Judge Grants Preliminary Injunction Against Arizona Immigration Statute

July 29th, 2010

By Dan Miller

King Solomon, who offered to cut a baby in half to resolve a dispute between two women over its custody, might be proud of U.S. District Judge Bolton’s ruling on Wednesday, but I rather doubt it.

*  *  *

The doctrine of federal preemption, like overly expansive interpretations of the Commerce Clause under the reign of Good President Roosevelt II, has been taken too far. Judge Susan Bolton’s decision on Wednesday is just one more step along the path to total federal dominance over all aspects of life in the United States.

Rather than issue a preliminary injunction to prevent the Arizona immigration law from going into effect as scheduled, Judge Bolton should have dismissed the federal government’s action and based a later decision on the effects of the law as applied. Should the Arizona law be wrongly applied, in a constitutionally inappropriate manner, as Attorney General Holder and President Obama earlier opined it would be without bothering to read it, she could and should take action.

On July 28, U.S. District Judge Susan R. Bolton granted the federal government’s request for a preliminary injunction to block implementation on July 29 of Arizona’s new immigration law. Her thirty-six page opinion was based on the doctrine of federal preemption and may well be inconsistent with controlling Supreme Court precedent as argued here; it will almost certainly be appealed and may well be overturned, eventually. In the meantime, the Arizona immigration law has been eviscerated and the residents of Arizona will continued to be harmed by the abysmal enforcement failures of the federal government.

Although noting that the statute had been enacted “against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns,” Judge Bolton made no mention of the federal government’s failure to enforce its own laws and held that the “United States is likely to succeed on the merits” of its claim that federal law pre-empts those provisions of the law she enjoined. She also held that “the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections.” Evidently, she contemplated no irreparable harm to the citizens and other lawful residents of Arizona; being murdered, having one’s property “liberated,” and having areas declared too dangerous to enter apparently do not constitute irreparable harm in her view.

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3 Responses to “Judge Grants Preliminary Injunction Against Arizona Immigration Statute”

  1. Dan Miller |

    According to this article,

    Soon after Judge Susan Bolton’s decision was announced, a spokesman for Arizona Gov. Jan Brewer said the state will appeal the ruling to the 9th U.S. Circuit Court of Appeals in San Francisco on Thursday, asking the appellate court for a swift decision to lift the injunction and allow the blocked provisions to take effect.

    Lots of luck, fellas.

  2. Tom Carter |

    Here’s a Washington Post editorial which states the pro-federal view of the case. As is usual on opinions expressed from the left on issues like this, they criticize people for being anti-immigrant and xenophobic. That simply isn’t valid. The vast majority of people who want the border controlled effectively and immigration laws enforced aren’t against all immigrants or xenophobic. This kind of dishonest argument doesn’t advance the discussion.

    I think there may be some reason to question the “any person” sentence quoted; it’s a bit less clear than it should be, although any reasonable person knows what it means. Problem is, laws are read in detail and closely parsed, especially when it comes to trials and lawsuits. On the larger question, though, I think this is the wrong outcome. Either the feds should leave states alone when they try to help enforce federal law (not preempt, but enforce) or they should start doing a better job of enforcing them from the federal level.

    If the case is appealed to the 9th Circuit, the judge’s decision will probably be upheld, given the liberal nature of that circuit. But who knows; a specific three-judge panel, if that’s how it’s heard, may act differently. In any event, this case is most likely headed for the Supreme Court, and that will be entertaining, at least.

    The Administration may be hopeful that their attack on Arizona will help them gain even more Hispanic votes in November and in 2012. However, this may backfire and mobilize even more votes against Democrats, particularly among law-abiding Hispanic immigrants and citizens.

  3. Dan Miller |


    Perhaps the sentence from the Arizona statute mentioned in your second paragraph could have been written better; the same is true of most sentences. However, it is the second sentence in a two sentence paragraph. Generally, the thoughts attempted to be conveyed in a single paragraph are related; otherwise, the paragraph should ordinarily be split. I seem to recall something about that from high school English classes. Strangely, this rather common understanding did not seem to enter into Judge Bolton’s mind.

    As I noted in the article, striking the second sentence probably does not matter much, since Judge Bolton also vitiated the first sentence, without which the second sentence would have been both stupid and pernicious.

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