Federal Judge: Why Can't Arizona Be "Inhospitable" To Immigrants?

By Big Tent Democrat, Section Constitution
Posted on Fri Jul 23, 2010 at 02:44:45 PM EST
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A strange question for a judge to ask generally, but the concept of preemption may not be well understood by her:

"Why can't Arizona be as inhospitable as they wish to people who have entered or remained in the United States?" U.S. District Judge Susan Bolton asked in a pointed exchange with Deputy Solicitor General Edwin S. Kneedler. Her comment came during a rare federal court hearing in the Justice Department's lawsuit against Arizona and Gov. Jan Brewer (R).

Bolton [. . .] also questioned a core part of the Justice Department's argument that she should declare the law unconstitutional: that it is "preempted" by federal law because immigration enforcement is an exclusive federal prerogative. "How is there a preemption issue?" the judge asked. "I understand there may be other issues, but you're arguing preemption. Where is the preemption if everybody who is arrested for some crime has their immigration status checked?"

I am not sure what the judge's goal is with these questions, but they are very uninformed, and if serious (oftentimes judges ask questions socratically), demonstrate that this judge does not understand preemption.

Why can't Arizona "enforce" immigration laws unless the federal government authorizes such enforcement? Simply, the Constitution does not permit it. Immigration policy and enforcement is solely, by express provision of the Constitution (see also the Federalist Papers), the province of the federal government. This is not a close question. It is a slam dunk.

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Federal Judge: Why Can't Arizona Be "Inhospitable" To Immigrants? | 50 comments (50 topical)

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Devil's Advocate? (5.00 / 1) (#6)
by squeaky on Fri Jul 23, 2010 at 03:40:29 PM EST

It seems from my reading that the questions she asked are about the sectionss she is more than likely going to invalidate from the law.

During the hearings, Bolton made it clear that she considers SB 1070 not a statute in itself but rather a large combination of new laws and amended existing laws.
She ignored the portions of the law that weren't up for debate, such as restrictions on day laborers, but said she was considering whether to block all or part of certain key sections of the law. She steered the attorneys toward the sticking points in those sections.

The Arizona Republic:

Very likely (4.00 / 2) (#9)
by Big Tent Democrat on Fri Jul 23, 2010 at 03:42:58 PM EST

Frankly, non-lawyers generally have no clue how oral arguments work and what they might mean, particularly at the trial court.


: I agree with BTD's comment on (5.00 / 1) (#37)
by Peter G on Sat Jul 24, 2010 at 10:41:26 AM EST

not reading too much into the judge's questions during the in-court argument of a difficult case, and especially not reading too much into newspaper accounts of the judge's questions. The purpose of such questions is to explore the strengths and weaknesses of each side's position by asking each lawyer to address issues raised in the other side's previously-filed, written briefs that the judge does not feel were adequately addressed (or that even were ignored or overlooked) in the responsive brief, as well as any arguments the judge may have thought about that do not appear in the briefs at all. That said, I take BTD's remark that "non-lawyers generally have no clue" to be addressed primarily to the press, not to Squeaky herself.

it is possible (5.00 / 2) (#36)
by cpinva on Sat Jul 24, 2010 at 10:08:36 AM EST

that AZ has a huge illegal alien problem, with regards to massively increased criminal activity, though so far there seems little empirical data to support that claim. that being the case, they should have made a loud, public appeal to the federal government, to vastly increase the ICE resources devoted to the state's border areas. they didn't.

instead, they crafted their very own immigration statute, SB 1070, clearly violative of federal perogative in the area. the record indicates that the actual problems became acute during the bush administration, with a republican majority congress. yet, AZ made no effort to effectuate this legislation during that time. instead, it conveniently waited until a democrat was in the white house, and democrats controlled both houses.

were i a cynical sort, i would say this legislation is a transparently opportunistic effort to make the democrats look bad, just prior to the 2010 mid-terms. but i'm not, so i won't.

: AZ did make previous attempts to (none / 0) (#39)
by BTAL on Sat Jul 24, 2010 at 11:36:32 AM EST

deal with the illegal immigrant problem - and since you're playing the political card - it was Gov. Janet Napolitano who signed a broader bill into law.
This is not a new issue for AZ.

BTAL is winning this argument. (3.00 / 2) (#27)
by Gerald USN Ret on Fri Jul 23, 2010 at 09:33:31 PM EST

I am hearing "can't preempt," "can't Preempt..."
over and over, with the folks saying it just covering their eyes at the actual law (or actions to be done.)

If Arizona finds someone is illegal in the course of its State Law enforcement and hands them over to the Feds, and Obama doesn't want to enforce the laws of the US, then he can order his Federal Justice System to free those lost souls wandering around the USA, or he could use his powers as the President to grant them pardons and then they would be fine.

I think that the US Govt wants to act like it does on many an occasion, and cover its eyes, and ears, and mouth because of political reasons.

Easy to say then "what illegal alien problem?"

And I prefer that wording "illegal alien" as opposed to "immigrant" which should be reserved for folks that are following the law when coming to this country.

Background on Judge Bolton (1.00 / 1) (#34)
by jbindc on Sat Jul 24, 2010 at 08:32:02 AM EST

Here:

The federal judge who will be ruling on whether to block Arizona's new immigration law from taking effect is known as a thorough, efficient, intelligent and fair jurist.
U.S. District Judge Susan Bolton has earned that reputation during nearly a decade on the federal bench in Arizona and 11 years before that as a Superior Court judge in Maricopa County.
"I don't think that either party could ask for a better judge," said Dave Cole a law professor at the Phoenix School of Law and former