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  • On Arizona and Immigration: Judge Ignores Rule of Law

    As everyone knows, Arizona, chafed by the Federal government’s inability to control the flow of illegal immigrants into the State, enacted Senate Bill 1070 (PDF) in an effort to do something about the resulting collateral damage to it and its citizens. Now, a federal judge appointed by President Clinton, Susan Bolton, has temporarily blocked enforcement of portions of S.B. 1070, reasoning that those portions interfere with the Federal government’s system of immigration laws.

    Significantly, Judge Bolton rejected the demand by the Obama Justice Department that the entire law be struck down. In fact, the judge upheld twelve different provisions of the law, including a prohibition on Arizona officials limiting the enforcement of federal immigration laws and another that allows Arizona citizens to sue any state official that adopts a policy of restricting such enforcement. The judge also upheld parts of the law intended to stop human smuggling, such as a provision that makes it possible to impound vehicles used to transport or harbor unlawfully present aliens.

    Unfortunately, however, Judge Bolton (using very fallacious reasoning) did preliminarily block provisions (1) calling for Arizona law enforcement officials to verify the immigration status of individuals who are arrested when an officer has a reasonable suspicion that they are an illegal alien; (2) making it a state crime to violate federal alien registration requirements; (3) creating a crime for an illegal alien to solicit, apply for, or perform work; and (4) authorizing an arrest when there is probable cause to believe that an individual is removable from the U.S.

    Of course, to come to that conclusion, the judge had to torture the language of the Arizona statute, ignore federal law and precedent, and come to an illogical conclusion about the supposed burdens placed on the federal government by the Arizona law.

    For example, Section 2(B) of S.B. 1070 states very clearly that:

    For any lawful stop, detention or arrest made by [an Arizona] law enforcement official…in the enforcement of any other law or ordinance…where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable effort shall be made…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.

    This paragraph could not be clearer – the immigration status of individuals who have been arrested for some other crime will only be checked if the officer has a “reasonable suspicion” that they are an illegal alien. Yet the federal judge reads the second sentence of this paragraph without reference to the first as supposedly requiring that the immigration status of all arrestees must be determined, despite Arizona’s claims to the contrary. In other words, she completely ignores the first sentence and then claims that checking the immigration status of all arrestees would be an impermissible burden on the federal government.

    This reading of the Arizona statute is illogical and the judge’s refusal to defer to Arizona’s construction of its own law is legally improper and certainly unnecessary, except for an activist judge with an agenda. In 1997, the Supreme Court chastised the Ninth Circuit and an Arizona district court for their treatment of a limiting construction of a state law suggested by the Arizona Attorney General and the recommendation that the Arizona Supreme Court be asked for its opinion of the proper construction of state law. The Court unanimously said that the federal courts should ask, “Is this conflict really necessary? When anticipatory relief is sought in federal court against a state statute, respect for the States in our federal system calls for close consideration of that core question.” The Court also suggested that the opinion of a State’s Attorney General on a matter of state law was entitled to respect.

    Here, Judge Bolton failed to give the State the respect it was due on this issue. Indeed, it is strong evidence of an activist judge straining to find a way to stop a law that she does not like from a policy (not a legal) standpoint. It is also completely contrary to federal law that specifically requires federal officials to “respond to an inquiry by a…State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual.” (8 U.S.C. §1373). How can Judge Bolton rationally conclude that Arizona is placing an impermissible burden on the federal government to respond to citizenship verification requests when federal law mandates that the feds respond to such requests? The judge’s reasoning is foolish – she is treating the Obama administration’s enforcement priorities (or lack of enforcement priorities) as if they are federal law. Arizona’s law does not conflict with federal immigration law, although it may conflict with the Obama administration’s policies. But policy conflicts do not result in federal preemption. Judge Bolton’s reasoning also conflicts with a very recent First Circuit Court of Appeals decision, Estrada v. Rhode Island, that upheld the right of state law enforcement officers to check the immigration status of individuals detained for other reasons such as a traffic stop, as well as other precedents.

