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

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.

Speaking for me only

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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

    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 Maricopa County Superior Court judge. "She is very deliberative, very reflective, runs a very tight ship in the courtroom. Very detached, objective, good at applying the law."


    The consensus among members of the legal community interviewed for this story is that she's the right person to have making such an important decision.

    "She's very smart, very well prepared, very quick to cut to the core of things," said Robert Bartels, an Arizona State University law professor. "She's a terrific administrator. She just really gets things done quickly, but still well."

    Lawyers are happy when they draw Bolton as the judge for their cases because they know they'll get a fair shake, said Mary Jo O'Neill, regional attorney for the Equal Employment Opportunity Commission's Phoenix office, who brings about five cases a year before Bolton.

    "You never worry that there is going to be any bias. You won't hear that about every judge," O'Neill said.

    Some other cases she's ruled on:

    * January 2010: Rules that Arizona cannot legally bar residents of other states from helping a political party get on the ballot here, rejecting arguments by Secretary of State Ken Bennett that allowing only Arizona residents to circulate these political petitions is necessary to prevent fraud. The decision was considered a victory for the Green Party.

    • February 2008: Upheld a designation of critical habitat in Arizona, Utah, Colorado and New Mexico for the Mexican spotted owl despite an effort by the Arizona Cattle Growers' Association to overturn it.

    • February 2002: Sentenced a smuggler to 16 years in prison for leading 14 illegal immigrants to their deaths in the desert between Yuma and Ajo.

    • 2002: Ruled that Border Patrol officials had legal immunity and couldn't be sued for their part in a 1997 immigrant roundup that led to 430 arrests and drew complaints that Hispanics who were U.S. citizens were harassed because of their appearance.

    • 2000: Struck from the ballot a land-preservation proposal advanced by the Arizona Legislature that was a bid to counter a similar proposal by environmentalists that remained on the ballot. Bolton said the Legislature's proposal violated a state constitutional requirement that ballot measures cannot cover more than one subject. Critics called Bolton an activist judge, and accused her of working with the environmentalists to torpedo the Legislature's option.

    OTOH (none / 0) (#1)
    by nyjets on Fri Jul 23, 2010 at 03:06:04 PM EST
    If the state can easily determine whether or not someone is an  'undocumented' immgrants, perhaps they should check out a person after he or she is arrested.
    I mean, if someone is present in this country illegally, does it matter who determines this fact.

    Not the issue (5.00 / 2) (#2)
    by Big Tent Democrat on Fri Jul 23, 2010 at 03:18:00 PM EST
    Everyone can have an opinion on the best way to make and enforce immigration policy, but the exclusive power lies with the federal government.

    The issue is simple.


    In some ways this makes no sense (none / 0) (#16)
    by nyjets on Fri Jul 23, 2010 at 04:35:45 PM EST
    If the state determines that someone is an 'undocumented' immigrant,they violated federal law. Hence it should make sense that the state can hand them over to the federal government.
    To me, this should be common sense.

    You're missing BTD's point ... (5.00 / 3) (#38)
    by Peter G on Sat Jul 24, 2010 at 10:54:36 AM EST
    which is valid and correct.  No State, ever, can "easily determine" -- or "determine" at all -- "whether or not someone is an  'undocumented' immigrant."  The state has no tribunal, no process, and no authority to make any such determination.  Only the federal government can do that.  U.S. Const., Art. I, sec. 8, cl. 4. (grant of authority to Congress); see also Art. I, sec. 10 (barring states from all sorts of foreign-relations-related powers).  So for the state to claim the authority to detain someone until that question is resolved (among other things this law says Arizona can do) -- not someone wanted on a federal warrant, which is another matter, but someone whose status a local cop deems uncertain -- is unconstitutional.

    I do not think that is true (5.00 / 1) (#44)
    by nyjets on Sat Jul 24, 2010 at 03:50:17 PM EST
    First of all most people can deterine there are a citizens. Either via driver license or birth certifcate.
    Furthermore, all the state has to do is run the person name via the federal government and see if the person is living in this country illegally.
    I do not think it is all that difficult.

    I'm not a lawyer, but I do understand English (5.00 / 1) (#45)
    by cymro on Sat Jul 24, 2010 at 07:46:06 PM EST
    If a state has to "run the person(s) name via the federal government and see if the person is living in this country illegally" then the state is not making the determination, the Federal government is.

    As to your other suggestions, how does a birth certificate help? Every legal immigrant and legal visitor to the US has a foreign birth certificate.

    And how does a driver's license help? Can't a temporary resident can get a driver's license, and then immigrate legally? If so, how can the state determine that a person did not become a citizen or a legal resident after they got the driver's license?  


    A driver's license may not help (none / 0) (#49)
    by Jack E Lope on Mon Jul 26, 2010 at 01:58:04 AM EST
    ...if it's from Utah or New Mexico.  

