The States’ Battle to Take Back Immigration Reform From Uncle Sam

The federal government has always maintained jurisdiction over the laws surrounding immigration. However, states around the country feel that the Obama Administration is not combating the problems associated with immigration and thus forcing them to pass their own laws. Numerous states have introduced bills, but Arizona is the first to take the lead at passing a real state-level immigration law. However, Arizona's attempts at passing their own law have hit a roadblock after a federal district court judge issued an injunction against the state's measures.

Arizona's Immigration Law

Arizona is the most recent state to take immigration action into their own hands by passing a state-level law to tackle the influx of illegal aliens entering the state. On July 28, 2010, U.S. District Court Judge Susan R. Bolton issued an injunction to block enforcement of certain provisions of Arizona's new immigration law. One day before originally expected to take effect, Judge Bolton declared sections of the law invalid.

Sections Judge Bolton invalidated include:

• Requiring police to check an individual's immigration status if he or she reasonably believes the person is an illegal immigrant, even if stopped for other reasons
• Detaining illegal immigrant suspects until their legal status is verified
• Allowing warrantless arrests of suspected illegal immigrations

• Criminalizing immigrants who refuse to carry registration papers

Why Was the Law Blocked?

Judge Bolton told the Washington Post that, "requiring police officers to determine the immigration status of every arrestee burdens lawfully present aliens because their liberty will be restricted while their status is checked." The Judge told the San Francisco Chronicle that "allowing such a system would create an unacceptable burden for legal residents."

However, Arizona Governor Jan Brewer disagreed and claims the Arizona new law was intended to address the federal government's laziness on fixing this problem.

Another reason behind the blockage of the Arizona law is the constitutional authority for the federal government to "preempt" or block any state statute that conflicts with an outstanding federal law on the same subject matter.

Judge Bolton stated in her decision that the proposed Arizona law intruded into known federal immigration enforcement. "Not only does the Arizona state law target immigrants and imposes a burden on federal law enforcement officials," she claims, "federal law already preempts parts of the new state law and thus leaves the state law unconstitutional."

Judge Bolton, however, acknowledged state concerns, conceding that Arizona carries a legitimate interest in controlling unlawful entry of illegal aliens in its territory. Ultimately though, she decided that federal authority governs over state policy.

Even as early as 1941, state laws have been stuck down because corresponding federal laws have preempted them. In 1941, The U.S. Supreme Court struck down a Pennsylvania law claiming that it conflicted with a similar federal law. The state law required all noncitizens to register with the state each year and carry an identification card with them.

What the Injunction Means

Judge Bolton's injunction is preliminary and only blocks portions of the Arizona law while the federal lawsuit, brought by the Justice Department against the state of Arizona, proceeds.

Despite the injunction, Judge Bolton's decision still allows other portions of the Arizona law to take effect as scheduled, such as requiring local police to work with federal officials to enforce immigration laws, and increasing penalties for smuggling, transporting or harboring illegal immigrants.

Other State Trends: New York and Ohio

Legislatures in 17 other states have introduced bills similar to Arizona's. CNSNews reports that 46 state legislatures have considered 1,180 bills and resolutions relating to illegal immigration just this year.

According to The Center for Immigration Studies, New York passed a law that allows the governor the right to pardon certain state-convicted criminals in danger of deportation. Only a fraction of those would qualify under the program, however, but the law sets the stage for a state governor to prevent deportation through a pardon.

While civil rights groups and federal lawyers have both objected to the Arizona law, the law in New York has fell out of the public's radar.

In Ohio, both State Representative Courtney Combs and Butler County Sheriff Richard Jones wrote to Ohio Governor Ted Strickland about the need for immigration reform in the state.

Gov. Strickland has said he would not advocate for such a law. However, Rep. Combs and Sheriff Jones are seeking a November 2011 ballot measure, citing drugs allegedly stemming from illegal immigration as the reason for the proposal.

The Future of Immigration Reform

White House Press Secretary, Robert Gibbs, told CNSNews, "I don't think there is any doubt that what is happening in Arizona leads you to understand that [Washington, D.C.] has to act on something that is comprehensive lest we have immigration policy by 50 states."

Since immigration has jumped to the forefront of the public interest, it seems people are obviously unhappy with the current system. Whether the recent court decision's momentum on immigration reform will prompt the federal government to take more action still remains to be seen.

If you or a loved one needs assistance with immigration matters, consult an experienced immigration attorney who can determine what federal and state-level immigration laws apply to your situation.