    The judge also temporarily halted Arizona’s attempt to make it a state crime for an alien to not carry alien registration papers despite the fact that under federal law ((8 U.S.C. § 1304), all aliens are required to “at all times carry with him and have in his personal possession any certificate of alien registration” issued by the federal government. Contrary to Judge Bolton’s view, there is no violation of the Constitution because a state has added state penalties on top of federal penalties for the same offense. Otherwise, it would be unlawful for states to punish possession of illegal drugs since that is already a federal offense. Unfortunately, this type of tortured reasoning is applied by the judge to other provisions of the Arizona law.

    Arizona should continue its court fight to implement all of the provisions of the Arizona law. The chances are very good as this case works its way up through the courts and eventually to the U.S. Supreme Court, that Arizona will win in the end. It is a battle well worth fighting and it is one that other states should join, particularly in the face of this administration’s refusal to take the steps necessary to secure our borders and protect our national security. In fact, if other states participate in this battle in other federal circuits, it is highly likely that they will get rulings directly conflicting with Judge Bolton’s erroneous decision. The Justice Department should be forced to fight as many states as possible on this issue.

    Posted in Legal [slideshow_deploy]

    49 Responses to On Arizona and Immigration: Judge Ignores Rule of Law

    1. G-Man, Chesapeake, V says:

      I want to publically thank Judge Bolton for infusing more passion into the Conservative movement by her poor decision. I was starting to sense that we were losing just a little of our momentum. Thanks to the recent ruling on Arizona’s LEGAL anti-ILLEGAL immigration law I now sense a “spring in my step.”

      This is just the kind of anti-American Government action (some have rightly called it soft-tyranny) that steels my resolve, and makes me more determined to fight to restore America to its Constitutional foundations! Sadly, we have plenty of politically (in)correct issues to keep our fires burning.

      Not to worry my freedom loving Americans, we will right this wrong too. It’s our country and its worth fighting for…WE are the cavalry! I look forward to seeing many of you folks on the Mall September 12th, then again on Election Day!

      Hoo-yah America,



    2. West Texan says:

      You'd think the usual procedure for Arizona peace officers is to determine an offender's normal residence, regardless if it's Arizona, another state or country. In either case it's reasonable to request some form of ID. Failing this and with reasonable suspicion, it's completely with-in their official capacity to contact the appropriate jurisdiction to clear said subject. So why are additional state laws needed to accomplish this?

      If anything, Obama's national security and immigration enforcement directorates should be on the hot seat.

    3. Billie says:

      If you ask me, loopholes galore. To state evidence that a person is legal, will be applied to EVERY ARREST! As the talking point "we are all immigrants" clearly distorts the actual definition. An immigrant is a person from one country, taking residence in another. NO WE ARE NOT ALL IMMIGRANTS. As the feds hide all work expected to do, what's the burden? the feds doing the job required of them?

      just a mention:

      (2) making it a state crime to violate federal alien registration requirements?

      Huh? How can a state do that when the federal government doesn't do the job required and changes their own rules when and as they see fit?

      (3) creating a crime for an illegal alien to solicit, apply for, or perform work… I don't understand? Do you mean creating a LAW? RULE?

      she completely ignores the first sentence and then claims that checking the immigration status of all arrestees would be an impermissible burden on the federal government…

      she's protecting the ongoing dereliction of the duties of the federal government while the good citizens of America and Arizona continue to be targeted for crime.

      So it seems it would be a burden for the OVERPAID federal government to do their job or just simply a job!

      Where's the racism obama proclaimed there is? Where?

    4. Cynthia, Hallsville, says:

      Not surprised a Dem appointee made these decisions. One wonders whether or not the trial is worth having – let's just go ahead and take it to the Supremes.

    5. RUDE RICHARD RENO, N says:

      Federal government’s system of immigration laws is not enforced by the federal government. Now they refuse to let states enforce them and protect their people?

    6. mbm7872 says:

      What about the infringements the federal government makes on our constitution. What about the activities conducted by congress that if I did, I would go to jail.

    7. William Rowe, Sand S says:

      I have no problem showing my identification when asked, nor should any legal resident or legal visitor. The judge is obviously a dumbass.

    8. Libby Christian, Geo says:

      I agree with this article. Arizona should continue the fight and take it all the way to the Supreme Court if necessary. I hope Governor Brewer will not give up because she is right. I am so disappointed in this ruling.

    9. Larry Boyd Marietta says:

      The Judge is in Bed with the Obama Administration , clearly !