    Arizona's DMV does not accept Utah or New Mexico driver's licenses as acceptable proof of legal residence (plus those of some other states that don't border Arizona), so we can expect that those licenses will not meet the burden of proof that Arizona's new law imposes.


    How do these SCOTUS rulings come to bear? (none / 0) (#3)
    by BTAL on Fri Jul 23, 2010 at 03:28:02 PM EST
    Curious and attempting to get smarter.

    PENNSYLVANIA V. NELSON, 350 U. S. 497 (1956)

    Neither does it limit the right of the State to protect itself at any time against sabotage or attempted violence of all kinds. [Footnote 8] Nor does it prevent the State from prosecuting where the same act constitutes both a federal offense and a state offense under the police power, as was done in Fox v. Ohio,

    FOX V. STATE OF OHIO, 46 U. S. 410 (1847)

    The two offenses of counterfeiting the coin and passing counterfeit money are essentially different in their characters. The former is an offense directly against the government, by which individuals may be affected; the latter is a private wrong, by which the government may be remotely, if it will in any degree, be reached.

    The relevance of your second case (5.00 / 2) (#4)
    by Big Tent Democrat on Fri Jul 23, 2010 at 03:33:59 PM EST
    is not clear to me.

    The first is easy - the Constitution grants the federal government the EXCLUSIVE power over immigration policy and enforcement. Their is no dual sovereignty regarding immigration.

    Indeed, to make the point even clearer, the federal government can not deputize the states to enforce the immigration laws, states can do this voluntarily if requested and authorized by the federal government. See Printz.

    By the smae token, states simply have no power to decide on their own to enforce immigration law. The power lies exclusively with the federal government.

    This is an easy question.


    The first was relating (none / 0) (#5)
    by BTAL on Fri Jul 23, 2010 at 03:39:43 PM EST
    to the rights of states to protect themselves, hence, that specific quotation.

    The second is in relation to the separation of federal (counterfeiting of currency) vs the act of passing counterfeit currency which impacts/damages/threatens the state's citizenry.  Local LE arrest people for passing counterfeit money but also hand them over to the feds for possible counterfeiting charges, without asking for permission to do so.  Are they enforcing federal counterfeiting laws by those actions?


    States can not enforce federal laws (none / 0) (#7)
    by Big Tent Democrat on Fri Jul 23, 2010 at 03:41:25 PM EST
    without the authorization of the federal government.

    I could very well be wrong but (none / 0) (#10)
    by BTAL on Fri Jul 23, 2010 at 03:49:26 PM EST
    IIRC, the AZ LEs will not be charging anyone with federal immigration law violations but contacting ICE to notify them of the apprehension.

    The local AZ charges would be for violation of legit state law.

    Hence, the comparison to counterfeiting vs passing counterfeit money.  AZ will prosecute on the passing of the bogus money but hand you over to the feds for any counterfeiting violations.


    No (none / 0) (#12)
    by squeaky on Fri Jul 23, 2010 at 03:51:04 PM EST
    AZ is criminalizing being undocumented at the state level.

    Are the violators "charged" under (none / 0) (#13)
    by BTAL on Fri Jul 23, 2010 at 04:00:36 PM EST
    the AZ law or are ones found to be undocumented handed over to ICE for any charges/prosecution?

    IIRC, it is the latter.


    It Is A State Law (none / 0) (#15)
    by squeaky on Fri Jul 23, 2010 at 04:09:56 PM EST
    An undocumented person will be a criminal under AZ state law.

    The Arizona House has passed a bill similar to one passed by the state Senate criminalizing undocumented presence in the state. With some minor reconciliation changes, it will go to the Governor for signing into law. Included in the bill are provisions that:



    Handed off responsibility (none / 0) (#8)
    by waldenpond on Fri Jul 23, 2010 at 03:42:07 PM EST
    in some cases maybe?  .... they train employees of the States to enforce the law and the employees are paid by the State so maybe an argument can be made that the Feds don't agree that the Feds are solely responsible.... but I did not see that by AZ.

    I have been hoping that Richard Mack's karma (none / 0) (#33)
    by Jack E Lope on Sat Jul 24, 2010 at 08:15:11 AM EST
    would come back to haunt Arizona.  (Mack was a co-petitioner with Jay Printz, and a former Sheriff in Arizona.)  

    I think the best way to tie Printz to the current case is to posit that Arizona statutes commandeer federal enforcement resources.

    Printz decision here.


    Egad (none / 0) (#11)
    by Dadler on Fri Jul 23, 2010 at 03:49:45 PM EST
    This is a Clinton appointee? Not good.

    Ignorance of the scope of the constitution on this aside (and kind of hard to put it there, but...), she sounds like she's nursing a grudge, or a very strong personal opinion is seriously affecting her judicial demeanor.

