Funny how the injuction doesn't seem to address the issue of "preemption"

Yeah you are very correct. Da people as they are continually victimised by criminal aliens and thier own government by it's inaction....The poles tell the tale....are pissed.

I'd like to see the judges involved tried for treason and hanged. Explain to me why I should care about the 'rule of law' when it is consistently used against my interests and contrary to the plain wording of it.

@Jehu

It's one of those amazing thing about our system of government that we don't accuse judges of treason or hang them when they do not rule in favor of the interests of a particular individual or group of people or even a particular political viewpoint. It could happen in some countries. You could move to one of them. As I understand it, they tend to have more people trying to get out than trying to get in.

Lemme see if I understand what happened. A fed judge has just ruled that a state law that pretty much mimics a federal law can't be enforced. And the feds aren't enforcing their version anyway. Anyone besides me see a problem here?

@neo - it does not appear that we have read the same court order, as it addresses preemption throughout.

@emdfl

It does not appear that you understand what happened. Having just read the 36-page order, as I'm sure you have before claiming to understand it, this is what appears to have happened:

The judge started off by explaning which provisions of the statute are being enjoined from enforcement and which are not. Almost all of the statute stands and is enforceable pending trial on the merits. Four narrow provisions are temporarily enjoined. She concludes this section by stating the legal basis of the injunction, viz., that the moving party is likely to succeed on the merits with regard to those provisions when the case is tried and the moving party would suffer irreparable harm if the court does not provide preliminary relief, as well as the tests of the balance of equities and public interest. This is the same standard used in any case.

In the next section, the judge provides a good overview of federal immigration law that is worthy of reading by a lot of people here and on other blogs who seemed to be confused by it. There is a good overview of the relevant portions of SB 1070.

The judge then gives a good explanation of why she cannot and will not enjoin all of SB 1070 as the Government moved.

Addressing each provision, she starts with Section 2(B), which does not mimic any federal law, but says that if someone who is stopped, detained, or arrested is suspected of being an unauthorized alien they have to have their immigration status determined before they are released. This places a substantial burden on both citizens and lawful aliens (citing Hines v. Davidowitz), as well as a burden on federal resources (citing Buckman Co. v. Plaintiffs’ Legal Comm.) forcing reallocation of resources from higher priorities directly related to national security. The judge then footnoted the possible 4th Amendment issues, but did not use them as the basis of her ruling.

With regard to Section 3, this also does not mimic federal law, but rather creates a separate state offense with state penalties for violating a federal law. This runs contrary to Hines in several ways as clearly set out. Not really a shocker. Preemption is pretty obvious and success at trial very likely.

With regard to their Section 4 challenge, the Government is not likely to succeed, because they are seeking to enjoin a section of the statute that was amended by Section 4 of SB 1070 but not the actual change brought about by Section 4. No injunction.

The injunction with regard to Section 5 involves the portion that criminalizes unauthorized aliens who attempt to get work or actually work. Again, this does not mimic federal law. Congress specifically did not impose criminal or civil penalties on employees when it chose to do so on employers. The judge ruled that because the Arizona statute conflicts with a comprehensive federal scheme, it is preempted.

The Government attempted two further injunctions with regard to Section 5 but did not succeed.

Section 6 of SB 1070 does not mimic federal law and provides that an officer may arrest a person without a warrant if the officer has probable cause to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States.” This would include any offense that might have been committed at any time outside of Arizona. The judge cites Justice Alito in Padilla v. Kentucky:

providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex. "Most crimes affecting immigration status are not specifically mentioned by the [Immigration and Nationality Act (INA)], but instead fall under a broad category of crimes such as crimes involving moral turpitude or aggravated felonies." M. Garcia & L. Eig, CRS Report for Congress, Immigration Consequences of Criminal Activity (Sept. 20, 2006) (summary) (emphasis in original). As has been widely acknowledged, determining whether a particular crime is an "aggravated felony" or a "crime involving moral turpitude [(CIMT)]" is not an easy task.

Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new A.R.S. § 13-3883(A)(5). By enforcing this statute, Arizona would impose a “distinct, unusual and extraordinary” burden on legal resident aliens that only the federal government has the authority to impose. Hines, 312 U.S. at 65-66.

The judge concluded her order with a detailed explanation of how the provisions she enjoined meet the standards for injunctive relief. This is set out in a clear and reasonable way.

emdfl, neither you nor other readers of this blog may like the ruling on the Motion for Preliminary Injunctions, but it is based in law and it has nothing to do with provisions that mimic federal law. If you wish to substantively disagree with my legal analysis, feel free to do so.

