Breaking: Judge blocks parts of AZ immigration law; Update: Pre-emption wins, for now

posted at 1:31 pm on July 28, 2010 by Ed Morrissey

Federal judge Susan Bolton has issued a temporary restraining order against the most controversial portions of the Arizona immigration-enforcement law, while keeping much of it in place.  The requirement for police to check immigration status has been suspended, however, pending a full review by the court at a later date:

A federal judge on Wednesday blocked the most controversial parts of Arizona’s immigration law from taking effect, delivering a last-minute victory to opponents of the crackdown.

The overall law will still take effect Thursday, but without the provisions that angered opponents — including sections that required officers to check a person’s immigration status while enforcing other laws.

The judge also put on hold parts of the law that required immigrants to carry their papers at all times, and made it illegal for undocumented workers to solicit employment in public places.

U.S. District Judge Susan Bolton ruled that the controversial sections should be put on hold until the courts resolve the issues.

A temporary injunction gets put into place when a judge thinks that a court review has some likelihood of overturning a law in a full hearing.  That doesn’t amount to a decision on the merits, but it does indicate that Bolton thinks the Department of Justice can make a case for blocking the law.

What will be interesting will be to see whether this impacts public opinion.  The Obama administration has taken a beating in the polls on this issue, with poll after poll showing majorities of Americans supporting the Arizona law.  A temporary injunction on portions of the bill may get some people rethinking the issue, but I’d be surprised if there was any substantial movement. If a judge later rules against the law after a full hearing, it might change feelings about the law specifically, but probably not about enforcement.

I’d also expect the White House to claim this as vindication, but only because they have been utterly tone-deaf on this issue for the last three months.  They should wait on the I-told-you-so for the full hearing.

Update: This point seems key.  On page 14, Bolton says that the law as written would require law enforcement to check immigration status on everyone arrested or held, not just those with “reasonable suspicion” of being illegal immigrants.  That would create a huge burden on both law enforcement and on legal immigrants, Bolton writes.

Also, on page 17, Bolton appears to buy the argument that a large influx of referrals from Arizona to the ICE would have the effect of pre-empting federal policies on national security and immigration:

For these reasons, the United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established.

And again on pages 20-21:

In combination with the impermissible burden this provision will place on lawfully-present aliens, the burden on federal resources and priorities also leads to an inference of preemption. Therefore, for the purposes of preliminary injunction analysis, the Court concludes that the United States has demonstrated a likelihood of success on its challenge to the first sentence of Section 2(B). Section 2(B) in its entirety is likely preempted by federal law.

Basically, Bolton seems to feel that the DoJ will win in court on these issues, or at least has a strong case.


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