What Judge Bolton Got Wrong

Arizona District Court Judge Susan Bolton ordered a preliminary injunction against the enactment of several provisions of Arizona's immigration law known as SB 1070.

In doing so, the Judge determined that the United States had shown a likelihood of success on the merits that the law (or at least the best provisions of it) was preempted by federal law.

However, the Judge's decision is based mostly on Hines v. Davidowitz, a 69-year old case in which the Supreme Court found that Pennsylvania's alien registration law was preempted by the Federal Alien Registration Act. There, the state law conflicted with federal law, and the Federal government is granted the authority to regulate the registration of aliens by the U.S. Constitution.

But the law in Arizona does not deal with the registration of aliens. They only deal with determining the immigration status of people. As such, the Supreme Court case from 1941 is not directly on point.

In fact, the court in that case stated that it was "expressly leaving open all of appellees' other contentions, including the argument that the federal power in this field, whether exercised or unexercised, is exclusive." Instead, the Court was merely answering the question "of the respective powers of state and national governments in the regulation of aliens as such, and a determination of whether Congress has, by its action, foreclosed enforcement of Pennsylvania's registration law."

While the District court in the case of SB 1070 quoted only a portion of the following passage, reading it in whole connotes the very specific situation for which it was written:

Having the constitutional authority so to do, [Congress] has provided a standard for alien registration in a single integrated and all-embracing system in order to obtain the information deemed to be desirable in connection with aliens. When it made this addition to its uniform naturalization and immigration laws, it plainly manifested a purpose to do so in such a way as to protect the personal liberties of law-abiding aliens through one uniform national registration system, and to leave them free from the possibility of inquisitorial practices and police surveillance that might not only affect our international relations, but might also generate the very disloyalty which the law has intended guarding against. Under these circumstances, the Pennsylvania Act cannot be enforced.

Saying that Congress preempts state registration laws by creating its own registration law is a completely different thing than saying that states are preempted from regulating people within their borders.

In addition, the Supreme Court has held in such cases as Grahama v. Richardson and Bernal v. Fainter that states can create laws that discriminate against even legal aliens, so long as those laws meet the "strict scrutiny" test of constitutionality. As such, where Judge Bolton cautions against "imposing burdens on lawfully-present aliens," as she claims SB 1070 will do, she fails to engage in the type of analysis required to determine the constitutionality of such a law.

The biggest problem for Arizona is that the case will be appealed to the Ninth Circuit, the most liberal of all circuits. But all is not last, as the Ninth Circuit upheld an Arizona law in 2008 that required all businesses to determine the immigration status of employees.

As Governor Brewer stated, the battle is far from over. Judge Bolton's reliance on a 69-year-old law that is not directly on point raises serious questions as to whether her ruling will stand.