The Nation: Arizona's Lesson In Constitutional Law

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U.S. Border Patrol agents i i

U.S. Border Patrol agents check vehicles arriving from Mexico. Arizona Federal Judge Susan Bolton decided to block immediate implementation of central provisions of the state's new anti-immigrant laws on Wednesday. Mark Ralston/AFP/Getty Images hide caption

itoggle caption Mark Ralston/AFP/Getty Images
U.S. Border Patrol agents

U.S. Border Patrol agents check vehicles arriving from Mexico. Arizona Federal Judge Susan Bolton decided to block immediate implementation of central provisions of the state's new anti-immigrant laws on Wednesday.

Mark Ralston/AFP/Getty Images

For another opinion about Judge Bolton's decision read why the editors of National Review think she twists facts to support the Justice Department’s claim that the Arizona state law preempts the federal immigration scheme.

John Nichols writes about politics for The Nation magazine as its Washington correspondent. He is a contributing writer for The Progressive and In These Times and the associate editor of the Capital Times, the daily newspaper in Madison, Wisconsin.

The most reactionary conservatives, many of them clutching unread copies of U.S. Constitution, are already screaming about the decision of Arizona Federal Judge Susan Bolton to block immediate implementation of central provisions of the state's new anti-immigrant laws.

But all that Bolton did — with a decision issued hours before the law was to go into effect — was to assert one of the most basic principles of Constitutional law: that the federal government gets to set immigration policy.

This is not complicated stuff.

Article 1, Section 8 of the document gives Congress the authority "to establish an uniform Rule of Naturalization..."

This is not some totalitarian scheme hatched by James Madison and George Mason back in 1787.

It was one of the most practical things the founders did.

For any country, especially any large country, there has to be basic uniformity with regard to questions of who gets to enter the country and how. That does not mean that the federal government has done a good job of setting immigration policy — in recent years or, for that matter, historically. In fact, if there is one position that unites Democrats and Republicans, conservatives and liberals, Obama backers and Tea Partisans, it is that Congress needs to get serious about developing comprehensive immigration reforms. Unfortunately, there is less agreement on how those reforms might operate in a humane and functional manner. And that has created a stalemate.

It may be that the controversy regarding the Arizona law will break the stalemate in Washington.

But this does not justify the development of 50 separate-and-unequal state immigration laws. As Hannah August, a spokeswoman for the Justice Department, explained it late Wednesday: "While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement."

That was what the Justice Department argued in asking Judge Bolton to intervene.

That is what Judge Bolton found, when she determined that it was likely the courts would uphold the view that the Arizona statute was written in a way that would interfere with federal law and policy.

Frustration with the federal government does not justify states grabbing powers that the Constitution rests with Congress.

And it certainly does not justify allowing one state — Arizona — to create a law that leaves state and local law enforcement officers no choice but to engage in racial and ethnic profiling.

That sort of profiling is an affront to the most basic premises of a Constitution that guarantees equal protection under the law.

Bolton found that the Arizona law created a "substantial likelihood that officers will wrongfully arrest legal resident aliens" and that it would increase "the intrusion of police presence into the lives of legally present aliens (and even United States citizens), who will necessarily be swept up" by it."

That is not the statement of a "judicial activist."

That is a restatement of basic premises with regard to the Constitution.

What this adds up to is a conclusion that Judge Bolton is a strict constructionist.

You might even call her a conservative.

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