Stephen Jones: United States Constitution 1, Arizona Zero

This is a post by contributing writer, Stephen Jones, who is a progressive political activist and a resident of Las Cruces, New Mexico.

For all of the spin we are likely to hear from politicians and their media spokespeople on the Cable TV outlets in the next few days, when the dust settles U.S. District Court Judge Bolton’s preliminary injunction (pdf) against the state of Arizona should be seen for what it is, the first step in wiping away the Grand Canyon state’s racist profiling law, S.B. 1070. For all intents and purposes most of Arizona’s illegitimate state legislation has fallen in its first Constitutional test. It seems destined to continue to do so.

Although the Justice Department and the Obama Administration were initially tardy in acting against Arizona, by attempting to negotiate with Arizona rather than immediately moving to block the S.B. 1070, Attorney General Eric Holder and the Justice Department are to be commended for finally doing the right thing and bringing this sorry chapter to a close. On Wednesday, Judge Bolton acted correctly in blocking the statute. S.B. 1070 is a violation of the 1st, 4th and 14th Amendments of the U.S. Constitution, along with Article I and Article VI.

Judge Bolton's Ruling
Blocked are all of the provisions of the law that would have led to racial profiling; and the requirement placed on local law enforcement to stop and demand proof of citizenship from those persons who they perceive to be in the United States “illegally.” Judge Bolton blocked the provisions of the statute that made it a crime for aliens to apply for or carry “alien registration papers.” She blocked the portions of the law that would jail American citizens for associating with non-citizens, and she blocked the provision that criminalizes the solicitation for work.

Other misguided provisions of the law that were blocked were the ability of individual citizens to sue police officers who they believed to be failing to enforce the statute or the power of police to issue a warrantless arrest of a person “where there is probable cause to believe they are ... removable from the United States.”

Judge Bolton also stated in her ruling, “The [p]ower to regulate immigration is unquestionably exclusively a federal power.” In other words, the Judge found that Federal immigration statute enforced under the supremacy clause of Article VI is the operative law that governs immigration in the United States, including the State of Arizona. The supremacy clause binds individual states to follow Federal statutes.

Left standing were provisions of the Arizona statute that say law enforcement must comply with Federal statute, and that part of the law that establishes a state misdemeanor for harboring and transporting illegal immigrants. These provisions are permitted under current Federal immigration law. 

Devastating Loss for GOP Gov. Brewer
While Arizona Governor Jan Brewer termed Judge Bolton’s ruling “a bump in the road,” in reality the “bump in the road” is a sweeping chasm.

Governor Brewer’s attempt at putting on a game-face aside, Judge Bolton’s ruling is a hammer blow at the illegal portions of Arizona’s attempted statute, and a near total loss for Brewer. Avenues left open to Governor Brewer and the Republican-led legislature of the State of Arizona are the judicial appeal process, which is likely, or the highly unlikely scenario in which the U. S. Congress would amend, and President Obama would sign, a statute amending current immigration law to accommodate Arizona’s S.B. 1070.

A Win for the U.S. Constitution
The Judge is to be commended for following the U.S. Constitution. No doubt her ruling will be appealed and the final resolution be found at the U.S. Supreme Court and, ultimately, in a Federal immigration reform statute.

State jurisdiction under the law is unaffected. Contrary to what Governor Brewer and the Republican Party would have us believe, the current Federal statute allows states to pass legislation that enforces Federal immigration statutes. Thirty four states currently have their own statutes governing immigration enforcement issues. What collapsed on Wednesday was an onerous, racist and unconstitutional statute. Also blocked, in all likelihood, are copycat laws working their way through the legislatures of Utah and other states.

The United States Constitution won on Wednesday. Arizona lost. Any who mistakenly believe some higher court will change the result are deluding themselves. Judge Bolton's 36-page ruling is sound.

Enact Comprehensive Immigration Reform Now
The time is now for the members of Congress to put demagogy aside and get to work and enact a new comprehensive immigration reform statute that governs the whole United States with fairness. We, as Americans, do not need racist state statutes and political fear mongering. We need real long-lasting and workable solutions to the ongoing immigration issues facing the United States. Let the negotiations begin.

Also see our previous post on this issue. To read more posts by Stephen Jones, visit our archive.