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The Law Wins, Extremists Lose in Ruling on Arizona Anti-Immigrant Action

SOURCE: AP/Ross D. Franklin

Television satellite trucks gather at the Arizona capitol on July 28, 2010 in Phoenix shortly after a federal judge blocked portions of Arizona's controversial new immigration law, SB1070.

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In a stinging blow against the most extreme and most controversial provisions in Arizona’s misguided immigration law (S.B. 1070), U.S. District Judge Susan R. Bolton delivered a clear and legally compelling decision to block them from going into effect. This careful and well-reasoned opinion was a breath of fresh air in a polarized debate that has boiled over with ugly rhetoric and baseless, incendiary claims.

The Wednesday ruling is a timely reminder that reason and the rule of law, not emotion and political gamesmanship, must guide public policy decisions. Mostly, it should remind Congress that this is a federal issue and it is up to that branch of the federal government—not the states—to enact comprehensive immigration reform.

Judge Bolton concluded, as the U.S. Department of Justice had argued, that the Arizona legislature and governor had reached beyond their constitutional authority in enacting this law. In deciding to temporarily enjoin four of the most harmful provisions, she found that the Department of Justice was likely to prevail in its challenge on grounds of federal pre-emption. She also found that the federal government would suffer irreparable harm if those provisions went into effect and that enjoining these measures was clearly in the public interest.

With her sensible ruling, Judge Bolton obviously disappointed the senator who recommended her to the federal bench, Sen. John Kyl (R-AZ). Before the ruling was announced, Sen. Kyl opined that the judge would not enjoin the provision requiring police officers to ask for proof of immigration status from individuals they suspect are undocumented. To Kyl’s dismay, not only did Judge Bolton block that provision, but she also enjoined the other measures that had been most volubly touted by SB 1070’s proponents.

The key provisions temporarily enjoined by Bolton would:

  • Require verification of the immigration status of any person arrested prior to releasing that person
  • Create a crime for the failure to apply for or carry alien registration papers
  • Create a crime for an unauthorized alien to solicit, apply for, or perform work
  • Authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States

The proliferation of state and local immigration ordinances over the last several years is a byproduct of widely shared frustration at Congress’s inability to enact practical immigration policies. Arizona’s law, however, provided a window into what the logical extension of that proliferation would produce. Judge Bolton peered into that window with her constitutional scope and concluded that the patchwork of immigration laws and policies that would result run directly counter to the federal government’s asserted interest in uniform immigration regulation.

As we mused before the Department of Justice filed its lawsuit: “Imagine every state taking up similar legislative efforts. The random scattering of immigration enforcement powers across the country would effectively nullify the federal government’s ability to define immigration enforcement policy. Crossing certain state lines could become the equivalent of crossing national boundaries for all citizens, not just immigrants.” Such a result would have obvious and profound law enforcement, foreign policy, and humanitarian consequences.

If SB 1070’s proponents and the instigators of similarly misguided measures around the country really want to end illegal immigration, they would train their sights on a realistic solution, such as the immigration reform framework set forth by the Senate’s Democratic leadership. The same elected officials advancing Arizona’s failed anti-immigration strategy are blocking the way forward on federal action toward comprehensive immigration reform that works for our society and economy in line with fundamental American values.

Rather than cynical grandstanding and singing to the tune of extremists, Arizona’s politicians should be demanding congressional action on immigration reform. It is time to move beyond the sound bites, fear-mongering, and political stunts. Hopefully, this sober decision from a federal judge will lead the country back to a rational discussion about real solutions.

Marshall Fitz is Director of Immigration Policy at American Progress. For more on the Center’s immigration policy recommendations and analysis please go to the immigration page of our website.

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