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Arizona Immigration Law: Legal Path Is Blocked, So Political One Must Be Found

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For those who support Arizona's controversial new immigration measure, there is very little in U.S. District Judge Susan Bolton's big ruling Wednesday that is encouraging.

Yes, the veteran judge gave the state the go-ahead to proceed with some of its new ideas -- there was some tinkering of the human smuggling provision, for example, and it's now formally a crime in Arizona to pick up a day laborer in a car. And no, she didn't buy the Commerce Clause argument offered up by the Justice Department as a justification for blocking the law, pending a full judicial review. Bolton even helpfully suggested at one point in her ruling how the state legislature could revise one particularly ambiguous provision of SB 1070, as the Arizona law is known, to ensure a better reception on future judicial review.

Here is just one example of her relatively gentle treatment of Arizona's position. She wrote that if enforcement of certain portions of the law is not blocked, "the United States is likely to suffer irreparable harm. This is so because the federal government's ability to enforce its policies and achieve its objectives will be undermined by the state's enforcement of statutes that interfere with federal law, even if the Court were to conclude that the state statutes have substantially the same goals as federal law."

Judge Susan BoltonBut otherwise, and almost all down the line, Bolton accepted the premise of the federal government's argument: No state can unilaterally impose dramatic burdens on federal immigration resources and priorities without the express, written consent of the federal government. By enjoining the most onerous provisions of the Arizona law, and by predicting that there was a substantial "likelihood of success on the merits" of the Justice Department's challenge to SB 1070, she has laid down a marker that Arizona will have a hard time picking up as the case now wends it way up to the federal appeals court level.

For now, Arizona must shelve its plans to require a check of immigration status for anyone stopped by police under reasonable suspicion of unlawful presence in the state. A provision that made it a state crime to violate federal immigration registration laws also is on hold. And unlawful immigrants in Arizona can still seek work there without being charged with a crime. In other words, the provisions everyone was talking about and that brought so much attention to the immigration issue are now in limbo and unlikely to ever see the light of day.

Judge Bolton put it very clearly near the end of her 36-page ruling:

"Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new [law]. By enforcing this statute, Arizona would impose a 'distinct, unusual and extraordinary' burden on legal resident aliens that only the federal government has the authority to impose."

But there are limits to the significance of Wednesday's developments. For example, Bolton's ruling has no precedential value. Federal judges in other states are free to ignore it. And supporters of these types of provisions in other states now at least have a guidepost to help them craft legislation that might just make their efforts more palatable to the judiciary. The same is true for provisions of the Arizona law that Bolton allowed to take effect at midnight Thursday.

Arizona promised an "expedited appeal" to the 9th U.S. Circuit Court of Appeals, and I suppose it's possible that the federal appeals court will overturn Bolton's ruling. But I wouldn't bet on it. Nor would I bet on the United States Supreme Court getting involved at this early stage of the case. It is much more likely that the 9th Circuit will affirm Bolton's ruling, the Supreme Court won't intervene, and the dispute will continue toward some sort of trial. It's a process that likely will take years and generate no small amount of frustration (not to mention attorneys fees for Arizona) before it's through.

Which is why, perhaps, the most striking development Wednesday -- most legal observers had predicted that the Arizona law would be blocked -- was the reaction to it by Arizona Gov. Jan Brewer. She said: "The bottom line is we've known all along that it is the responsibility of the feds and they haven't done their job, so we were going to help them do that." It's not sworn testimony but perhaps it's an overture to the White House and Congress to reach a political resolution here. And right now a sensible political resolution ought to look really good to all of the parties involved.

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the justice dept. obviously attempting to press the will of Obama white house and please the boss has shirked its duty to enforce the terms of the US constitution by claiming that the Arizona law is unconstitutional. The constitution provides in article IV,section4 that the U.S. shall protect every state from invasion. Websters new international pocket dictionary defines invasion as encroachment as by an act of intrusion or trespass WHO' runnin this country?

November 11 2010 at 1:00 PM Report abuse rate up rate down Reply
AZ Stang

I hope the publicity has forced Washington to acknowledge that there is a HUGE illegal alien problem. It will take a combination of things to solve (and attrition is the only reasonable way). "Silent raids" that are being done already work very well, but the illegals are still here. Enforcing E-verify will work if it is enforced. Secuing the border will help, and I don't mean Obama sending 500 people to WATCH illegals come in.

August 01 2010 at 3:56 PM Report abuse +9 rate up rate down Reply

I think everyone (the President, politicians, judicial and bleeding hearts)involved in the controversey over Arizona's immigration law should get a copy of the immigration policy of Mexico and read it very carefully and see how outraged every citizen of the United States should be. We should apply those same laws in the United States. Quid Pro Quid! In English, this means this for that.

As far the illegals in the country saying they want a "better life", I say get legally.

July 30 2010 at 11:43 AM Report abuse +20 rate up rate down Reply
1 reply to tyggersmoke's comment
AZ Stang

Axtually, it's quid pro quo.

August 01 2010 at 3:40 PM Report abuse -1 rate up rate down Reply

Why does a Federal judge reject help enforcing Federal law?
Why does a Federal judge condone refusal of the Federal government to enforce laws protecting its citizens and sovereignty?
I do not "get" it. When I go to Mexico, I must produce proof of citizenship and legal entry on demand. What is the problem?