    10. Ross Blomberg, Ingle says:

      If a person,municipality,county, or state is not allowed to defend itself because it is the Federal governments job and the Federal government will not do it's job are we to then just let it continue? I say not. Civil disobediance is in order. I did NOT say violence.

      If the Federal government does not have the man power to do their ,they do not have the manpower to stop Arazona ( or any other state) from protecting itself.

    11. Jim , Utah says:

      Now is the time for the militias to come forward and protect our borders.

    12. Norman Motland Anaco says:

      Another example of a shoddy "Justice" department. The Nation's laws only apply if it helps the Obama Regime…for now.

    13. Sherry , CA. says:

      This makes me sick to my stomach! Stand vigilant America! The Obama administraton has an agenda and it is up to all of us to stop it at the voting box.

      Lets send the message in November, the government works for us, the American people, if you fail to remember that in your arrogance Mr. Obama, you will be replaced.

    14. Travis, New York says:

      Thank You for the article and the plain english, common sense explanation. I have been following this battle and still can't believe there is one. Any way to get you guys on the legal team Haha!

      Thanks again


      American First

    15. Bonnie Keeler P.O.Bo says:

      Do you suppose, in what has become this Administrations usual fashion when he may not get what he wants, that he has resorted to either threats and intimidation or bribery? Just asking.

    16. William Hancock says:

      Mueller v. Mena was a unanimous Supreme Court decision that affirms that officers have the right to enquire about the immigration status of a lawfully detained person. Six of the nine justices who found this to be true are still on the Supreme Court so it is hard to see this being reversed.

      I predict that Judge Bolton may make her ruling permanent and the Ninth Circuit may uphold it. The Ninth Circuit has never had a problem handing down ridiculous opinions that are later overturned. When I lived in Alaska during the 90's (Alaska is part of the Ninth Circuit), their opinions were overturned by the Supreme Court about two thirds of the time.

      Bolton is just trying to buy time for Obama. She is hoping that while this works its way through the courts that the federal government will have some kind of "comprehensive" immigration reform which will give amnesty to illegals and make all of this moot. Her legal reason is absurd and her respect for precedent, non-existent. This law will eventually become established law and other states will follow. This issue is far from decided.

    17. LoisLane1951 says:

      Here's what we can do:

      OUT employers of illegal aliens all over the country. OUT them in the newspaper, on local talk radio…even leave leaflets on cars.

      Write corporate headquarters of employers of illegals and cc your e-mail to everyone on your list. Do this all over the country.

      Boycott employers of illegals and do so LOUDLY.

      It's time for every American to act.

      God Bless America while she still stands.

    18. Lydia Mesa AZ says:

      Keep in mind that the issue of questioning legal status has already been decided in a state court and by the SCOTUS!



    19. Don Throckmorton, Ge says:

      The federal government's attempt to trade the rights of the people Of Arizona, and therefore all Americans for political gain is deplorable. The exodus from Arizona by Illegal aliens following the bill's passage spoke volumes of its effectiveness. President Obama was remiss in his duty to secure our border, and now attempts to prevent the State from doing so. Is he now willing to be culpable for the crimes committed by foreign criminals in Arizona? I agree with the authors that s.b. 1070 should stand as written, but I worry that an impartial venue will be hard to find.

    20. Jay Diaz Sr., Smyrna says:

      Where dose it end? How far do the tentacles of these GD liberals reach? They are like a cancer destroying America. We must take America back. God save America!

    21. Bill tucson says:

      One of the reasons stated for the partial block was due to the strained relations with Mexico. last I checked Mexicos problems belonged to Mexico. if they cant feed their people and get a legitamate government that isnt controlled by the drug cartels, why does the USA have to pick up and take care of these people. I am tired of paying for the Leaches from Mexico. Send them all back.

    22. Thomas Watson- New O says:

      I have a large information that Judge Bolton must know. Please give me her mail address to send it at once. TW

    23. Prudie Potter, Annan says:

      If there are any further incidents of violence or murders in Arizona, I hope Judge Bolton will be held responsible.

    24. Carla Mettrick says:

      Thank you for informing us of the true nuances of the judges ruling. I pray Arizona will prevail at the Supreme Coart level. Just as a side note, as I listened to coverage of the trial on a local radio newscast, the reporter noted that the lawyer representing Arizona seemed to have a hard time presenting a clear argument for the law. He said the attorney seemed almost clueless when asked a pointed question about the law. Isn't it imperative to have representation in court that is strong on the aspects of the law and able to rebutt arguments against? How can this be remedied?

