Legal Commentary

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

By Big Tent Democrat

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

Full post as published by TalkLeft on July 23, 2010 (boomark / email).