July 29 2010 at 8:31 PM Report abuse +21 rate up rate down Reply

HELLO... ILLEGAL IMMIGRANTS are just that... ILLEGAL! This isn't about race, Latino's... It is about upholding the LAWS AGAINST ILLEGAL ENTRY into this country! If the immigrants would have gone through the NECESSARY CHANNELS to enter this country LEGALLY, the US GOVERNMENT, AND ARIZONA, OR ANY OTHER STATE, LIKE TEXAS, ETC. would welcome them into the United States as LEGAL IMMIGRANTS...

THIS IS QUITE SIMPLE... ILLEGAL IMMIGRATION IS AGAINST THE LAW!!! The immigration laws are in place to PROTECT UNITED STATES CITIZENS WHO LIVE HERE LEGALLY and WORK HARD, AND PAY TAXES. We, as true American citizens have certain priviliges protected by the Constitution of the United States...

Should illegal aliens be allowed to SNEAK across any border into the United States and claim these protected rights as their own without applying for United States Legal Immigration Status??? NOOOOOO!!!!!

DON'T CALL THIS A RACIST ISSUE!! It is only about protecting our citizens, our rights, our government, our property, our economy and our country!!


It is a fact that countless illegal immmigrants have jobs now that many Americans would and SHOULD have, but these illegal immigrants get hired for much less pay (many times in cash so it can't be traced), so employers are thrilled to be able to hire them... PLUS THeir children SOMEHOW GET TO BE ENROLLED IN OUR PUBLIC SCHOOLS AND RECEIVE FREE MEALS, AND MANY OTHER BENEFITS that THEY ARE NOT ENTITLED to.

Let's keep this simple and recognize that ILLEGAL immigrants of any kind (not just Latinos, but anyone who has entered this country without US permission) need to be caught and DEPORTED TO THE COUNTRY THEY came from with any children they might have had while living here illegally!

We need STRICT LEGAL IMMIGRATION LAWS, AND strict enforcement of these very important laws, if our country is going to survive...

July 29 2010 at 8:10 PM Report abuse +23 rate up rate down Reply

The only people who are against this law are illegals and people who hire illegals for cheap labor. Perhaps some legals who feel it will be an inconvenience to them, but I would think they would be willing to go through it to help this country that they work hard to live in. As far as I'm concerned, this just proves that the federal gov't doesn't actually care about the safety of our country. Yes, these people are dangerous. For our economy and safety. They bring diseases into this country, not to mention commit crime. Ever hear about the case where that guy tried to scare illegals off his property by shooting a gun in the air and warning them to leave? They killed him. The illegals ganged up on him and killed him on HIS OWN LAND.

July 29 2010 at 6:13 PM Report abuse +19 rate up rate down Reply
1 reply to Nicole's comment
AZ Stang

Don't forget about immigration attorneys, who exploit their illegal status for money. Don't forget about the cartels, who use them as mules. Don't forget about the families committing welfare fraud, the employment fraud, identity theft and tax fraud. There's a whole underground economy that depends on the cash flow. That's why your and my taxes keep going up.

August 01 2010 at 3:49 PM Report abuse +8 rate up rate down Reply

Juja144, you are so misguided. There are many flaws in your argument. First, you do realize to quote Pres. Roosevelt you are, in essence, supporting this bill?

2."immigrant who comes here in good faith becomes an American and assimilates himself to us" Two key points, BECOMES an American and assimilates. Illegals do neither.
3."becoming in every facet an American, and nothing but an American..." Why do Mexicans celebrate MEXICO'S Independence Day? Why do they celebrate Cinco de Mayo? IF they are Americans.....
4."There can be no divided allegiance here." There is none, they have NO ALLEGIANCE TO AMERICA.
5."is an American, but something else also, isn't an American at all" I guess this is where the Mexican-American, Latin-American, African-American comes in.
6."We have room for but one flag, the American flag... " Is that why I see the Mexican flag being flown higher than America's which is in violation of yet another Federal law?
7."We have room for but one language here, and that is the English language" Is this why our Government papers are in Spanish?
8."but one sole loyalty and that is a loyalty to the American people." See above reasonings.
Pres. Roosevelt saw this invasion coming a long time ago. What an extremely appropriate quote to support the need for this law.

July 29 2010 at 6:13 PM Report abuse +14 rate up rate down Reply
James Lawrence

I think that the judge needs to be replaced. Vote Jan Brewer for president 2012

July 29 2010 at 4:55 PM Report abuse +21 rate up rate down Reply

This makes me sick. Its already a federal law. So its not even new! Let states help do the job that the federal government is too stupid to do!

July 29 2010 at 4:17 PM Report abuse +20 rate up rate down Reply

This ruling is just outrageous! Is there no judge in this country who favors the rule of law? It seems more fashionable to be a judicial activist.

July 29 2010 at 3:39 PM Report abuse +18 rate up rate down Reply
1 reply to Goldenbear's comment

They all have a plan... the more illegals that they get in America the more votes they get come election time..

July 29 2010 at 3:44 PM Report abuse +19 rate up rate down Reply

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