Ken Klukowski: Three Silver Linings in the Bad Arizona Court Decision


ACRU Staff


July 30, 2010

ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing July 29, 2010, on

Wednesday’s federal court decision on Arizona’s immigration law is being rightly criticized for a number of reasons. But there are three silver linings to this situation, which may result in the rule of law prevailing in the end.

On July 28, Judge Susan Bolton of the U.S. District Court for the District of Arizona issued a preliminary injunction—meaning she stopped from going into effect—most of the key provisions in Arizona’s new law. As I’ve written previously, this law should be held constitutional because it’s not an immigration law; it doesn’t determine who can become a citizen or who can be on American soil. Instead it’s a police-power law, where Arizona says that if you’re not permitted to be in this country, then you’re trespassing if you enter Arizona, and if you have a run-in with the cops for some other reason, then those cops can ask if you’re in this country illegally.

This is not an immigration law. It’s also not racist. It’s not racial profiling. And it’s not usurping the role of the federal government (which has abysmally failed here).

Instead, it’s an employment law and property law. That authority arises from Arizona’s police power to make laws for public safety, health, and societal welfare—which the Constitution reserves to the states through the Tenth Amendment.

But as bad as the federal court’s decision is, there are three silver linings to it that could see the rule of law prevail in the end, to the benefit of everyone—including foreigners who want to work here.

First, with Elena Kagan’s nomination to the Supreme Court looming, this highlights the need for judges who faithfully interpret the Constitution and federal laws according to their original meaning, without any regard for politics or policy preferences. This Arizona case will go to the U.S. Court of Appeals for the Ninth Circuit. Goodwin Liu, who believes in constitutional rights to healthcare and housing, and who says any judicial nominee who believes judges are bound by the words of the Constitution should be filibustered because they’re unfit for the bench—is President Obama’s nominee for the Ninth Circuit. This case highlights Liu’s radicalism, and draws the public’s attention to the extremists that the president seeks to put on the courts to rubber-stamp his agenda.

That this law has been put on hold by a federal judge is unfortunate. While Congress has overriding power to make immigration laws, states retain police power under the Tenth Amendment to make laws like Arizona’s. This case will focus America’s judicial debate on faithfulness to the Constitution and the limits of federal power, with implications for everything from Obamacare, to free speech, to gun rights.

Second, this spotlights the need for enforcement in immigration policy. America desperately needs an effective immigration policy that will fulfill our labor needs while upholding the rule of law. (Labor needs that can be met without granting citizenship.) But as Senator Jon Kyl explained, President Obama is holding border enforcement hostage to force amnesty. That’s no way to make policy, and this case focuses the frustration of the American people to secure the border first, and then we can all have a calm and thoughtful debate on how to deal with the broad questions of labor needs, citizenship, and the millions of illegals currently here.

And third, there’s a good chance that this decision will be reversed on appeal. Although the Ninth Circuit is the most liberal federal appellate court in the country (more so if Liu is confirmed), there are a number of originalist judges on that court, so depending on the judges Arizona draws for its three-judge panel, things could go well. Either way the U.S. Supreme Court likely will take this case after the Ninth Circuit reviews it, where the odds are good that Arizona’s law will be upheld.

So Wednesday was a bad day for the rule of law, but those cheering this decision may not be celebrating in the end. It reminds millions of Americans about what we expect from our government—and our courts.



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