I’m not an expert on the law of federal preemption. For what it’s worth, however, I don’t believe Judge Bolton got the preemption issues right today when she granted a preliminary injunction blocking key portions of Arizona’s new immigration enforcement law. There are a number of issues and sub-issues in her ruling. The most important one, I think, is her finding that certain provisions of the law dealing with the treatment of arrestees are preempted because they will (1) result in the harassment of lawfully present aliens and (2) burden federal resources and impede federal enforcement and policy priorities.
Judge Bolton based her ruling regarding harassment of lawfully present aliens in part on her view that the statute requires Arizona to determine the immigration status of every person arrested in the state. That may well be the best reading of the statutory language, but Arizona has repudiated this construction, arguing that immigration status must be determined only when there is a reasonable suspicion that a person arrested is an illegal alien.
Many judges might have accepted this interpretation pursuant to the practice of favoring the construction of a statute that avoids striking down a law as unconstitutional. Other judges might have waited to see how Arizona implemented the law before striking it down based on a construction Arizona has repudiated. Judge Bolton did neither.
Judge Bolton also appears to have overstated the burden the Arizona law places on lawfully present aliens. According to Heather Mac Donald and Mark Krikorian, the number of lawfully present aliens who cannot instantly establish their right to be in the country is small. And even as them, their right to be here probably can be established quickly by contacting federal authorities.
In the weighing of interests required before a preliminary injunction is issued, it would seem that Arizona’s interest in coping with half a million or so illegal immigrants, and the havoc this influx is causing, outweighs the small burden the law may impose on a relatively small number of lawfully present, arrested aliens. In any event, I don’t believe the contrary view has been established in advance of seeing how the law actually works.
What about the “burden” on federal resources and the “impeding” of federal enforcement priorities that Judge Bolton claims will result from inquiries by Arizona law enforcement officials to the feds about some aliens who are arrested? Again, I think these problems are highly speculative at this juncture and so should not serve as a basis for striking down the law in advance of its implementation. Perhaps the feds would be swamped with inquiries to the point that federal efforts to enforce the immigration laws, such as they are, would be set back. But why assume this ahead of time?
The argument also strikes me as curious on its own terms. If the state has apprehended someone it suspects is an illegal alien, and that person can’t produce papers establishing his or her right to be in the country, why isn’t it a priority for the federal government to check the status of this person? The Arizona law doesn’t require federal agents to abandon the hot pursuit of narco-terrorists in order to check the federal database in response to an inquiry from a local sheriff. But apprehending illegals who have been arrested must rank pretty high on the list of federal priorities. If not, the government’s lawyers should so state. To my knowledge, they have not.
There’s much more that could be said, but I’ll leave the saying of it to those who know more than I do about preemption law and immigration law.
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