In setting forth her legal standards for her ruling, the Judge wrote, “The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers.” She also rightly cited the Supremacy Clause which makes those laws for which the Constitution grants the federal government priority “the supreme law of the land.” Few could disagree with her basis for federal preemption on this subject. Indeed, it is unnecessary to rely on the ambiguous and arbitrary “implied constitutional powers” regarding this power since the historical evidence is so clear that the main purpose of the union was to provide for a central government to regulate our dealings with those outside of our borders. The Federalist Papers cite this interest as one of the most significant benefits of the union.
But more must be said. Indeed, the Congress has the Power “To establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. One may rightly ask to what purpose or goal does Congress have this Power. To answer that question, it is necessary to return to the Preamble. The purpose or goal of Congress’ Power is to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” In light of this purpose or goal, Judge Bolton’s introduction to her order speaks volumes. The federal government is failing miserably in the execution of its Power.
Judge Bolton rightly sets for the traditional analysis for federal implied preemption based on the Supremacy Clause. (Federal Courts must infer Congresses intention to preempt state law when it does not expressly describe the areas of preemption.) In this regard there are two types of implied preemption: field preemption and conflict preemption. Field preemption occurs when the congressional scheme occupies the whole legislative field on the matter. Conflict preemption occurs when both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
One could quibble with Judge Bolton's analysis. For example, Section 3 makes a person who violates federal law by willfully failing to complete or carry an alien registration document guilty of a misdemeanor under Arizona law. The Judge observed that Section 3 attempts to supplement or complement the uniform, national registration scheme. In her analysis she wrote, “While the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens, the Supreme Court has also evaluated the impact of the comprehensive federal alien registration scheme and determined that the complete scheme of registration precludes states from conflicting with or complementing the federal law.” [Citations omitted] She then concludes that, “Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration.” Well, which is it? Is this field preemption or conflict preemption? And how does the supplement or complement of the Arizona law create an “obstacle” to the federal registration scheme?
The most telling part of the order is her treatment of Section 2(B). The first sentence of the section provides that “any person who is arrested shall have the person’s immigration status determined before the person is released.” The second sentence requires the detaining officer to make a reasonable attempt to determine the immigration status of the person. The federal government’s challenge to both sentences was similar. They made two arguments. First, since such inquiries will ultimately come to federal officials, the requirements impermissibly burden and redirect federal resources away from federally-established priorities.
Mr. Palmatier states in his Declaration that LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack, or exploitation.” (Palmatier Decl. ¶ 4.) Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities.
Second, the mandatory detainment would impermissibly burden the liberties of lawfully-present aliens. Based on these two arguments, the Court found that Section 2 created an obstacle to the enforcement of federal law.
I have no criticism of Judge Bolton on her holding in this case. Judge Bolton is bound to follow precedent of superior courts. She clearly attempted to follow the precedents set down. But I do have a critique of the analytical structure. Perhaps it is that the nation has lost sight of the purpose of our U.S. Constitution. Perhaps it has to do with the narcissism of the federal government, but the scope of the analysis distorts what should be considered.
Regarding the federal government's first argument, Judge Bolton clearly established in the open statements of her order that the federal government is responsible for defending the borders of these united states. She also clearly established that it is woefully failing in that responsibility. In essence, the federal government’s first argument is an argument on misfeasance bordering on malfeasance. Its argument is that it is incapable of fulfilling its obligation to enforce immigration laws due to its commitment to “other priorities.” While Mr. Palmatier detailed his commitment to these other priorities, I submit that the Court’s analysis was not broad enough. Clearly, defending the borders is at the core of the federal government’s responsibilities. If so, that responsibility is of its highest priorities. To divert resources to any priority other than defending the borders is a misallocation of resources, i.e. malfeasance. If the Court were to expand the scope of her analysis to the scope of the federal government’s activities, what would she find? She would find the federal government buying favor of certain segments of the population by means of welfare, food stamps, unemployment benefits, socialized healthcare, buying auto manufacturers, and deals to obtain votes on Obamacare from the Senators from the states of Louisiana, Arkansas and Nebraska. None of these activities fall anywhere near the core of the responsibility of the federal government. Malfeasance based on a perverted sense of federal priorities is now justification for federal preemption.
Regarding the federal government’s second argument, again, malfeasance has become an argument justifying federal preemption. It is the failure of the king to do his duty that brings burdens on the liberty of the country’s citizens and not the proper execution of those duties. Again, expanding the scope of the analysis helps in the analysis. The Power of the federal government extends to securing the borders and providing for proper naturalization. If the federal government fulfilled that purpose as described in the Preamble of the Constitution by on the first occasion keeping illegals out of the country, there would be no need to detain any legally present individuals. When the king fails in his proper duty we all suffer. The government failed to secure the borders on September 11. As a result, all citizens are now subjected to delays and searches when traveling by air. The government is failing to secure the borders today. As a result, the citizens of Arizona are subjected to increased crime and drugs as Judge Bolton has stated.
Misfeasance should never be a justification for federal preemption. The federal government has not only committed misfeasance. Our federal government has abdicated its responsibility to do those things which it has been directed to do by the U.S. Constitution and usurped authority it was never intended to have. And such conduct is used to justify their failure. And the people suffer.