    And IMO, "inhospitable" is such an odd choice of words. Creepy in a way.

    Interesting read and outline of preemption (none / 0) (#14)
    by BTAL on Fri Jul 23, 2010 at 04:05:50 PM EST
    in regards to immigration from National Immigration Law Center.

    Facts About Federal Preemption (pdf)

    Three criteria:

    In De Canas v. Bica, the Supreme Court articulated three tests to determine whether federal law preempts a state or local statute relating to immigration. The tests for determining preemption are:

    1. Constitutional preemption: Is the state or locality attempting to regulate immigration?

    2. Field preemption: Did Congress intend to occupy the field and oust state or local power?

    3. Conflict preemption: Does the state or local law stand as an obstacle to or conflict with federal law, making compliance with both the state and federal law impossible?

    A state statute or local ordinance that fails any one of these three tests is preempted by federal law, is unconstitutional, and is therefore invalid.

    1 and 3 don't apply but the further description of #2 and how the feds coop state/local authorities with funding and training appears to have invalidated the position of Field preemption.

    If you read the DoJ complaint (5.00 / 1) (#17)
    by andgarden on Fri Jul 23, 2010 at 04:51:55 PM EST
    you will see a strong (iron clad IMO) argument for "occupation of the field."

    Curious, does the DOJ complaint (4.00 / 1) (#18)
    by BTAL on Fri Jul 23, 2010 at 05:01:26 PM EST
    address the Section 287(g) relationships already established with AZ agencies?

    Could those not be presented as abandonment of "occupation of the field"?


    I read the complaint weeks ago (none / 0) (#19)
    by andgarden on Fri Jul 23, 2010 at 05:21:06 PM EST
    so someone else will have to answer this question.

    I do not think that could be a strong argument, though.


    Exactly. (none / 0) (#25)
    by jpe on Fri Jul 23, 2010 at 07:03:52 PM EST
    That was a puzzling omission, doubly so because it's the only reasonable argument for preemption.

    #1 - The State crosses the line of regulation (none / 0) (#32)
    by Jack E Lope on Sat Jul 24, 2010 at 07:35:40 AM EST
    ...when it decides that a Utah or New Mexico driver's license does not constitute proof of legal residency.

    ...the first time it holds someone prisoner because that person could not meet Arizona's burden of proof of legal residence.

    IMHO, since IANAL


    This judge sounds like trouble for U.S. government (none / 0) (#20)
    by Saul on Fri Jul 23, 2010 at 05:27:14 PM EST
    Just from the questions she is asking seems she is leaning toward throwing out the U.S government case of preemptive.

    I think this judge is under lots of pressure to side with Arizona especially if the court is there in Arizona and I assume she lives in Arizona

    I feel the U.S. government will have to take there case to the next level court.

    Not My Take (none / 0) (#21)
    by squeaky on Fri Jul 23, 2010 at 05:33:20 PM EST
    Sounds like she is going to gut the unconstitutional portions and leave the rest.

    The DOJ brief was underwhelming. (none / 0) (#24)
    by jpe on Fri Jul 23, 2010 at 07:03:11 PM EST
    It was long on recitation of inherent powers, and short on actual conflict.  It's the latter that counts for the preemption conflict.

    what's preemptive? (none / 0) (#22)
    by diogenes on Fri Jul 23, 2010 at 06:02:18 PM EST
    The ENFORCEMENT of immigration law consists of deporting someone.  Arizona's law does not deport anyone.  It only presents criminals to be adjudicated, much as a citizen's arrest would.  The federal government is certainly welcome to release anyone presented to it by Arizona, and it is indeed the power of the federal government to do so.  

    You've got it backwards. (none / 0) (#23)
    by jpe on Fri Jul 23, 2010 at 07:01:41 PM EST
    Why can't Arizona "enforce" immigration laws unless the federal government authorizes such enforcement? Simply, the Constitution does not permit it.

    State laws are preempted only if Congress expressly says as much or if the laws flatly conflict.  It's not the case that states can only enforce law when the federal government permits it.

    This is just wrong (5.00 / 1) (#31)
    by Big Tent Democrat on Sat Jul 24, 2010 at 06:44:42 AM EST
    What is the difference of local LE (none / 0) (#26)
    by BTAL on Fri Jul 23, 2010 at 07:13:19 PM EST
    that run a federal record/criminal check against someone who has been apprehended/detained on a local violation and up crops an outstanding warrant on a federal charge?

    Is it unconstitutional for that record check to have been conducted?  Do the locals ignore the federal warrant because they are not authorized?

    I will repeat BTAL is winning this argument. (3.00 / 2) (#28)
    by Gerald USN Ret on Fri Jul 23, 2010 at 10:56:11 PM EST
    The cry "preemption" is just a smoke screen.

