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National Review: Detaining Arizona

Supporters of Arizona's immigration law demonstrate after Judge Susan Bolton issued a preliminary injunction preventing several sections from going into effect. John Moore/Getty Images hide caption

toggle caption John Moore/Getty Images

Supporters of Arizona's immigration law demonstrate after Judge Susan Bolton issued a preliminary injunction preventing several sections from going into effect.

John Moore/Getty Images

For another opinion about Judge Bolton's decision, read why John Nichols of The Nation believes she was upholding one of the most basic principles of Constitutional law: the federal government gets to set immigration policy.

Attorney General Eric Holder could have dictated most of Judge Susan Bolton's decision blocking key parts of the Arizona immigration law.

The judge twists facts and logic to support the Justice Department's claim that the state law preempts the federal immigration scheme. To do so, she accepts Justice's implicit argument that it's not the letter of the federal law that matters, but what parts of the law the executive decides to enforce. If her reasoning stands, we will basically cut Congress out of immigration policy and the states out of enforcement. Instead, our immigration system will entirely depend on executive discretion at a time when the executive has little interest in enforcing the law.

Judge Bolton notes that the Department of Homeland Security has set up a national operations center to promptly apprise local, state, and federal law-enforcement agencies of the legal status of aliens they encounter in the course of their work. Federal law requires that DHS "respond to an inquiry by a federal, state, or local government agency, seeking to verify or ascertain the citizenship or immigration status . . . for any purpose authorized by law, by providing the requested verification or status information."

Bolton bizarrely turns this explicit acknowledgment that the federal government envisions a state role in enforcement, and this requirement that the feds cooperate with states and municipalities, against Arizona. If the state finds too many suspected illegal aliens, it will overburden the system. "An increase in the number of requests for determinations of immigration," she writes, "will divert resources from the federal government's other responsibilities and priorities." Earlier in her decision, Judge Bolton sets out the different kinds of preemption, e.g. field preemption (where federal regulation is so comprehensive it "occupies the field") and conflict preemption (where a state law is at odds with a federal law). This is something utterly different: "We can't be bothered to answer the phone" preemption.

Judge Bolton makes much of the burden that will be placed on legal aliens by the Arizona law. At the margins, there will be some, of course. If they are stopped or arrested and suspected of being in the country illegally, they will be asked for proof of their legal status. Surely this is not unreasonable, since federal law requires that aliens carry proof of their legal status.

Taking her cues from the Justice Department suit, though, Judge Bolton worries that this arrangement will inconvenience too many aliens without proof of their legal status, such as "individuals who have applied for asylum but not yet received an adjudication" (who, we are sure, are flooding across the Mexico-Arizona border constantly). If they are arrested and their status is checked with the federal government, she continues, their release might be delayed. She deems all of this intolerable.

It will constitute an unacceptable "intrusion of police presence into the lives of legally-present aliens," she maintains, and runs counter to the 1941 Supreme Court decision in Hines v. Davidowitz, which held that Congress wanted to protect legal aliens from "inquisitorial practices and police surveillance." Here Judge Bolton slips from the merely implausible to the inadvertently hilarious. If you are arrested, it's difficult to avoid "police surveillance" during your arrest. And checking in with the federal government about an arrestee's status — via an information-sharing system set up exactly for the purpose — can hardly constitute an "inquisitorial practice."

The bottom line is that Arizona wants to enforce the law against illegal aliens. It wants them to be cognizant of the fact that the state is serious about the law, and therefore to conclude that it's best to leave or not come in the first place. Arizona did not deem these people illegal aliens. The federal government did, in laws passed by Congress and signed by the president of the United States. Arizona thinks those laws mean something. If the Justice Department's suit — and Judge Bolton's line of argument — prevails, then we'll know that they don't. The real law of the land will be our current, de facto amnesty, imposed by executive whim.

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