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On Arizona and Immigration: Judge Ignores Rule of Law

Posted By Hans von Spakovsky and Jack Park On July 28, 2010 @ 5:12 pm In Legal | Comments Disabled

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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 [2] (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 [3] 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.


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URL to article: http://blog.heritage.org/2010/07/28/on-arizona-and-immigration-judge-ignores-rule-of-law/

URLs in this post:

[1] Image: http://www.foundry.org/wp-content/uploads/immigration.jpg

[2] enacted Senate Bill 1070: http://www.azleg.gov/alispdfs/council/SB1070-HB2162.PDF

[3] has temporarily blocked: http://www.politico.com/news/stories/0710/40346.html

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