    Arizona is not trying illegals on being illegal, it is just notifying the US that it has found illegals.

    If Obama and the DOJ wishes to free the illegals, they can just let them out the transport van.  If Obama wishes to pardon them, he can do that.

    The problem for Obama, the DOJ, and the Democrats is that they don't want the political heat that they would get if they enforce the law, or if they blatantly ignore it.

    Arizona is trying to kick the US's head out of the desert sand.


    Repeat it all you want (5.00 / 2) (#30)
    by Big Tent Democrat on Sat Jul 24, 2010 at 06:44:23 AM EST
    You simply do not understand the preemption concept.

    i believe you're incorrect: (5.00 / 1) (#35)
    by cpinva on Sat Jul 24, 2010 at 09:54:06 AM EST
    Arizona is not trying illegals on being illegal, it is just notifying the US that it has found illegals.

    by making the act of being in AZ a state criminal offence, that is, in fact, exactly what they're doing. hence, the obvious violation of the "Supremacy Clause".


    Smoke screen (none / 0) (#40)
    by diogenes on Sat Jul 24, 2010 at 12:57:39 PM EST
    Easy enough for Arizona to rework this law to deposit all illegals at the nearest INS center and let the feds either let them go free or deport them, if that is your only objection.
    As someone above noted, preemption is just a smoke screen.

    No, actually, not "easy" at all (5.00 / 2) (#42)
    by Peter G on Sat Jul 24, 2010 at 01:17:52 PM EST
    See my comment #38 above.

    One thing that Edwin S. Kneedler... (none / 0) (#29)
    by EL seattle on Sat Jul 24, 2010 at 12:24:47 AM EST
    ...apparently told the judge struck me as extremely less-than-promising, at least in a basic two-dimesional chess sort of way.  

    According the the Washington Post story:

    Kneedler said the conflict with federal law comes because the status checks are mandatory, which could lead to federal agencies being overwhelmed with deportation requests. Top officials at U.S. Immigration and Customs Enforcement, whose agents will handle most of the calls from Arizona authorities if the law takes effect, have said they will not necessarily respond to every call.

    To me, this sort of logic almost sounds like they're trying to set things up so that any decision they get in their favor might possibly wind up being one of the most Pyrric victories ever.

    Yup (none / 0) (#41)
    by diogenes on Sat Jul 24, 2010 at 01:00:18 PM EST
    What if the law was allegedly removed because "the US would be overwhelmed and simply has not set aside sufficient resources to deal with the problem of undocumented aliens".  That would play real well in Peoria.

    Slam dunk? (none / 0) (#43)
    by Abdul Abulbul Amir on Sat Jul 24, 2010 at 03:09:36 PM EST
    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.

    Well maybe.  The Constitution gives the feds the sole power to regulate interstate commerce.  Since the Wheat case just about every smidgen of commerce is considered interstate commerece.  Are the states barred from regulating commerce?  No.  Until the Congress by law tells the states to butt out, see Obamacare, the states are free to legislate.  

    The Congress not the executive of the moment establishes immigration policy.  The executive merely carries out that policy.  Obama is president, not king.  Since there appears to be no conflict at all between the AZ law and Congressionally established immigration policy, this may not be quite the slam dunk.

    constitutional powers (none / 0) (#46)
    by zaitztheunconvicted on Sat Jul 24, 2010 at 07:52:20 PM EST
    the constitution doesn't give the US exclusive powers over immigration.  It says that Congress shall have the power to establish uniform standards/criteria for naturalization, which is a different thing.

    1st thing is that the Pres is supposed to swear when he takes office to see that the laws are faithfully enforced, and so, apparently, he could be sued on the basis of failing to perform;

    2) the const says that the laws of congress, if constitutional, override state laws.  But there is also nothing preventing Ar from declaring it a state crime to be in Arizona if not a legal resident of the USA.

    BTD simply just doesn't undertand the Arizona Law (none / 0) (#47)
    by Gerald USN Ret on Sun Jul 25, 2010 at 08:38:30 PM EST
    BTD likes to claim that those disagreeing wit him just don't understand preemption.

    My counter claim is simple.

    BTD simply just doesn't understand the Arizona Law.

    If you understand it, (none / 0) (#48)
    by Jack E Lope on Mon Jul 26, 2010 at 01:47:52 AM EST
    ...can you outline the penalties it imposes for racial profiling?  

    I keep hearing that it won't lead to racial profiling because it says so.  What kind of teeth does it have behind that assertion?


    There is no penalty for racial profiling, and (none / 0) (#50)
    by Gerald USN Ret on Mon Jul 26, 2010 at 11:45:34 PM EST
    there is no penalty for not racial profiling, and no penalty for burglary, and no penalty for murder, and and no penalty for other various heinous acts and non heinous acts.