You offered no "legal analysis" Sol, you simply recounted what the judge said.

Judges opinions have no basis in law. They merely reflect the desires of the Ruling Class. The US Constitution does not confer on the federal government the sole power to regulate immigration. The entire constitutional mention of this topic is: "Congress shall have the power .. To establish an uniform Rule of Naturalization".

That's it. No mention anywhere of the theory that the states must treat illegal aliens the same as citizens. If Congress wishes to make the illegals all US citizens, it has the power to do so. But the federal government has no constitutional power to require Arizona to treat the illegals as if they were not illegals.

@flenser

You are probably right. "Legal analysis" may be an incorrect characterization. Perhaps it would be better to say that I parsed out what the judge said and put it in lay terms to help those who may have only heard rhetoric and not actually read the decision. It might help someone otherwise stuck in this "Arizona only mimics federal law so what's the problem" nonsense.

To say that judge's opinions have no basis in law is a rather bizarre statement, as this is at the heart of our concept of jurisprudence. Others (including other judges, particularly those sitting in appellate courts) may disagree with a particular judge's application of the law, but that doesn't mean it has no basis in law. Judge Bolton's order cites statutes, precedent, and persuasive authority.

Your proposition that they merely reflect the desires of the ruling class is no different that saying Congress is in the hands of special interest groups or the rich who fund their elections so the laws they pass have no basis in law.

That the Constitution does confer the sole power to regulate immigration has been clear since at least Fong Yue Ting v. United States (1893), though it was implied earlier in The Chinese Exclusion Case (1889).

Judge Bolton's order does not say that states must treat illegal aliens the same as citizens. It says that legal aliens have certain rights and protections and that relevant portions of SB 1070 place an undue burden on those.

You are correct that federal government has no constitutional power to require Arizona to treat illegals as if they were not illegals. No branch of the federal government has required that Arizona do so. The federal government has only said that Arizona does not have the right to determine how illegals are treated.

The thing that bothers me is that a governing body, such as Fremont Neb. and the state of Arizonia, passes a law that is struck down by a judge that basis an opinion on arguments that are not concerned with the law.

None of the Arizona law has been struck down. Four specific provisions have been temporarily enjoined from enforcement pending the outcome of the case.

bman, from your reading of the order, which aspect of the opinion or the arguments on which it is based are not concerned with the law?

In the Fremont case, the judge has not issued any rulings and hasn't even decided if federal court is the proper venue for the case. The parties have two weeks to file briefs on the venue issue before she even rules on that. Seems like you are jumping the gun a bit on this one.

I would suggest reading the appropriate articles contained on The Corner on the NRO site, and the opinion of William Jacobson at Legal Insurrection.
The Heritage foundation also has some interesting opinions on the decision.

Yes these are considered right wing radical blog sites, but they do reflect the thinking of a lot of people.

I couldn't find anything on The Corner, so post a link please. The only thing I found from the NRO was a editorial that only addressed the first of the provisions enjoined. The Editors didn't bother to make fun of the other three.

William Jacobson says he cannot blame the judge for striking some of the provisions on SB 1070 (even though she didn't strike anything - just temporarily enjoined - but it is a hint of what her final ruling will be). Otherwise, I don't see anywhere that Jacobson contradicts what I have written in this thread.

I only found one Heritage Foundation article on the ruling that also only addresses the injunction with regard to Section 2(B). Nothing about the other three provisions enjoined.

I haven't commented on whether Judge Bolton made a good decision in every aspect of her order, or whether it is the correct thing to do in terms of what a lot of people would like to see happen. The only value judgment I made was that it was clear and reasonable. That doesn't mean that other people (whether appelate judges or not) can't disagree with her reasoning.

I wouldn't consider NRO, William Jacobson, or Heritage Foundation particularly radical. They are certainly political, which they are entitled to be. Except with regard to the subject of immigration a lot of people would consider me a right-wing radical. They are entitled to do so and I'm entitled to be whatever I want to be.

Even though they often do not fulfil this obligation, judges are to be above politics, take the law as it is, and rule upon it. I just explained what the ruling was, both in commenting here and in writing on my own blog. From reading the other blogs and sites to which you referred, it appears that at least I have explained all of the provisions of order and not just picked one and railed against it.

