Arizona Immigration Decision (Andy McCarthy dissects Bolton decision-not good.)

National Review ^ | July 28, 2010 | Andy McCarthy

[greyfoxx39]

Wednesday, July 28, 2010

Arizona Immigration Decision   [Andy McCarthy]

On a quick read, the federal court's issuance of a temporary injunction against enforcement of the major provisions of the Arizona immigration law appears specious.

In essence, Judge Susan Bolton bought the Justice Department's preemption argument — i.e., the claim that the federal government has broad and exclusive authority to regulate immigration, and therefore that any state measure that is inconsistent with federal law is invalid. The Arizona law is completely consistent with federal law. The judge, however, twisted to concept of federal law into federal enforcement practices (or, as it happens, lack thereof). In effect, the court is saying that if the feds refuse to enforce the law the states can't do it either because doing so would transgress the federal policy of non-enforcement ... which is nuts.

The judge also employs a cute bit of sleight-of-hand. She repeatedly invokes a 1941 case, Hines v. Davidowitz, in which the Supreme Court struck down a state alien-registration statute. In Hines, the high court reasoned that the federal government had traditionally followed a policy of not treating aliens as "a thing apart," and that Congress had therefore "manifested a purpose ... to protect the liberties of law-abiding aliens through one uniform national system" that would not unduly subject them to "inquisitorial practices and police surveillance." But the Arizona law is not directed at law-abiding aliens in order to identify them as foreigners and subject them, on that basis, to police attention. It is directed at arrested aliens who are in custody because they have violated the law. And it is not requiring them to register with the state; it is requiring proof that they have properly registered with the federal government — something a sensible federal government would want to encourage.

Judge Bolton proceeds from this misapplication of Hines to the absurd conclusion that Arizona can't ask the federal government for verification of the immigration status of arrestees — even though federal law prohibits the said arrestees from being in the country unless they have legal status — because that would tremendously burden the feds, which in turn would make the arrestees wait while their status is being checked, which would result in the alien arrestees being treated like "a thing apart."

The ruling ignores that, in the much later case of Plyler v. Doe (1982), the Supreme Court has emphasized that

Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State's economy generally, or the State's ability to provide some important service. Despite the exclusive federal control of this Nation's borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns. [Emphasis added.]

Furthermore, as Matt Mayer of the Heritage Foundation notes, the Fifth Circuit federal appeals court similarly held in Lynch v. Cannatella (1987) that "No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation's immigration laws."

However this ruling came out, it was only going to be the first round. Appeal is certain. But the gleeful Left may want to put away the party hats. This decision is going to anger most of the country. The upshot of it is to tell Americans that if they want the immigration laws enforced, they are going to need a president willing to do it, a Congress willing to make clear that the federal government has no interest in preempting state enforcement, and the selection of judges who will not invent novel legal theories to frustrate enforcement. They are not going to get that from the Obama/Reid/Pelosi Democrats. 

[wku man]

Can't count on the jury box or the ballot box, and the soap box is only preaching to the choir these days. We're almost out of options.

Scouts Out! Cavalry Ho!

[Regulator]

Her comments about "overwhelming" the federal immigration enforcement bureaucracy is absurd. It merely points out the severity of the problem. Her claim amounts to the assertion that the problem is so bad, the federal government simply can't cope with it. So Arizona better not try.

What this has to do with the "Constitutionality" of the law God only knows. It is nothing more than political muttering, better known as Legislating from the Bench.

Today we have seen one woman overthrow the duly made laws of the Legislature of the State of Arizona, based on her own prejudices and chatty opinions.

[Oldpuppymax]

TRANSLATION: A Clinton appointee (probably APPROVED by Orrin Hatch, Lindsey Graham, etc) simply ignored/misrepresented/prostituted the law. What a shock!!

[moehoward]

" Just do it anyway."

Arpio has been doing for years.

[Tarpon]

Yeah, I don’t see why Brewer doesn’t implement 287-G statewide ... Surely it would cost less to detain than it would to pay the moochers there free services.

[Political Junkie Too]

Constitutionally, I only see where Congress has the power to define "uniform rules of naturalization." It doesn't say anything about enforcement of the law.

Congress can define the rules to become a citizen for all states, but the states still have the power of law enforcement.

I also don't buy the argument that a federal decision to not enforce the law is binding on states to not enforce a law. This judge is saying that the feds affirmatively decided to ignore a law, and therefore that is a decision that the states have to abide, because states forcing the feds to live up to their laws takes away the power of feds to ignore their own laws after they are passed?

She's nuts...

-PJ

[Herbster]

I could not agree anymore, fonebone.

FUBO!

The war has begun.

[moehoward]

I don’t know. AZ has been stuck with millions in shortages because the feds don’t reimburse. I still say attrition is the way out of this mess. Make them want to leave the same way they got here. Threaten this law or that. Cops can still impound cars and detain Illegals with or without 1070.

[garbanzo]

feds refuse to enforce the law

US Constitution, Article II Section 3
"[the President] shall take Care that the Laws be faithfully executed..."

Grounds for impeachment.

[JohnBovenmyer]

>Susie Q is a Klintoon (x42) appointee...

And, I think, also a McCain comfirmee...

[greyfoxx39]

The author of the law stated that it was a temporary injunction and Bolton allowed the portion of the bill that requires agencies to enforce federal immigration law to the fullest extent to remain in place.

There will be a lot of adjusting going on until SCOTUS settles the matter.

[TLI]

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

.

[Godwin1]

Another vile, despicable, undemocratic decision from a cheap, agenda-driven political hack in judge's robes. In the hands of those who want a divided, balkanized, hyphenated America, this government is lurching inexorably towards illegitimacy. God help us!

[Regulator]

She's nuts...

Read her bio. Third rate attorney from lightweight schools.

A political hack doing nothing more than the bidding of her masters.

[editor-surveyor]

Judge Susan Bolton must be removed from the court. This decision is beyond outrageous.
.

[editor-surveyor]

“I can see November from Arizona.”

.
And I can see an Alaskan November in 2012!

Only one candidate has spoken out in this direction (so far)
.

[Waco]

It looks like it’s gettinhg to where 0’b and his judges can’t get together as to which foot to shuffle off on fist.

[eggman]

You can't expect a judge to burden the federal government to do the job it is supposed to be doing. Their too busy writing laws that give them a whole set of new powers which they can selectively choose to enforce.

[Regulator]

Funny. Those were the very words I was thinking of when I saw this.

My ancestors rebelled against a king over less.

[tet68]

Although the State has no direct interest in controlling entry into this country,

Any state that has a border against a foreign country
or boundry should have a direct interest, if for nothing
else the protection of their own citizens.

If nothing else they could set their own STATE border
INSIDE the national one, call it an agricultural inspection zone etx.

I don’t see the current supremes backing the courts
reasoning but you never know.