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.”
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