To say that judge's opinions have no basis in law is a rather bizarre statement

So if a judge says that an unconstitutional law is constitutional, or that a constitutional law is unconstitutional, that has some "basis in law" according to you, on the grounds that a judge said it? Judges are supposed to be the servants of the law, not its masters. Your view of the law is the rather left-wing one of a lawyer.

Your proposition that they merely reflect the desires of the ruling class is no different that saying Congress is in the hands of special interest groups or the rich who fund their elections so the laws they pass have no basis in law.

And your point is?

That the Constitution does confer the sole power to regulate immigration has been clear since at least Fong Yue Ting v. United States (1893)

a) Supreme Courts rulings do not and cannot alter the Constitution. The Constitution confers no such power on the Federal government, and nothing which any judge or group of judges says can alter that.

b) Nobody in this case is challenging the power of Congress to "regulate immigration". Congress has the power to grant US citizenship to all the illegals. But "regulating immigration" is not what this case is about. As long as they're illegal, they are outside of the Congressional power with respect to immigration.

c) Fong Yue Ting v. United States is a funny example for you to cite. In that case Congress really was "regulating immigration". In other words, it is the exact opposite of what Congress is doing at present.

The federal government has only said that Arizona does not have the right to determine how illegals are treated.

In saying that, the Federal government is at odds with the Constitution, which confers no unique power over illegals to the Feds. And I notice you don't even try to argue that it does, preferring your usual tack of argument by assertion. Cite me the Constitutional basis for your position or else drop it. And by "Constitutional basis" I mean cite the Constitution, not some court opinion.

Now, it is true that the individual states cannot make up their own rules for how legal non-citizen immigrants can be treated. Such people are in a sense the guests of the Feds. But illegal aliens are criminals, outlaws, outside the law. They are not in fact "immigrants" at all in the legal sense, and therefore arguments about the power of the Feds to make law concerning the treatment of real immigrants have no bearing on the matter.

So if a judge says that an unconstitutional law is constitutional, or that a constitutional law is unconstitutional, that has some "basis in law" according to you, on the grounds that a judge said it? Judges are supposed to be the servants of the law, not its masters. Your view of the law is the rather left-wing one of a lawyer.

Interesting how you assume all lawyers are left-wing. It appears to be a profession you do not hold in great esteem.

Yes, if a judge says a law is constitutional or not, then that is what it is. That's the way the system works. There is a structure of appeals to change it, if the judge is wrong or if those appellate judges take a different view. This is true whether one takes strict contructionist or loose constructionist view of the Constitution. At both the trial and appellate levels, strict constructionist judges may take different approaches from loose constructionist judges in determining whether a law is constitutional, but regardless of their judicial and constitutional philosophy, the job it the same, as it is force in law of the resulting opinion.

It has a basis in law on the grounds that when the judge says it, the judge does by citing the law that supports the judge's decision. An appellate panel may think there is a better basis for a different decision and thereby give the better basis precedent value which the trial judge may be instructed to apply if there is a need to remand the case and future trial judges will use to base future decisions on similar sets of facts. Of course since ours is an adversarial system and no two sets of facts are the same, it is the role of the judge to distinguish between different precedents to apply those which fit best. And of course it is then the role of an appellate court to agree or disagree and establish further precedent.

I don't know why I should to teach you Law 101, because you've already decided what makes the law the law and what makes it constitutional or not in Flenster-World, which only has one document and no lawyers.

>>Your proposition that they merely reflect the desires of the ruling class is no different that saying Congress is in the hands of special interest groups or the rich who fund their elections so the laws they pass have no basis in law.

And your point is?

We may not like the system, but it is what it is. I suggest you find and break a federal law you don't like and then explain to the judge that it wasn't really law because it was passed by a Congress in the hands of special interest groups and rich people.

a) Supreme Courts rulings do not and cannot alter the Constitution. The Constitution confers no such power on the Federal government, and nothing which any judge or group of judges says can alter that.

Supreme Court rulings interpret and apply the Constitution. The Supreme Court has been doing this from the very beginning. And the amazing thing is that despite your protestations, every government at every level in the United States is going to follow what a judge or group of judges says they can or cannot do.

b) Nobody in this case is challenging the power of Congress to "regulate immigration". Congress has the power to grant US citizenship to all the illegals. But "regulating immigration" is not what this case is about. As long as they're illegal, they are outside of the Congressional power with respect to immigration.

