Jonathan Emord – Judge Bolton Invalidates Part of AZ Immigration Law
The suit brought by the Obama Administration against the law is a pre-enforcement or facialchallenge. Because the challenge occurs before the law is implemented, the Supreme Courthas required that “the challenger must establish that no set of circumstances exists under which the Act would be valid.”
United States v. Salerno
, 481 U.S. 739, 745 (1987). Inparticular, the Court is not to base its decision on hypothetical or presumed cases. We certainly can conceive of instances in which each of the four provisions would be validly enforced and, so, the pre-enforcement challenge standard has not been satisfied. It iscounterintuitive to assume that a person detained on probable cause of the commission of acrime, like, for example, murder, who is found not to be in this country lawfully wouldthrough his arrest either unduly burden lawful immigrants or impose undue burdens onfederal authorities, particularly because just such a person is removable from this country under federal law. Rather, legal immigrants, like all Americans, are best protected when suchindividuals are prosecuted.It is counterintuitive to assume that a law focused on enforcing the federal requirement thatalien residents file applications for, and carry proof of, alien registration is somehow burdensome to lawful immigrants or to federal law enforcers who are supposed to beimplementing that very legal requirement. Indeed, we have to stretch our imaginations in amighty way to presume that such a law would be wrongly applied to a legal immigrant or would generate such an enormous quantity of referrals to the feds that they would beoverwhelmed by them (particularly because the feds now routinely ignore state referrals onall manner of illegal immigration issues; there is nothing requiring them to take the new referrals any more seriously).
It is counterintuitive to assume that a state law that supports federal law prohibitingemployment of illegal aliens would harm lawful immigrants or burden federal law enforcers.The state law on its face aims at illegal aliens, thus only a wrongful application of it wouldreach a lawful immigrant. Moreover, the feds are burdened only if they choose to implementfederal law (but that is their pre-existing duty and should not be considered cognizable as anew or added burden).
It is counterintuitive also to assume that a law that makes it a crime to commit an offense thatmakes a person removable from the United States under federal immigration law either burdens lawful immigrants or federal law enforcers. It is in aid of federal law enforcement,and the feds have the final say so under this state law concerning whether the person isremovable. It is entirely within federal discretion to deem a person not removable, or toignore the state request for a determination.
The decision tacitly presumes that states do not presently aid federal law enforcementthrough referrals of suspected illegal immigrants and in support of federal governmentactions against illegal aliens involved in drug trafficking, human trafficking, or smuggling of illegal goods. They do, every day. In this environment, the Arizona law is neither new norexceptionally burdensome. It certainly does not obstruct federal immigration law.
Finally, nothing in the law authorizes or condones racial profiling or discrimination againstlegal immigrants. This new law is comparable to many others that aid federal law enforcement, only now due to political pressure from President Obama has the Department of Justice chosen to single out the Arizona law for strained arguments that it obstructs or