More Thoughts on the AZ Immigration Ruling

A few more thoughts on Judge Bolton’s ruling in the Arizona immigration case.  As noted below, on Wednesday Judge Bolton issued a preliminary injunction blocking several key provisions of Arizona’s law from taking effect on the grounds that the federal government is likely to succeed in arguing that some of its provisions (but not others) are preempted by federal law. Arizona will appeal.

As Orin noted, Bolton held these provisions are preempted by federal law, not that Arizona’s law is discriminatory or otherwise unconstitutional.  The Court could have held that portions of Arizona’s law intrude upon the federal government’s exclusive authority over immigration, but it did not.  Indeed, it explicitly rejected this argument with regard to portions of the law, as it rejected the federal government’s dormant commerce clause argument.  Instead, where the court found preemption, it was based upon actual or potential conflict with federal law and policy.

The specific preemption arguments accepted by the court appear to be quite broad, and it is unclear whether they are confined to the immigration context.  Among other things, the court found portions of Arizona’s law are preempted insofar as the impose an administrative burden upon federal agencies, such as by requiring federal officials to make more immigration status determinations in response to Arizona referrals, impair national uniformity, and otherwise conflict with the federal government’s immigration policy and enforcement priorities.  In adopting the relevant federal laws, Congress sought to balance its concern with illegal immigration with other concerns, ranging from cost and administration to the protection of legal immigrants, so it is not enough for Arizona to argue that it is merely doubling-down on federal law.  Insofar as Arizona is striking a different balance, its law has the potential to conflict with federal policy.  The key question is whether these arguments should have greater strength in the context of immigration, where there is a particular federal interest, or should apply more broadly.

Some commentators are surprised that Judge Bolton rejected Arizona’s interpretation of its own state law, but this is not that unusual, in the preemption context or otherwise.  Insofar as a federal judge finds the text of a state law clear, this text controls, state assertions notwithstanding.  A state’s interpretation of its own law is due some respect, but it is not controlling.  The same holds true for the federal government — the DOJ’s interpretations of congressional statutes do not bind federal judges.

In reviewing this opinion, it’s important to remember that it accompanies an order for a preliminary injunction, and was issued on the eve of the Arizona law taking effect.  It was produced rather quickly and under significant time pressure.  As a consequence, it may not be as focused and coherent as, say, the typical federal appellate opinion issued months after oral argument.  This is not a criticism of the opinion, but an explanation as to why it is not a model of clarity.  Had Judge Bolton had more time, I expect her opinion would have been more clear.

Be that as it may, the U.S. Court of Appeals for the Ninth Circuit may have a say on this soon enough.  On Thursday, Arizona filed notice it will appeal the district court’s preliminary injunction against enforcing parts of its controversial immigration bill.   The state subsequently filed a motion seeking an expedited briefing schedule.  As Lyle Denniston reports on SCOTUSBlog, the U.S. is all seeking expedited briefing (albeit on a slightly different schedule than sought by AZ).  If either motion is accepted, we’ll have merits briefing and an oral argument later this fall.  The ultimate disposition could also be determined by the Supreme Court’s resolution of U.S. Chamber of Commerce v. Candelaria, a case involving a preemption challenge to another Arizona immigration law that it will hear next term.

UPDATE: The U.S. Court of Appeals for the Ninth Circuit has refused to expedite Arizona’s appeal and has set oral argument for this case the week of November 1.  The order is here.

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