The Arizona Immigration Ruling: How Judge Bolton Made Her Calls

Judge Susan Bolton
Judge Susan Bolton

When U.S. District Court Judge Susan Bolton blocked enforcement of parts of Arizona's controversial immigration statute yesterday, she didn't do much to quell the controversy surrounding the law. But she did try to clarify several key legal issues, and a closer look at her ruling shows what her logic was.

A recent CNN/Opinion Research poll shows a majority of Americans support the law, which amounted to Arizona attempting to enforce federal law by requiring the state's law enforcers to identify and prosecute illegal aliens as part of routine practices such as lawful stops and arrests.

That idea strikes many people as commonsense (and the provisions that didn't get struck down are taking effect today), so Americans are likely wondering: What was Judge Bolton thinking?

Things Only the Federal Government Can Do

In short, she found that federal law trumps the parts of the statute she struck down because they imposed burdens on legal immigrants that only the federal government can impose, and because the state's action would force the U.S. government to reallocate resources away from federal priorities, something states can't do.

Analyzing the Arizona statute, the judge found that one provision required Arizona cops to detain every person arrested until his immigration status could be verified -- and only an actual check of immigration status would do. Proxy documents, like a valid Arizona driver's license, would be insufficient (order at p. 14-17). That requirement was preempted, the judge found, because it functioned like an alien registration statute, and alien registration is something only the federal government can do.

Moreover, the flood of status-check requests would overwhelm the federal government, forcing it to reallocate resources away from its own priorities, and states aren't allowed to do that. ("Unfunded mandate" complaints work for the federal government, even if they don't for the states.)

Unfortunately for those who want the Constitutional issues squarely addressed, this ruling appears to be the result of a drafting error. Arizona argued that it intended to detain only people reasonably believed to be illegal immigrants until their status was verified, and proxy documents like an Arizona driver's license would be enough for verification. But as Bolton pointed out, those limitations aren't in the text of the statute, read literally.

Uncle Sam Doesn't Have to Enforce His Own Laws

Another struck-down provision was the law's requirement that Arizona police verify immigration status during lawful stops of people when there's a reasonable suspicion that they may be here illegally. The judge found that this provision was also preempted as akin to alien registration and would also force the federal government to reallocate resources (order at p. 17-21). Unlike the arrest provision, this one puts a heavy burden only on legal immigrants, as it focuses only on people believed to be aliens.

In striking down the part of the law that would enable state law enforcement to prosecute and punish violations of the federal alien-registration laws, Bolton found that merely allowing state enforcement and state punishment was enough of a change to the federal approach to immigration as to be preempted (order at p. 21-23). That was so even though Arizona didn't try to change the registration requirements the federal government had imposed.

Although the judge doesn't put it this way, it sounds like she's saying the federal government has a right to decide not to enforce its alien-registration laws if it wants, a right it would lose if enforcement also became a state power.

Too Complicated for Cops

She also rejected Arizona's effort to punish illegal immigrants from working or trying to work, saying that the federal government had done enough regulation in this area to prevent states from trying to regulate as well. That's true, the judge found, even though employment regulation is an area of state power and is not easily preempted (order at p. 23-27).

In looking at a provision that as interpreted would allow Arizona cops to arrest without a warrant people eligible for deportation because of a crime they had committed in another state, Bolton found that cops lacked the competency to make the necessary judgments. That's because whether an offense enables an immigrant to be deported is complicated and decided by federal judges. As a result, Arizona cops were likely to arrest lots of legal aliens not subject to deportation. Again, that would impose a burden on legal aliens that only the federal government can impose.

The judge's order has roiled politics and popular opinion, and Gov. Jan Brewer (R) says she'll appeal the ruling. But all this controversy would evaporate if Congress would just sit down and thrash out an acceptable immigration reform law. The odds of that happening anytime soon, however, are about nil.