The issue is the exclusive power to regulate immigration. Immigration does not just have to do with naturalization. If someone is present within the borders of the United States, regardless of their civil status in relationship to any other sovereign state, they are within the power of Congress with regard to whatever their status is in the United States. To suggest that they are not subject to the federal government because the federal governmnet has not issued them with documents is patently ludicrous.

c) Fong Yue Ting v. United States is a funny example for you to cite. In that case Congress really was "regulating immigration". In other words, it is the exact opposite of what Congress is doing at present.

This is a nonsense statement.

Federal government is at odds with the Constitution, which confers no unique power over illegals to the Feds. And I notice you don't even try to argue that it does, preferring your usual tack of argument by assertion. Cite me the Constitutional basis for your position or else drop it. And by "Constitutional basis" I mean cite the Constitution, not some court opinion.

The federal government does not need a unique power over those who are in the United States without the permission of the government. It is not the government's grant of permission that gives the government power over them. It has inherent power by the very nature of its sovereignty.

This can be contrasted with the fact that you do not have inherent power to demand that I offer you a particular citation or else cease to discuss a particular matter. If you are dissatisfied with my understanding of Constitutional jurisprudence you can choose to no longer discuss it with me and frankly I shall not loose any sleep over that outcome.

Now, it is true that the individual states cannot make up their own rules for how legal non-citizen immigrants can be treated. Such people are in a sense the guests of the Feds. But illegal aliens are criminals, outlaws, outside the law. They are not in fact "immigrants" at all in the legal sense, and therefore arguments about the power of the Feds to make law concerning the treatment of real immigrants have no bearing on the matter.

I cannot imagine where you get the legal basis for this argument. Anyone who was previously domiciled in one country and changes that domicile to another country is an immigrant. That's what the term means. It doesn't matter whether they change that domicile with the permission of, or at the invitation of, the country to which they move. They may be forced to change their domicile back to the first country as a result of not having permission from the second country, but whether or not someone is an immigrant is soley a matter of their intent.

That a person has committed a crime does not make them outside the law. That is ridiculous. They are subject to the law or else they could not be sanctioned under it. As such they are also entitled to the civil rights protections of the law. It makes no sense to say that only the federal government can tell people they can live in the United States, but any political subdivision can tell them they must leave the United States.

It makes no sense to say that only the federal government can tell people they can live in the United States, but any political subdivision can tell them they must leave the United States.

You are a remarkably dishonest person. It makes perfect sense in the case of people who the the federal government has never given permission to live in the Unites States to. Your statement insinuates that the federal government told them they can live here and the states are trying to expel them.

whether or not someone is an immigrant is soley a matter of their intent.

That's not the legal definition of "immigrant". There is no basis in law for describing somebody as an "immigant" simply for "intending" to be one. After all, you've been arguing up till now that Congress has the sole power over immigration - all of a sudden it is the sole decision of the would-be "immigrant"?

I've looked in the Immigration and Nationality Act of 1952 and its subsequent modifications, and I don't see your definition there. Care to cite the relevant section?

I repeat - Congress has the power to grant US citizenship to the illegal aliens, or to give them some other sort of legal status. Until it does so they remain illegal aliens and are not in any sense "immigrants". Since they are not immigrants they are not covered under the power of Congress to regulate immigration.

That a person has committed a crime does not make them outside the law.

The fact that a person is not an immigrant does mean that they are not covered by laws pertaining to immigrants.

you do not have inherent power to demand that I offer you a particular citation or else cease to discuss a particular matter.

In other words you are incapable of locating any part of the US Constitution which supports your position, but you're not going to let that minor impediment get in your way. Thanks for clearing that up.

If someone is present within the borders of the United States, regardless of their civil status in relationship to any other sovereign state, they are within the power of Congress with regard to whatever their status is in the United States.

Congress certainly has the power to grant these "someones" a legal status within the United States. In truth Congress can grant that status even to people outside the United States. But with respect to the people in question here, Congress has not done so. In fact Congress has done the opposite - it has passed laws which exclude illegal aliens from normalized status within the US, which make illegal aliens illegal.

In point of fact Congress is not on your side on this matter, it's on mine. The branch of the Federal government which is seeking to grant de-facto legal status in America to illegal aliens is not Congress, but the executive branch. It is the executive branch which is defying the law written by Congress and not the state of Arizona. And the executive branch has no legal authority to do such a thing.

Your position is not a defense of Congressional power, it is a defense of executive privilege. You are arguing that if the President chooses not to enforce the law Congress has passed, the states may not do so either. That position is legal garbage.

