Jay Bybee again

Jay Bybee, the supposed Nevadan on the U.S. Court of Appeals who wrote a Justice Department memo that enabled the use of torture by the United States, is back in the news for another memo. It demonstrates how shopping around for preferred legal opinions can be done. Bybee’s opinion overruled an early finding, and his opinion may now be overruled by a third opinion.

In 1996, the Office of Legal Counsel of the Justice Department issued a formal legal opinion concluding that states have the authority to enforce federal law only if they are empowered to do so by the federal government. On April 3, 2002, Bybee issued his new opinion. It read:

“[T]he authority to arrest for violation of federal law inheres in the states, subject only to preemption by federal law. … We concluded at that time [1996] that although the INA [Immigration and Naturalization Act?] does not preclude the state police from making arrests for violations of its criminal prosecutions, it does preclude them from arresting aliens on the basis of civil deportability. We now determine that our 1996 advice was mistaken. … We therefore do not believe that the authority of state police to make arrests for violation of federal law is limited to those instances in which they are exercising delegated federal power. We instead believe that such arrest authority inheres in the states’ status as sovereign entities.”

Bybee’s opinion, which was disclosed by court order in 2005, has undercut the Obama administration’s ability to do something about the Arizona law that empowers police to question those they suspect are illegal immigrants. Supporters of the law say they relied on the Bybee memo when they were drafting the Arizona law.