Jonathan Emord - Judge Bolton Invalidates Part of Arizona Law

8/9/2019 Jonathan Emord - Judge Bolton Invalidates Part of Arizona Law

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Jonathan Emord Judge Bolton Invalidates Part of AZ Immigration Law

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JUDGE BOLTON INVALIDATES PART OFARIZONA'S IMMIGRATION LAW

Author: Attorney Jonathan EmordAuthor of "The Rise of Tyranny"date: July 29, 2010http://www.newswithviews.com/Emord/jonathan145.htm

Judge Boltons Decision Invalidating Parts of New Arizona Immigration LawShould Be Overturned The central premise of Judge Boltons decision enjoining four parts of Arizonas immigrationlaw rests on the faulty premise that the state law violates the doctrine of federal pre-emption.The law, however, is in aid of federal immigration law and neither obstructs nor increases

penalties for immigration law violations. Moreover, it does not attempt to alter the standardsused by the federal government in determining who is legally resident in this country. Indeed,the Arizona law is in aid of domestic law affected by illegals in Arizona who are contributingto drug and human trafficking and other serious crimes within the state.The Judge held the following four parts of the statute unlawful encroachments on federalimmigration law, based on the doctrine of pre-emption:(1) the requirement that an officer make a reasonable attempt to determine the immigrationstatus of a person stopped, detained, or arrested on other grounds if there is a reasonablesuspicion that the person is unlawfully present in the U.S. and that a person arrested be

required to show proof of lawful immigration status prior to being released (Part of Section 2of SB 1070);(2) the creation of a new state crime in support of federal law that requires application for andcarriage of alien registration papers (Section 3 of SB 1070);(3) the creation of a new state crime in support of federal law that prohibits an unauthorizedalien from soliciting, applying for, or performing work (Part of Section 5 of SB 1070); and(4) the authorization of warrantless arrest of a person where there is probable cause to believethe person has committed a public offense that makes the person removable from the United

States under federal immigration law (Section 6 of SB 1070).

The Judge operates on two assumptions, that the Arizona law (1) will impose substantialburdens on lawful immigrants, exposing them to inquisitorial practices and policesurveillance and (2) will impose a significant increase in costs on federal authorities contactedconcerning suspected illegals detained, thus distracting the federal government frompursuing other immigration law enforcement priorities. She had no specific proof in therecord to support either of these hypothetical propositions and yet throughout the decisionpresumes them to be true.


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The suit brought by the Obama Administration against the law is a pre-enforcement or facialchallenge. Because the challenge occurs before the law is implemented, the Supreme Courthas required that the challenger must establish that no set of circumstances exists underwhich the Act would be valid. United States v. Salerno, 481 U.S. 739, 745 (1987). Inparticular, the Court is not to base its decision on hypothetical or presumed cases.

We certainly can conceive of instances in which each of the four provisions would be validlyenforced and, so, the pre-enforcement challenge standard has not been satisfied. It iscounterintuitive to assume that a person detained on probable cause of the commission of acrime, like, for example, murder, who is found not to be in this country lawfully wouldthrough his arrest either unduly burden lawful immigrants or impose undue burdens onfederal authorities, particularly because just such a person is removable from this countryunder federal law. Rather, legal immigrants, like all Americans, are best protected when suchindividuals are prosecuted.

It is counterintuitive to assume that a law focused on enforcing the federal requirement thatalien residents file applications for, and carry proof of, alien registration is somehow

burdensome to lawful immigrants or to federal law enforcers who are supposed to beimplementing that very legal requirement. Indeed, we have to stretch our imaginations in amighty way to presume that such a law would be wrongly applied to a legal immigrant orwould generate such an enormous quantity of referrals to the feds that they would beoverwhelmed by them (particularly because the feds now routinely ignore state referrals onall manner of illegal immigration issues; there is nothing requiring them to take the newreferrals any more seriously).It is counterintuitive to assume that a state law that supports federal law prohibitingemployment of illegal aliens would harm lawful immigrants or burden federal law enforcers.The state law on its face aims at illegal aliens, thus only a wrongful application of it wouldreach a lawful immigrant. Moreover, the feds are burdened only if they choose to implementfederal law (but that is their pre-existing duty and should not be considered cognizable as anew or added burden).It is counterintuitive also to assume that a law that makes it a crime to commit an offense thatmakes a person removable from the United States under federal immigration law eitherburdens lawful immigrants or federal law enforcers. It is in aid of federal law enforcement,and the feds have the final say so under this state law concerning whether the person isremovable. It is entirely within federal discretion to deem a person not removable, or toignore the state request for a determination.The decision tacitly presumes that states do not presently aid federal law enforcement

through referrals of suspected illegal immigrants and in support of federal governmentactions against illegal aliens involved in drug trafficking, human trafficking, or smuggling ofillegal goods. They do, every day. In this environment, the Arizona law is neither new norexceptionally burdensome. It certainly does not obstruct federal immigration law.Finally, nothing in the law authorizes or condones racial profiling or discrimination againstlegal immigrants. This new law is comparable to many others that aid federal lawenforcement, only now due to political pressure from President Obama has the Department ofJustice chosen to single out the Arizona law for strained arguments that it obstructs or


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modifies federal immigration law. It was a mistake to buy into those arguments without eithera basis in fact or logic to support them and with ample examples of enforcement that wouldnot be unlawful.In the end, whether this law exists or not, the ultimate test of discriminatory enforcement ofthe law lies not in a facial challenge but in proof in an individual case that police have abused

their discretion and violated an individuals rights. Undoubtedly there will be, as there havebeen in the past, instances where local police will violate the rights of the innocent, abusethem, and do so based on motives that are reprehensible in any civilized society. The lawmust punish such police severely and provide ways to compensate victims for the harms,recognizing that compensation can never restore fully the respect for autonomy and thedignity they deserve. Nevertheless, we cannot presume in the middle of a crisis whereinnocent victims of crimes spawn by alien drug traffickers and murderers have become dailyheadlines that law enforcement will violate the rights of innocents in their pursuit of thosewho threaten lives and property.Faced with a monumental emergency, Arizona has taken prudent steps to equip its law

enforcement officers with authority to help stem the tide of illegal immigration into the state.It has done so where that illegal immigration involves additional illegal actsthe area ofgreatest threat to the lawful inhabitants of Arizona, legal immigrants and people born in theUnited States. By enjoining four key provisions of the Arizona law, Judge Bolton hashampered reasonable efforts to protect the lawful residents of Arizona from crime and abuse.

We should hope that on appeal the Ninth Circuit overturns this decision. If it does not,however, you can be sure that Governor Jan Brewer will push for new laws to enable state lawenforcement to protect Arizonas citizens against crimes spawn by illegal immigrants andMaricopa County Sheriff Joe Arpaio will continue his efforts to stem the tide of illegalimmigration.

Jonathan W. Emord is an attorney who practices constitutional and administrative lawbefore the federal courts and agencies. Congressman Ron Paul calls Jonathan a hero of thehealth freedom revolution and says all freedom-loving Americans are in [his] debt . . . forhis courtroom [victories] on behalf of health freedom. He has defeated the FDA in federalcourt a remarkable seven times, six on First Amendment grounds, and is the author ofAmazon bestsellers T h e R i s e o f T y r a n n y , and Globa l Censo rsh i p o f Hea l t hI n f o r m a t i o n . For more info visit Emord.com.Website: Emord.comE-Mail:[email protected]

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Jonathan Emord - Judge Bolton Invalidates Part of Arizona Law