That's not the legal definition of "immigrant". There is no basis in law for describing somebody as an "immigant" simply for "intending" to be one. After all, you've been arguing up till now that Congress has the sole power over immigration - all of a sudden it is the sole decision of the would-be "immigrant"?

I've looked in the Immigration and Nationality Act of 1952 and its subsequent modifications, and I don't see your definition there. Care to cite the relevant section?

8 USC §1101(a)(15)

The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens— and you can read sub-sections A through V, just as I have done tonight, and you will see that entering the US without the proper documentation is not excepted. You will also see that the statute repeatedly refers to "an alien having a foreign residence which the alien has no intention of abandoning" as one of the criteria for most of the exceptions (the few instances when it is not involve spouses of citizens and children of spouses of citizens, and a few bits like that). That is because it is settled in law from time immemorial that whether one is an immigrant, that is, one has established a domicile in another country, is dependent upon the intention of abandoning the previous domicile.

Even in defining the term for the purposes of a specific statute (not defining the term for all legal purposes), the universal definition of the plain meaning of the term is applied.

Your grasp of the most basic concepts of law and jurisprudence can be equated to fingernails on the edge of a precipice. Nonetheless you cannot but involuntarily attempt to attack the hand that tries to pull you up and set you on solid ground.

I repeat - Congress has the power to grant US citizenship to the illegal aliens, or to give them some other sort of legal status. Until it does so they remain illegal aliens and are not in any sense "immigrants". Since they are not immigrants they are not covered under the power of Congress to regulate immigration.

You can repeat it all you want. Just keep clicking your heels while saying, "There's no place like home. There's no place like home." Even if somehow they were not defined as immigrants under the statute, your legal argument holds no water. However, the definition is there in 8 USC §1101(a)(15). Therefore by using your own reasonsing, since the statute defines them as immigrants, they are covered under the power of Congress to regulate immigration. They would be covered anyway, but frankly it's satisfying to see you hoisted by your own petard, even if you lack cognisance of both the hoisting and the petard. (This satisfaction is no doubt terribly unchristian of me, but since you have already adjudged me elsewhere as not much of a Christian - if even a Christian at all - adjudged with about the same level of theological expertise as your legal expertise - surely this doesn't come as a surprise to you.)

The rest of what you have written is such complete and utter nonsense, to use the technical legal term for it, it wouldn't even make sense to try to respond to it. Please be clear on this. I am not conceding to your arguments. One cannot concede to codswallop.

Sorry Sol that you can't find the Corner on the NRO blog site. I will, even after reading more discussion and evaluation, continue to express my concern that the central government can and will either through the power of the courts or the power of money disenfranchise the voters of their right to determine policy. You remember the old SDS slogan "Power to the People"

bman, I have now gotten the Corner to load properly and have read Andy McCarty and Heather Mac Donald on the Bolton ruling. I agree with Heather that section 3 does potentially pose some problems.

I think Andy is a little off on the idea that Congress in concerned with law and the Executive branch with politics and his statement that we are a body politic and not a body legal. I understand the point he is ultimately trying to make that the more it looks like a political battle between Arizona and Obama, Obama is left politically exposed, so Obama wants to couch the battle in terms of the law. I think that's a pretty fair observation.

My point is that the judge's ruling is couched in law. Both McCarty and I agree that this is why the administration brought the suit. McCarty thinks it is bad law. I think it is a bit of a mix. I think both are reasonable conclusions - there is plenty of room for reasonable minds to differ on the law, even as there is to differ on the politics.

My original reason for commenting on this thread was not to approve or disapprove of Bolton's ruling, but rather to dispel the misconceptions about it that Neo, Jehu and emdfl appeared to entertain.

because its unforced action engages the helping presences of the Tao—the force of Nature that make things happen, and endure. These presences are what the I Chi  Keep an eye out for trouble,¡¡¡¡And you invite it in.¡¡¡¡Make wealth your sole objective¡¡¡¡And your heart will grow rigid as ice.¡¡¡¡Let fame define you¡¡¡¡And  ing the Cosmic rhythm. ¡¡¡¡We have a phrase in vernacular English for what Lao Tzu is describing here: it is called "paralysis by analysis." Nothing so stiffens  s from this saturation of thought is a kind of hypervigilance and obsessive doubt known in both medical and popular pathology as paranoia. We run the same destr   destiny. The correction to all of this is direct and immediately available: we can step off the treadmill and renounce the expectations that have been burned i   paranoia, this constant, fearful referencing of experience and phenomena to the bizarre self-interest of a solipsistic world-view. The foundation of this world