Arizona court enjoins the main provisions of S.B. 1070
Wed July 28, 2010 8:54 pm

The outcome of the Arizona immigration lawsuit was inevitable. The Arizona statute is preempted by federal law and by the Supremacy Clause of the U.S. Constitution. From the Court’s opinion:

“The United States asserts that mandatory determination of immigration status for all arrestees “conflicts with federal law because it necessarily imposes substantial burdens on lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country – rules designed to ensure ‘our traditional policy of not treating aliens as a thing apart.’” (Plaintiff’s’s Motion at 26, quoting Hines v. Davidowitz, 312 U.S. 52, 73 (1941)).)”

I wrote about the Hines case in an earlier post about the Arizona lawsuit shortly after the government filed its complaint. In that post, I cited Erwin Chemerinsky, an expert in constitutional law and the dean of the law school at the University of California, Irvine, who told Yahoo! News that federal law clearly preempts the Arizona measure in his view, rendering the state law unconstitutional: Said Chemerisnky: “In Hines, the Supreme Court ruled that by its adoption of a comprehensive, integrated scheme for regulation of aliens — including its 1940 registration act — Congress has precluded state action like that taken by Pennsylvania.” This was not a close case. It was over when the Department of Justice filed its lawsuit.

This is another key paragraph in the opinion:

If enforcement of the portions of S.B. 1070 for which the Court finds a likelihood of preemption is not enjoined, 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.

The legal battle is not over. After the injunction is lifted, the case will go to trial in Judge Bolton’s court. The decision is likely to go against the state of Arizona. Governor Brewer could still insist upon appealing the case to the Ninth Circuit, though the chance of success is not great. Meanwhile, the political battle is just beginning. I wrote in that earlier post, “My belief is that the Obama Administration will win the battle but lose the war. That is, the law will be found to be unconstitutional, but the loss will be pinned on Obama and the Democrats generally.” It will be interesting to see whether Leo Berman and Debbie Riddle continue to push immigration legislation in the face of an adverse court decision and a governor who doesn’t support the legislation.

Add Dan Patrick to the Berman/Riddle list. He issued this statement today:

“I am disappointed that the federal government has forced Arizona between a rock and a hard place,” said Senator Dan Patrick. “Not only is this administration unwilling to secure our southern border, but now we know that they will prevent states from protecting themselves.”

“The 2011 legislative session gives Texas a chance to lead and pass laws that protect our citizens and our economy,” said Senator Patrick. “While the border is the federal government’s responsibility, it’s our problem.”

–Let’s get this right. The federal government didn’t force Arizona to do anything. Arizona, of its own volition, challenged the federal government’s preemption of immigration policy. A few provisions in the act survived judicial scrutiny. Most did not. If Texas goes down that path, it is just wasting time and money.

Riddle also issued a statement:

“The safety and security of the people of Arizona suffered a major setback today with Judge Bolton’s injunction. In essence, Judge Bolton has told Arizona’s citizens they are necessarily at the mercy of the federal government, and may not act in their own defense against the myriad negative consequences forced upon them by an onslaught of illegal immigration. I am saddened and outraged on behalf of Arizona, and I am hopeful that decisions from subsequent courts will be more favorable to the American people as this appeal progresses through the system.

–Judge Bolton did not tell Arizona’s citizens that they are necessarily at the mercy of the federal government. It told them that they are necessarily at the mercy of the Supremacy Clause of the United States Constitution.–pb

Riddle continues: In the meantime, nothing about this ruling impacts my plans to move forward with a bill that is substantially similar to HB 49, which I filed last session in the Texas Legislature, and which would make it possible for state and local law enforcement to arrest those who have been confirmed to have entered illegally into Texas in violation of federal immigration law. Decisions by the United States District Court of Arizona are not binding in Texas. Furthermore, there are significant differences between my bill and Arizona’s SB 1070.

–Where Arizona most blatantly preempted federal law is by making it a crime to be in the state without documentation. The criminalization of undocumented status is a clear preemption of federal law–pb

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