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By Attorney Jonathan Emord
Author of "The Rise of Tyranny"
July 29, 2010

Judge Bolton’s Decision Invalidating Parts of New Arizona Immigration Law Should Be Overturned

The central premise of Judge Bolton’s decision enjoining four parts of Arizona’s immigration law 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 standards used 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 contributing to drug and human trafficking and other serious crimes within the state.

The Judge held the following four parts of the statute unlawful encroachments on federal immigration law, based on the doctrine of pre-emption:

(1) the requirement that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained, or arrested on other grounds if there is a reasonable suspicion 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 2 of SB 1070);

(2) the creation of a new state crime in support of federal law that requires application for and carriage 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 unauthorized alien 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 believe the 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 substantial burdens on lawful immigrants, exposing them to inquisitorial practices and police surveillance and (2) will impose a significant increase in costs on federal authorities contacted concerning suspected illegals detained, thus distracting the federal government from pursuing other immigration law enforcement priorities. She had no specific proof in the record to support either of these hypothetical propositions and yet throughout the decision presumes them to be true.

The suit brought by the Obama Administration against the law is a pre-enforcement or facial challenge. Because the challenge occurs before the law is implemented, the Supreme Court has required that “the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). In particular, 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 validly enforced and, so, the pre-enforcement challenge standard has not been satisfied. It is counterintuitive to assume that a person detained on probable cause of the commission of a crime, like, for example, murder, who is found not to be in this country lawfully would through his arrest either unduly burden lawful immigrants or impose undue burdens on federal authorities, particularly because just such a person is removable from this country under federal law. Rather, legal immigrants, like all Americans, are best protected when such individuals are prosecuted.


It is counterintuitive to assume that a law focused on enforcing the federal requirement that alien 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 be implementing that very legal requirement. Indeed, we have to stretch our imaginations in a mighty way to presume that such a law would be wrongly applied to a legal immigrant or would generate such an enormous quantity of referrals to the feds that they would be overwhelmed by them (particularly because the feds now routinely ignore state referrals on all manner of illegal immigration issues; there is nothing requiring them to take the new referrals any more seriously).

It is counterintuitive to assume that a state law that supports federal law prohibiting employment 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 would reach a lawful immigrant. Moreover, the feds are burdened only if they choose to implement federal law (but that is their pre-existing duty and should not be considered cognizable as a new or added burden).

It is counterintuitive also to assume that a law that makes it a crime to commit an offense that makes a person removable from the United States under federal immigration law either burdens 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 is removable. It is entirely within federal discretion to deem a person not removable, or to ignore 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 government actions against illegal aliens involved in drug trafficking, human trafficking, or smuggling of illegal goods. They do, every day. In this environment, the Arizona law is neither new nor exceptionally burdensome. It certainly does not obstruct federal immigration law.

Finally, nothing in the law authorizes or condones racial profiling or discrimination against legal immigrants. This new law is comparable to many others that aid federal law enforcement, only now due to political pressure from President Obama has the Department of Justice chosen to single out the Arizona law for strained arguments that it obstructs or modifies federal immigration law. It was a mistake to buy into those arguments without either a basis in fact or logic to support them and with ample examples of enforcement that would not be unlawful.

In the end, whether this law exists or not, the ultimate test of discriminatory enforcement of the law lies not in a facial challenge but in proof in an individual case that police have abused their discretion and violated an individual’s rights. Undoubtedly there will be, as there have been in the past, instances where local police will violate the rights of the innocent, abuse them, and do so based on motives that are reprehensible in any civilized society. The law must 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 the dignity they deserve. Nevertheless, we cannot presume in the middle of a crisis where innocent victims of crimes spawn by alien drug traffickers and murderers have become daily headlines that law enforcement will violate the rights of innocents in their pursuit of those who 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 acts—the area of greatest threat to the lawful inhabitants of Arizona, legal immigrants and people born in the United States. By enjoining four key provisions of the Arizona law, Judge Bolton has hampered reasonable efforts to protect the lawful residents of Arizona from crime and abuse.

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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 law enforcement to protect Arizona’s citizens against crimes spawn by illegal immigrants and Maricopa County Sheriff Joe Arpaio will continue his efforts to stem the tide of illegal immigration.

� 2010 Jonathan W. Emord - All Rights Reserved

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Jonathan W. Emord is an attorney who practices constitutional and administrative law before the federal courts and agencies. Congressman Ron Paul calls Jonathan “a hero of the health freedom revolution” and says “all freedom-loving Americans are in [his] debt . . . for his courtroom [victories] on behalf of health freedom.” He has defeated the FDA in federal court a remarkable seven times, six on First Amendment grounds, and is the author of Amazon bestsellers The Rise of Tyranny, and Global Censorship of Health Information. For more info visit













It is counterintuitive also to assume that a law that makes it a crime to commit an offense that makes a person removable from the United States under federal immigration law either burdens lawful immigrants or federal law enforcers.