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Arizona vs. Obama, Round 1

Posted By Joseph Klein On July 29, 2010 @ 12:06 am In FrontPage | 35 Comments

The Obama administration wasted little time condemning Arizona’s recently passed immigration law, even launching a lawsuit to prevent it from going into effect. Now the White House has been handed its first major victory by a federal judge who has struck down key provisions of the Arizona law, setting up a showdown between a state beleaguered by illegal immigration and a federal government determined to prevent it from doing anything to address the problem.

On Wednesday, Federal District Court Judge Susan Bolton blocked key portions of Arizona’s law dealing with the tide of illegal immigrants swamping Arizona, known as S.B. 1070, or more formally the “Support Our Law Enforcement and Safe Neighborhoods Act.” She preliminarily enjoined the State of Arizona and its Governor Jan Brewer from enforcing the most significant provisions of S.B. 1070. Judge Bolton did not give the administration everything it wanted, declining to block the entire law from going into effect as the Justice Department had requested. But what she left standing is of little significance compared to what she gutted.

While this is only the first battle dealing with a preliminary injunction – appeals of her order and a trial on the merits of the statute are yet to come – Judge Bolton has framed the constitutional issue of federal preemption in such a way that the Obama administration will have the upper hand going into the next rounds.

Judge Bolton left alone such provisions as prohibiting Arizona officials, agencies, and political subdivisions from limiting enforcement of federal immigration laws and such non-controversial provisions as making it a crime to stop a motor vehicle to pick up day laborers and for day laborers to get in a motor vehicle if it impedes the normal movement of traffic.

More significant are the major provisions of S.B. 1070 that Judge Bolton blocked from being implemented. These include the law’s provisions requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped; requiring noncitizens to carry registration papers; authorizing the warrantless arrest of an illegal immigrant where there is probable cause to believe the person has committed a crime that would make them eligible for deportation; and making it a crime for illegal immigrants to seek, apply or perform work.

Without such provisions, the Arizona law will not accomplish what it was designed to do: reinforce enforcement of the federal immigration laws that were not being adequately enforced by the federal government. Judge Bolton ignored the practical realities that she had acknowledged Arizona was facing due to lax federal enforcement of these laws. Instead, she accepted the Obama administration’s theoretical argument “that the power to regulate immigration is vested exclusively with the federal government, and the provisions of S.B. 1070 are therefore preempted by federal law.”

In siding with the Obama administration, Judge Bolton also took a leap of faith. She accepted the administration’s argument that it was the federal government’s role to enforce immigration laws without considering that the current enforcement regime has been largely ineffective. Judge Bolton also misread the provision about the determination and verification of immigration status for someone stopped for an unrelated legal infraction whom the police had reason to suspect was an illegal immigrant. Without waiting to see how the law would have been actually enforced, she agreed with the Judge Department that “this section is preempted because it will result in the harassment of lawfully present aliens and will burden federal resources and impede federal enforcement and policy priorities.”

Judge Bolton assumed that it required Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested. Proceeding from that false assumption, she concluded that in addition to the high burdens of verification imposed on everyone involved, including immigration officials, “all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.”

In fact, the Arizona law provides discretion to law enforcement officers. After stopping or detaining someone for an unrelated violation of law, they would make a judgment as to whether reasonable suspicion existed to investigate their immigration status. Judge Bolton refused to read the entire provision as interdependent, deciding to split hairs and reaching a result that was contrary to the legislative intent.

Judge Bolton could have chosen to take a more balanced approach. Perhaps there were a few instances in the Arizona law that did go beyond the scope of federal law, such as criminalizing the very act of working that Congress had not made criminal. Congress, instead, decided to focus on the employers hiring illegal immigrants. However, Judge Bolton went much further and chose to ratify the status quo. Indeed, in the concluding portion of her opinion, she noted that “even though Arizona’s interests may be consistent with” those of the federal government, “it is not in the public interest for Arizona to enforce” the law. Ultimately, she argued that “preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced.” (emphasis added)

Arizonans are unlikely to agree. For citizens of the state and other border states, the status quo means more killings, kidnappings, drug-running, robberies, and burdens on scarce state resources while the federal government continues to look the other way.

Predictably, the Obama administration and advocates for illegal immigrants were very happy with the ruling. Arizona Governor Jan Brewer, on the other hand, said that the ruling is merely “a temporary bump in the road” and vowed to appeal, which the law permits as a matter of right. Expect an expedited appeal to the U.S. 9th Circuit Court and, depending on what happens there, an eventual hearing before the Supreme Court. Although the Obama has landed the first blow, the battle to crack down on illegal immigration is not yet over.


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