- The Washington Times - Wednesday, July 28, 2010

U.S. District Judge Susan R. Bolton miscalculated when she blocked critical aspects of Arizona’s immigration enforcement law. Her decision will further intensify efforts by states to find solutions to problems posed by the Obama administration’s unwillingness to take command of this pressing issue.

The decision is certain to inflame the illegal immigration debate, and it doesn’t bode well for the president or his party. According to a recent Quinnipiac poll, 55 percent of Americans back the Arizona law and 58 percent disapprove of Obama immigration policies. A Pew Research Center poll shows 63 percent think immigration reform is very important, and only 36 percent back the Justice Department’s suit against Arizona. The presumed political benefits of the administration’s stance are not materializing. According to Gallup, President Obama’s approval ratings among Hispanics have dropped from 68 percent in April to 55 percent in the latest weekly poll.

Judge Bolton ruled, “It is not in the public interest for Arizona to enforce preempted laws,” but this is a deceptive statement. If Arizona had passed a law that defined U.S. citizenship, as Attorney General Eric H. Holder Jr. has disingenuously suggested, federal supremacy would apply. However, the case at hand doesn’t deal with pre-emptive law but with parallel enforcement. Arizona’s law does not define who has broken immigration laws; it deals with what to do when police apprehend these criminals.

The relevant precedent is in Gonzales v. City of Peoria (1983), in which the U.S. Court of Appeals for the 9th Circuit - which includes Arizona - held that “although the regulation of immigration is unquestionably an exclusive federal power, it is clear that this power does not preempt every state activity affecting aliens.” The court stated flatly that “federal law does not preclude local enforcement of the criminal provisions” of federal immigration law, and that “concurrent enforcement is authorized” when they “do not impair federal regulatory interests.”

In the same case, the court noted that federal injunctions against state law enforcement actions should be undertaken only in the most extreme circumstances and should generally exercise restraint “based on principles of equity, comity and federalism” and “consistent with these principles, federal courts may not intervene in state enforcement activities absent extraordinary circumstances that threaten immediate and irreparable injury.” The notion that the federal government would be immediately and irreparably harmed by Arizona identifying previously detained illegals is unsustainable.

Rep. Luis V. Gutierrez, Illinois Democrat, hailed Judge Bolton’s decision, saying, “Arresting people based on their appearance and holding them until you can investigate their immigration status is patently un-American and unconstitutional.” This is a willful misrepresentation of the Arizona law but typical of the race-baiting politics of the left.

In 2005, the Supreme Court ruled in Muehler v. Mena that police could question suspects detained for other crimes about their immigration status even if they had no reason to believe they were illegals. In this, the court specifically overturned a ruling by the 9th Circuit Court that such questioning constituted a violation of the Fourth Amendment. The high court rejected as a “faulty” premise that police even needed reasonable suspicion to ask questions about immigration status, and countered citing previous precedent that “even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual.” Under the logic in Mena, Arizona doesn’t even need a special law for state and local police to make inquiries regarding immigration status.

Judge Bolton’s judicial activism is out of step with the law, out of step with politics and out of step with the good of the country.

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