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Immigration ruling sends ‘hands off’ message to states

By BOB CHRISTIE
July 29, 2010

(AP)

States that had been watching Arizona’s immigration law in hopes of copying it received a rude awakening when a judge put most of the measure on hold and agreed with the Obama administration’s core argument that immigration enforcement is the role of the federal government.

The ruling marked a repudiation of the Arizona law as U.S. District Judge Susan Bolton indicated that the government has a good chance at succeeding in its argument that federal immigration law trumps state law. It was an important first-round victory for the government in a fight that may not be settled until the U.S. Supreme Court weighs in.

But opponents of the law said the ruling sends a strong message to other states hoping to replicate the law. “Surely it’s going to make states pause and consider how they’re drafting legislation and how it fits in a constitutional framework,” Dennis Burke, the U.S. Attorney for Arizona, told the Associated Press. “The proponents of this went into court saying there was no question that this was constitutional, and now you have a federal judge who’s said ‘hold on, there’s major issues with this bill.'”

He added: “So this idea that this is going to be a blueprint for other states is seriously in doubt. The blueprint is constitutionally flawed.”

Gov. Jan Brewer called Wednesday’s decision “a bump in the road” and vowed to appeal. The key sponsor of Arizona’s law, Republican Rep. Russell Pearce, said the judge was wrong and predicted that the state would ultimately win the case.

In her temporary injunction, Bolton delayed the most contentious provisions of the law, including a section that required officers to check a person’s immigration status while enforcing other laws. She also barred enforcement of parts requiring immigrants to carry their papers and banned illegal immigrants from soliciting employment in public places — a move aimed at day laborers that congregate in large numbers in parking lots across Arizona. The judge also blocked officers from making warrantless arrests of suspected illegal immigrants.

“Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully present aliens because their liberty will be restricted while their status is checked,” said Bolton, a Clinton appointee who was assigned the seven lawsuits filed against Arizona over the law.

Other provisions that were less contentious were allowed to take effect Thursday morning, including a section that bars cities in Arizona from disregarding federal immigration laws.

The 11th-hour ruling came just as police were preparing to begin enforcement of a law that has drawn international attention and revived the national immigration debate in a year when Democrats are struggling to hold on to seats in Congress.

The ruling was anxiously awaited in the U.S. and beyond. About 100 protesters in Mexico City who had gathered in front of the U.S. Embassy broke into applause when they learned of the ruling. They had been monitoring the news on a laptop computer. Mariana Rivera, a 36-year-old from Zacatecas, Mexico who is living in Phoenix on a work permit, said she heard the news live on a Spanish-language news program.

“I was waiting to hear because we’re all very worried about everything that’s happening,” said Rivera, who phoned friends and family with the news. “Even those with papers, we don’t go out at night at certain times there’s so much fear (of police). You can’t just sit back and relax.”

Lawmakers or candidates in as many as 18 states say they want to push similar measures when their legislative sessions start up again in 2011. Some lawmakers pushing the legislation said they would not be daunted by the ruling and plan to push ahead in response to what they believe is a scourge that needs to be tackled.

Arizona is the nation’s epicenter of illegal immigration, with more than 400,000 undocumented residents. The state’s border with Mexico is awash with smugglers and drugs that funnel narcotics and immigrants throughout the U.S., and the influx of illegal migrants drains vast sums of money from hospitals, education and other services.

“We’re going to have to look and see,” said Idaho state Sen. Monty Pearce, a second cousin of Russell Pearce and a supporter of immigration reform in his state. “Nobody had dreamed up, two years ago, the Arizona law, and so everybody is looking for that crack where we can get something done, where we can turn the clock back a little bit and get our country back.”

Kris Kobach, the University of Missouri-Kansas City law professor who helped write the law and train Arizona police officers in immigration law, conceded the ruling weakens the force of Arizona’s efforts to crack down on illegal immigrants. He said it will likely be a year before a federal appeals court decides the case.

“It’s a temporary setback,” Kobach said. “The bottom line is that every lawyer in Judge Bolton’s court knows this is just the first pitch in a very long baseball game.”

In the meantime, other states like Utah will likely take up similar laws, possibly redesigned to get around Bolton’s objections.

“The ruling … should not be a reason for Utah to not move forward,” said Utah state Rep. Carl Wimmer, a Republican from Herriman City, who said he plans to co-sponsor a bill similar to Arizona’s next year and wasn’t surprised it was blocked. “For too long the states have cowered in the corner because of one ruling by one federal judge.”

The core of the government’s case is that federal immigration law trumps state law — an issue known as “pre-emption” in legal circles and one that dates to the founding of America. In her ruling, Bolton pointed out five portions of the law where she believed the federal government would likely succeed on its claims.

The Justice Department argued in court that the law was unconstitutional and that allowing states to push their own measures would lead to a patchwork of immigration laws across the nation and disrupt a carefully balanced approach crafted by Congress.

Arizona argues that the federal government has failed to secure the border, and that it has a right to take matters into its own hands.

For now, the federal government has the upper-hand in the dispute, by virtue of the strength of its arguments and the precedent on the pre-emption issue. The Bush administration successfully used the pre-emption argument to win consumer product cases, and judges in other jurisdictions have looked favorably on the argument in immigration disputes.

“This is clearly a significant victory for the Justice Department and a defeat for the sponsors of this law,” said Peter Spiro, a constitutional law professor at Temple University who has studied immigration law extensively. “They will not win on this round of appeals. They’ll get a shot after a trial and a final ruling by Judge Bolton.”