      Sincerely, Carla Mettrick

    25. Georgia Shively says:

      I applaud Gov. Brewer, she is trying to protect the State of Arizona & its people which is what the Administration is suspposed to do, but they are busy doing photo shoots, snubbing the Boy Scouts, campaigning the whole time. Obama doesn't know what to do, he is just a puppet for someone bigger who is telling him what to do. I pray for America becuase someone (Sheriffs, Police Officiers & Border Patrol) which we need to protect us from the enemy. Who is our enemy? We don't even know, so who is protecting us? We must as states protect ourselves from the gangs that are all over the states. It is a shame that it took a rancher that was killed & our govt didn't do anything to protect the people of the United State. Please Pray of America.

    26. Sammy says:

      For decades,I've watched the trucks drive up and down the highways and dusty dirt of Arizona. NOW I finally know what the "ICE" stands for. In Case we want to Enforce the law. Our tax dollars at work; or NOT.

    27. TJS, FL says:

      We need a constitutional amendment to remove the lifetime tenure of federal judges. Judges are making purely political decisions, so they must be subject to political elections. We need to make judges accountable, just like everyone else, or we will lose our republic to these liberal, constitution-violating tyrants.

    28. Don Harper, Lubbock, says:

      If it is OK for sanctuary cities to ignore federal immigration laws because the federal government ignores them, too, then it is not OK for Arizona to enforce federal immigration laws because the federal government does not enforce them.

      That does not make sense to me, but there is a kind of perverse consistency there.

    29. Jeanne Stotler, Wood says:

      Where is it permissable not to uphold the federal law?? Mexico would be up in arms if we butted inyto their gov't. and immigration laws. The fact that these people are taught from cradle that New Mexico, Southern Arizona, Texas ans Southern Calif. are really their lands is what the problem is. This was all settled in 1914 with what was called "Border Dispute" Regardless where you come from, Canada, Europe, Asia or So. Amer and Mex. you need papers. With this rulung can I not have my Dr. Lic. or not show it if stopped?? Dangerous ground this Judge is walking on, hope the appeal judge has more sense.

    30. Lloyd Scallan (New O says:

      A Bill Clinton federal appointee, under the direction of the Obama led federal DOJ. Any questions as to her ruling?

    31. ww in Colorado says:

      Our 'elected' officials are not listening to we the people anymore. Illegal means illegal! Let's get America back and quit spending money we don't have on people that don't want to speak the English language or play by the rules!

    32. Tim AZ says:

      This was not unexpected here in Arizona. You must understand that the regime can not continue to exist without votes from undocumented democrats in 2012. This is not the end we will continue creating new and innovative laws to protect the residents of the great State of Arizona. The question is what will other States do to protect themselves as the undocumented democrats move to other areas in the U.S. and bankrupt your states. There are a lot of legislatures in other states that are now relieved because this gives them an excuse not to have to act in the best interests of their constituents. Don't let them take comfort in this minor setback demand action from them. The states must act together to overwhelm the regime. Fight Obammunism with Obammunism.

    33. Steve Briscombe, San says:

      What does the law say regarding following an illegal court order? Do we have to follow the ruling if it is illegal? This article is excellent and truly identifies the illegality of Bolton's (I cannot say Judge) ruling.

    34. Crystal, Idaho says:

      I detest politicians asking for donations because I find it abhorrable that the one with the most money wins, but for the first time, I am sending a donation to Jan Brewer to help with this fight. The Obama administration is a joke. Vote them all out in Nov.!

    35. Jim Co says:

      When will enough be enough. Seems that at every turn the Constitution is usurped by a stupid judge or congerssman.

    36. Lee Silen says:

      I have copy of document 7277 in a lock box and I know that the real reason that our borders are left unsecure even after 911,is to impliment the global government.that is layed out in the above document. We obviously in the final stages.

      Ask youself, what possible reason can our government be so lackadaisical? Our government is not comprised of a bunch of idiots so they are simply acting our their plan.

      When I was stationed in Germany, the woman that I rented from, told about Hitlers rise to power. It was almost a mirror image to what we are experiencing in America today.

