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.