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Did anyone… ANYONE doubt this would happen?

No matter what a law says, no matter what its basis, liberals can always shop a federal judge somewhere who will decree the leftist viewpoint.  That’s what has happened to the Arizona law that makes it illegal to be an illegal alien in Arizona.

This judge was first recommended to the feddle bench by Republican John Kyl, nominated by Democrat Bill Clinton, and confirmed by the Republican Senate in 2000.  And now you have one more reason to recognize that solution to too many Democrats is not more Republicans.

You can read the text of the decision here.  The decision hinges on the notion of “irreparable harm” coming to the United States if Arizona laws preempt federal law.  The judge assumed, without saying so, that if Arizona has a law on a subject where the federal government has jurisdiction, then the principle of federal preemption has been nullified.  This goes against the supremacy clause and so is unconstitutional, she said.

The flaw in her argument is that the Arizona law does not preempt federal law, but rather is subordinate to it and complements it.  Arizona did not take to itself the ability to judge matters of immigration or deportation, only to make the arrest if an illegal alien is detected.  Once the arrest is made, the person is given into federal custody.  Hence, there is no preemption at all.  The judge is, to be as charitable as possible, mistaken on this point.

The only fair construction that can be put on this decision is that states may not take action which has the effect of pressuring the feds to do their job.  If Arizona arrested a few thousand invaders and turned them over to the Department Homeland Security, then DHS would have to DO something with them.  If it deported them, that would enact conservative policy.  It’s hard to resist the suspicion that preventing that outcome is the driving force behind this poor decision.  If DHS did NOT deport them, then the government would be politically vulnerable and might open itself up to a lawsuit from Arizona.  Thus the judge has, in effect, stated that Arizona’s only recourse in the face of massive dereliction by the feds is to use its congressional delegation to plead for redress.  The state itself is forbidden to deploy any enforcement powers — even if those powers were expressly subservient to federal authority.

By the way, there are many state laws which address areas where the federal law has jurisdiction.  Many kinds of illicit drugs, for example, are illegal under both state and federal laws.  The feds have never argued for preemption in those cases.  They should not be allowed to get away with arguing for preemption in this case, either.

otherbrothersteve@gmail.com

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