___

Associated Press Writers Paul Davenport and Jacques Billeaud contributed to this report.

Copyright © 2010 The Associated Press

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9 Responses to Immigration ruling sends ‘hands off’ message to states

  1. eve

    July 29, 2010 at 9:54 am

    So Arizona will continue to be flooded with illegal immigrants?
    Isn’t it the Federal Government’s job to “secure the border?”
    So why are they NOT securing the border?
    So why are they NOT securing the border?
    …I had to ask that twice….

    • jim0001

      July 29, 2010 at 10:03 am

      The admistration is securing potential Democratic voters.
      The admistration is securing potential Democratic voters.

      Any medicical first responder knows the urgent life threatening items are to “stop the bleeding and start the breathing”.
      We (USA) is bleeding from several lacerations (eg. AZ. CA. TX.) and there is no oxygen in D.C.

  2. jim0001

    July 29, 2010 at 10:04 am

    I apologize. I spelled medical incorrectly. I am a product of the bled out public education system.

  3. Carl Nemo

    July 29, 2010 at 11:21 am

    Maybe its time for the revolution to start. Governor Jan Brewer should put out an order for all state based enforcement agencies to ignore the Federal court ruling under a state of emergency condition.

    The Feds typically threaten to withhold state highway funding and other such incentives for not towing the line. Other than that, all they can do is arrest the governor. I don’t think that would be politically expedient for Obama & Co. prior to the November elections with the highly probable expunging of entrenched, incumbent Dems and Republicans from high office. I’m hoping this election turns out to be a “purge”.

    It’s time the states started thumbing their noses at Federal mandates especially when it’s demonstrated that the Federal government is not doing their job as required by federal statute.

    People need to get it in their seemingly thick heads that our Federal government is now a criminally disposed enterprise and is broken for all practical purposes, therefore needs to be overhauled from top to bottom. Nothing will stop them outside of summary resistance, first starting with state governments resisting then at the individual level if necessary.

    Carl Nemo **==

  4. woody188

    July 29, 2010 at 11:49 am

    The core of the government’s case is that federal immigration law trumps state law — an issue known as “pre-emption” in legal circles and one that dates to the founding of America.

    Of course there is overlap. The Arizona law was crafted this way on purpose to mirror Federal Law and to point out the Federal dereliction of duty to secure the nation. Judge Bolton just proved Arizona’s point.

    The Justice Department argued in court that the law was unconstitutional and that allowing states to push their own measures would lead to a patchwork of immigration laws across the nation and disrupt a carefully balanced approach crafted by Congress.

    Which approach is that?
    Amnesty?
    Ignoring the issue?
    Hosting Calderon and applauding his suggestion that Arizona is racist?

    We’d all be happy if the Feds were doing their job and securing the border. They would need to prove they are doing so to invalidate Arizona’s claim to make their pre-emption claim stick.

  5. Bogofree

    July 29, 2010 at 1:41 pm

    I love the ruling! let that hang around until November and put another nail in the coffin.

  6. Pondering It All

    July 29, 2010 at 3:58 pm

    As the bill was written, anybody in Arizona could be asked to provide proof of citizenship or legal immigrant status at any time, by any police officer. Fail to provide it, and you are guilty of a crime and subject to arrest. Doesn’t matter if you are a citizen: You still broke the law by not carrying your “papers”!

    So every citizen of Arizona (and every tourist or airport stopover passenger) would need to carry something like a passport, that the local police would recognise as legitimate. Driver’s licenses might do for locals (since I think Arizona doesn’t issue licenses to illegals), but how could the police know if other state’s licenses are fakes?

    The parts the judge suspended would have been unworkable, not just unconstitutional. The parts she left intact, are essentially the same as the current federal policy, and those really could work if they were enforced more consistantly.

    • jim0001

      July 29, 2010 at 11:39 pm

      STAND UP. Place your feet shoulder width apart, Bend 90 degrees at the waist, Extend your arms and finger tips until they touch your toes, Continue moving your arms rearward in a fluid movement, grasp yourself firmly by both your ears, Pull agressively until you extract your head from your 4th point of contact!
      HELLOOOOO….Think this through, please. number one, ENFORCED BY?????? At issue here is that the federal government under BHO is NOT doing the job they are funded to do, You have to have been suspected of breaking a law before the PD could stop you (a primary offense) then and only then could you be questoned about your LEGAL RIGHT TO BE HERE (a secondary offense).
      I suggest that if you purchased land in one of the invaded states, had family members murdered, property stolen, property ransacked, farm animals raped, you would not have the same attitude. After these criminals had killed your father you would probably be willing to take his old 12 gauge and sit on the property line. WAKE UP, this clinton appointed activist (aka: judge) ruled in favor of FORIEGN CRIMINALS NOT THE AMERICAN PEOPLE. PLEASE ENLIGHTEN ME AS TO MY FLAWED THINKING.

      • Guardhouse Lawyer

        August 1, 2010 at 7:00 am

        “the federal government under BHO is NOT doing the job they are funded to do,”

        Funded? Perhaps you need to pull your own head out of your A$$ instead of telling others to do so. The flaw in your thinking is right there. What funding? The cost to close (seal) our borders, including thousands of miles of porous sea borders would be astronomical.

        And it would also be a case of locking the barn after it has burnt down.