoriety last year when his DoJ memo about “enhanced interrogation techniques” was released to the public. Bybee’s critics said he authorized torture and should be disbarred. (There was quite a discussion about this over at MormonLawyers.com last year, and I should mention that I do not support disbarring lawyers for such legal opinions, regardless of whether I disagree with the conclusions.) Meanwhile, Bybee was nominated to the Ninth Circuit Court of Appeal, and was subsequently cleared of any wrong-doing by the Office of Professional Responsibility. Judge Bybee’s name has mainly faded from public view, and since being confirmed to the Ninth Circuit, he has authored a number of significant court opinions.
Bybee’s immigration memo (see full text below) concluded that state officials have the “inherent authority” to arrest illegal immigrants for violation of federal laws. This was actually a reversal of a 1996 memo issued under the Clinton Administration. Bybee’s memo reads: “This Office’s 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken.” DoJ memos obviously don’t have the force of law, but they are still very persuasive, and proponents of the Arizona statute are already pointing to the memo as support for their position.
In fairness, as some commenters point out over on The Volokh Conspiracy, it isn’t clear that Jay Bybee actually wrote the 2002 inherent authority opinion, only that it was issued under him. But between Jay Bybee and Russell Pearce, it appears that Mormons have an unlikely role in both the Arizona law’s past and future.
