Judge Bolton’s Opinion and Order Blocking Key Parts of Arizona Immigration Law – UPDATED

Here is the complete, 36-page opinion and order by District Court Judge Susan Bolton striking down and blocking key portions of Arizona’s controversial immigration law.   The court invalidated the following provisions of the Arizona law, S.B. 1070,  stating they  were preempted by federal law.

A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to
determine the immigration status of a person stopped,
detained or arrested if there is a reasonable suspicion that
the person is unlawfully present in the United States, and
requiring verification of the immigration status of any
person arrested prior to releasing that person
Section 3 of S.B. 1070
A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien
registration papers
Portion of Section 5 of S.B. 1070
A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply
for, or perform work
Section 6 of S.B. 1070
A.R.S. § 13-3883(A)(5): authorizing 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 court further found the federal government would suffer irreparable harm if the above provisions were allowed to go into effect, and therefore issued an injunction prohibiting them from taking effect and being enforced.
My read of the opinion is that the second half of A.R.S. § 11-1051(B), could be salvaged with a re-draft.  The Arizona legislature’s sloppy draftsmanship required law enforcement to hold every person arrested until their immigration status could be verified, regardless of whether there was any basis to believe they are in the country illegally.
Arizona tried to argue that the plain language didn’t really mean what it obviously said.   The judge correctly required Arizona to state what they actually mean in the law, and ruled that requiring an immigration check on every person arrested would place an unreasonable burden on the federal government and would result in the unlawful detention of legal aliens and even citizens.
Arizona thus might be able to require law enforcement  to detain arrestees  if they have reasonable suspicion they are in the country illegally after an arrest on an unrelated offense. The court didn’t reach that issue because it wasn’t presented to her.
Judge Bolton based her reasoning entirely on the Constitution’s supremacy clause and the notion that Congress has pre-empted state regulation in the provisions struck down.  The court rejected a commerce clause argument by the federal government, and did not rule on the  racial profiling issue because it was not necessary.
Updated: July 28, 2010, 2:12 p.m. MST.

4 responses to “Judge Bolton’s Opinion and Order Blocking Key Parts of Arizona Immigration Law – UPDATED

  1. While there is clearly a need for this law, and the majority of Americans want this law, it must be clearly written so as to hold up in the courts, State and Federal. The AZ Legislature needs to go back to the drafting table and clean up this act. If necessary, call a special session of the Legislature to pass it. The American people want this legislation and it must be so written as to solidly withstand scrutiny.

    The presence of illegals in this country is, and has been, a huge drain on taxpaying citizens. Has anyone considered the 4th Amendment aspects of the economic consequences of illegals (schools, hospitals, social services, etc)?

    We must secure our borders and respect those who enter our country pursuant to our immigration rules.

  2. Jacki, I agree. Some conservatives are saying the court should have taken Arizona’s lawyers’ word for it that “every person” doesn’t really mean that. I sure wouldn’t feel safe with a law like that, a law that allows “every person” who’s arrested to be held in custody until their immigration status is established.

    Conservtive legal scholars agree with us, though.

  3. george balding

    I hope Judge Bolton’s decision can be overturned. It is ovious that this is purely political. She has a reputation of being an activist and leans toward the radical like President Obama. Doesn’t Judge Bolton know that it is against the law of the USA to come here without being approved, or invited.

  4. Fox News’ Megan Kelly despite being a lawyer, fromt the unranked Albany law school, though admittedly a very stupid one who is poor both on legal knowledge and analysis. She is now saying the VA Atty. General’s opinion that an officer MAY ask someone detained for other reasons about their immigration status is the “same as the Arizona law” that was invalidated.

    WRONG. The above quotes taken directly from the opinion makes it clear, as does the reasoning in the opinion, that it was the requirement ro do this that invalidated the law. This is nothing new. A cop stopping you can ask you just about whatever he wants. He can ask if you wouldn’t mind consenting to a strip down search of your car. You can say no, but he can ask.

    This is in no way the same, and this Bimbo really needs to take an executive refresher course in legal principles. Actually, 8th grade English should be sufficient for this linguistic no-brainer.

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