July 29, 2010 - by Dan Miller

The doctrine of federal preemption, like overly expansive interpretations of the Commerce Clause under the reign of Good President Roosevelt II, has been taken too far. Judge Susan Bolton’s decision on Wednesday is just one more step along the path to total federal dominance over all aspects of life in the United States.

Rather than issue a preliminary injunction to prevent the Arizona immigration law from going into effect as scheduled, Judge Bolton should have dismissed the federal government’s action and based a later decision on the effects of the law as applied. Should the Arizona law be wrongly applied, in a constitutionally inappropriate manner, as Attorney General Holder and President Obama earlier opined it would be without bothering to read it, she could and should take action.

On July 28, U.S. District Judge Susan R. Bolton granted the federal government’s request for a preliminary injunction to block implementation on July 29 of Arizona’s new immigration law. Her thirty-six page opinion was based on the doctrine of federal preemption and may well be inconsistent with controlling Supreme Court precedent as argued here; it will almost certainly be appealed and may well be overturned, eventually. In the meantime, the Arizona immigration law has been eviscerated and the residents of Arizona will continued to be harmed by the abysmal enforcement failures of the federal government.

Although noting that the statute had been enacted “against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns,” Judge Bolton made no mention of the federal government’s failure to enforce its own laws and held that the “United States is likely to succeed on the merits” of its claim that federal law pre-empts those provisions of the law she enjoined. She also held that “the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections.” Evidently, she contemplated no irreparable harm to the citizens and other lawful residents of Arizona; being murdered, having one’s property “liberated,” and having areas declared too dangerous to enter apparently do not constitute irreparable harm in her view.

Judge Bolton found the second sentence in the following short paragraph, one of the most significant sections in the new law, unclear and therefore held it preempted:

For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or … law enforcement agency … in the enforcement of any other law or ordinance of a county, city or town of this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released. [Emphasis added.]

She interpreted the last sentence in the paragraph, independently of the first, to refer to any person arrested, whether pursuant to the immediately preceding sentences or otherwise; perhaps if a semicolon had been used instead of a period she might have interpreted the second sentence differently. She concluded that the second sentence applies to illegal aliens, legal aliens, and United States citizens alike, without regard to any reasonable suspicions as to status; all must be held until formal determination of immigration status. She rejected as illogical Arizona’s contention that:

[T]he Arizona Legislature could not have intended to compel Arizona’s law enforcement officers to determine and verify the immigration status of every single person arrested – even for United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country.

Judge Bolton also held that the express presumption of lawful presence, as raised by various documents such as an Arizona driver’s license established under Subsections 2(B) and 2(E) of the statute, obviously did not carry over to the last sentence. Hence, it seems that in Judge Bolton’s view a United States citizen with an Arizona driver’s license, a United States passport, and a United States birth certificate in his immediate possession, if arrested for a non-immigration related offense such as reckless driving, would have to be detained until his immigration/citizen status might be formally ascertained. This, she decided, would likely overburden the federal officials charged with making such determinations, thereby impeding them in the nonperformance of their duties. Common sense? What’s that? This was at best wrong and at worse perverse, as noted here. It probably doesn’t much matter, since she also struck down the first sentence of Section 1 of S.B. 1070, quoted above, as also unduly burdensome for our busy federal bureaucrats whose inaction caused Arizona to attempt to enforce the nation’s immigration laws in the first place.

Judge Bolton also struck down Section 3 of S.B. 1070, which makes it a state crime to violate federal alien registration requirements and therefore “stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration.” She also enjoined implementation of Arizona’s restrictions on employment of illegal aliens and on hiring them. She graciously left standing, however, the prohibitions against blocking roads to solicit employment and against blocking roads to hire people.

Judge Bolton also enjoined implementation of Section 6 of S.B. 1070, which provides that an officer may arrest a person without a warrant if he has probable cause (as distinguished from a mere reasonable suspicion) to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States.” This, she concluded, was far too complicated for normal Arizona law enforcement officers to understand and therefore to implement since it applies to offenses thought to have been committed in Arizona as well as elsewhere in the United States and seems to require knowledge of what constitutes crimes in other states and knowledge of whether they might also be crimes in Arizona as well as whether the offense might invoke deportation by the federal government. The latter would require a complex determination within the exclusive authority of busy federal officials, thereby overburdening them.

However, she did not enjoin the Arizona statute making it a criminal offense to:

[T]ransport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona.

This, she held, neither attempts to regulate who should or should not be admitted into the United States nor regulates the conditions under which legal entrants may remain in the United States. King Solomon, who offered to cut a baby in half to resolve a dispute between two women over its custody, might be proud, but I doubt it.

As noted here:

The only factually plausible objection to S.B. 1070’s document requirement and to the provision authorizing inquiries into an alien’s status is that Arizona may penalize someone for being in the country illegally whom the federal government intends to ignore. It is the effect of the law on illegal aliens, not on legal ones, that has most upset the Obama administration and illegal-alien advocates.

The laws of the United States, properly enforced, would accord greater importance to the rights and safety of citizens and legal immigrants, rather than of undocumented Democrats unlawfully present foreigners.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He lives in a rural area in Panama.

  It is my understanding that Brewer is having the bill shined up and pretty and is filing an appeal.   Brewer contends that she will take this to the Supreme Court.   Meanwhile more than a million has been donated to Arizona's efforts.   
  Meanwhile Obama is toying with the idea of granting amnesty to all undocumented workers through the Immigration dept.   By passing even his own Democrat Congress.   All used in essence to Black Mail the GOP and forcing them to sign some type of "middle ground" legislation to law that will in effect deflate the GOP stance that it's all or nothing when it comes to illegal immigration.
  I think its a Cowardace move on the President's part.   With ratings plummeting and local seats being won by Republican candidates he is in my eye,  trying to secure his votes with the only place still interested in hearing them.  The minority.     Putz.