      Not to worry, I don't expect this to be published. BUT If it's not yet, illegal to say or write it, "God Bless America."


    37. MrShorty - Arizona says:

      I'm still confused as to why an American citizen cannot sue the Federal Government if they are harmed or injured by an illegal immigrant? Since it is a Constitutional requirement that the Federal Government protect its citizens from all enemies, foreign or domestic, that an illegal alien is not considered a foreigner. As the chief enforcement officer of the United States, President Obama has been derelict in his sworn duty and should be impeached.

    38. carol florida says:

      Since when are illegals, whether Mexican or any any other peoples allowed to be in this country without a passport? We need one to get into Mexico. Wow, I am amazed at the lack of concern of border state rights. Can we go to Canada to work-NO, and we need a passport there too. To those who have been out of work (2 years), let's get the judge to tell us what country will accept us, and give us a job.

    39. Carol,AZ says:

      Yes Az will take it to the next court.

      America must stand with us.

      If it goes to the Supreme Court .

      America must stand with AZ.

      Meanwhile over 500 bus loads of protestors have been dropped of in Metro PHX in front of the jails.

      This frenzy has been reported to be backed by union organizations.More bus laods are expected tomorrow.

      Some spinter groups are also religious based.

      In PHX last night 3 policemen were shot during an undercovered drug bust.

      One has sinced died.

      Six suspects shot and two have died.

      I want all of you to know that violent crime has not gone down in our cities here regardless of WHAT crap is being reported on the mainstream news media,

      Please support us any way you can form there and enforce your State's laws on all aspect of illegal immigration. 17 million unemployed Americas are depending on all of us .

      Thank you always for the donations , it has lighten our hearts for so many who have worked for months ot protect all citizens in the USA and will continue to do so with NO help comng from the FEDERAL GOV't to secure our borders..

    40. dannyroberts phoenix says:

      Judge Bolton rushed to an agenda driven judgement, and just made it harder for law enforcement to carry out their duties.she should be ashamed of what she did.

    41. Pingback: The Big Story: Taking sides as judge blocks the guts of Arizona law

    42. brad parson says:

      it is my understanding she ruled based in part on hines(1941). i think the important part of that decision is whether a state law in any way poses an impediment, roadblock or in some way interferes with the fed law as intended by congress. she blew it!

    43. Drew Page, IL says:

      I guess Judge Bolton feels that her "temporary" injunction, against some of the Arizona law, leaves her with the opportunity to say "I really didn't say the law was un-Constitutional".

      It's really a shame. He we have President Obama, the country's chief law enforcement officer and Atty. General Eric Holder, the attorney for the United States, both of whom swore to preserve, protect and defend the Constitution and both of them willfully refuse to enforce our immigration laws. We don't need immigration REFORM. We need immigration LAW ENFORCEMENT.

      It is painfully obvious that Mr. Obama and his Democrat supporters are going to push for general amnesty for the millions of illegal aliens in the U.S. they will try to call it REFORM, but it will be nothing more than amnesty, making a joke of our immigration laws and pandering to the hispanic vote.

    44. Norman Alander says:

      Interesting that Judges not follow the law, and interpret thier opinions as being better than the law. Does that mean that anyone can move into the home they own and live there without fear ;of the effect of breaking the law? Not in my house you don't. Just try it and see what I would do. Don't bet your life on it.

    45. John Caliornia says:

      The mexicans America seem to feel that they dont HAVE to carry an I.D. Everbody else Has to so whats their beef? I know, a lot of them don't have one!!!!

    46. Pingback: Federal Judge Ingores Provisions in Arizona's Law to Make Her Ruling | Hispanic Citizen

    47. dannyroberts Phoenix says:

      god bless all you good guys out there stay true to the cause,the cream always comes to the top, truth will prevail over this administration, the

      d o j is a corrupt organization and with obama at the helm, they are really starting to look like idiots.

    48. Pingback: Amnesty … It’s Baaack! - Whitley County Patriots

    49. Monty says:

      I agree with the comments by others. Judges are supposed to adminiter the law not skew it. Protect your rights, home, family. I'll keep my healthcare, money, guns and freedom. The individuals who voted this man in as president can have the "change". Unfortunately we all suffer.

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