The most reactionary conservatives, many of them clutching unread copies of the US Constitution, are already screaming about the decision of Arizona Federal Judge Susan Bolton to block immediate implementation of central components of the state’s new anti-immigrant laws.
Specifically, Bolton blocked provisions what the American Civil Liberties Union describes as the "key provisions of Arizona’s racial profiling law," including:
— the requirement that police officers investigate the immigration status of all individuals they stop if the officers suspect that they are in the country unlawfully;
— the mandatory detention of individuals who are arrested, even for minor offenses that would normally result in a ticket, if they cannot verify that they are authorized to be in the United States;
— the new statute imposing state criminal penalties for non-citizens failing to register with the Department of Homeland Security or failing to carry registration documents;
— the provision for warrantless arrest of individuals who are deemed by state or local police officers to be "removable" from the United States.; and
— the new state statute making it a crime for alleged undocumented immigrants to work.
That’s not the whole law, some elements of which will begin to be implemented as soon as today. The legal wrangling will continue.
But, as Janet Murguía, president and CEO of National Council of La Raza (NCLR), says: "Not only did the judge side with the Latino community, she sided with the Constitution. This is an unequivocal victory. The ruling enjoins the crux of the law that would have legitimized racial profiling."
While terms like "unequivocal victory" sound sweeping, all that Bolton really did was to assert one of the most basic principles of Constitutional law: that the federal government gets to set immigration policy.
This is not complicated stuff.
Article 1, Section 8 of the document gives Congress the authority "to establish an uniform Rule of Naturalization."
This is not some totalitarian scheme hatched by James Madison and George Mason back in 1787.
It was one of the most practical things the founders did.
For any country, especially any large country, there has to be basic uniformity with regard to questions of who gets to enter the country and how. That does not mean that the federal govermment has done a good job of setting immigration policy—in recent years or, for that matter, historically. in fact, if there is one position that unites Democrats and Republicans, conservatives and liberals, Obama backers and Tea Partisans, it is that Congress needs to get serious about developing comprehensive immigration reforms. Unfortunately, there is less agreement on how those reforms might operate in a humane and functional manner. And that has created a stalemate.
It may be that the controversy regarding the Arizona law will break the stalemate in Washington.
But this does not justify the development of fifty separate-and-unequal state immigration laws. As Hannah August, a spokeswoman for the Justice Department, explained it late Wednesday: "While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement."
That is what the Justice Department argued when it asked Judge Bolton to intervene.
That is what Judge Bolton found, when she determined that it was likely the nation’s courts would uphold the view that the Arizona statute was written in a way that would interfere with federal law and policy.
A desire to prod the federal government—especially when that desire is manifested by officials facing tough election fights—does not justify states grabbing powers that the Constitution rests with Congress. "A single state’s frustration with federal policy cannot be allowed to hijack federal authority or dictate federal priorities in ways that impede effective law enforcement, threaten the rights of citizens and non-citizens alike and violate core American values," explains ACLU executive director Anthony Romero.
And frustration certainly does not justify allowing one state—Arizona—to create a law that leaves state and local law enforcement officers no choice but to engage in racial and ethnic profiling. "This is a first step toward a victory for civil liberties in Arizona," says Alessandra Soler Meetze, the ACLU’s Arizona director. "We eagerly anticipate proving to the court that this reactionary racial profiling law violates the Constitution so we can begin the real work of crafting practical solutions that address our nation’s immigration concerns rather than violate fundamental American values."
That sort of profiling is an affront to the most basic premises of a Constitution that guarantees equal protection under the law.
Bolton found that the Arizona law created a "substantial likelihood that officers will wrongfully arrest legal resident aliens" and that it would increase "the intrusion of police presence into the lives of legally present aliens (and even United States citizens), who will necessarily be swept up" by it.
That is not the statement of a "judicial activist."
It is a restatement of basic premises with regard to the Constitution.
What this tells us is that Judge Bolton is a strict constructionist.
You might even call her a conservative.