The Decisions: Excerpts from Key Orders
The anti-immigrant laws largely devised and defended by Kris Kobach and the Immigration Reform Law Institute repeatedly have been enjoined or struck down by federal judges, although some, including Arizona's S.B. 1070, are still being adjudicated in the courts. Here are excerpts from three recent court decisions:
U.S. District Court, Phoenix
Judge Susan Bolton (Bill Clinton appointee)
July 28, 2010
"[T]here is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new [law]. By enforcing this statute, Arizona would impose a ‘distinct, unusual and extraordinary' burden on legal resident aliens that only the federal government has the authority to impose."
3rd U.S. Circuit Court of Appeals, Philadelphia
Judge Theodore A. McKee (Clinton appointee)
Sept. 9, 2010
"A patchwork of state and local systems each independently monitoring, investigating, and ultimately deciding — all concurrently with the federal government — whether employers have hired unauthorized aliens could not possibly be in greater conflict with Congress's intent for its carefully crafted prosecution and adjudication system to minimize the burden imposed on employers."
"By imposing additional sanctions on employers who hire unauthorized aliens, while not penalizing those who discriminate, Hazleton has elected to place all of its weight on one side of the regulatory scale. This creates the exact situation that Congress feared: a system under which employers might quite rationally choose to err on the side of discriminating against job applicants they perceive to be foreign."
"Hazleton has … chosen to disregard Congress's other objectives — protecting lawful immigrants and others from employment discrimination, and minimizing the burden imposed on employers. Regulatory ‘cherry picking' is not concurrent enforcement, and it is not constitutionally permitted."
"Hazleton … contends that the Doe Plaintiffs lack standing because their claimed injuries would be caused by third-party landlords, and not the ordinances. This verges on the ridiculous. Just as Hazleton's ordinances compel tenants not to rent from Plaintiff landlords, they compel landlords not to rent to Plaintiff tenants."
FARMERS BRANCH, TEXAS
U.S. District Court, Dallas
Judge Jane Boyle (George W. Bush appointee)
Sept. 12, 2010
"An act by the City to remove such persons would be an act of deportation where the federal government for any reason or no reason has chosen not to act. And that is exactly precisely the conflictive situation that the preemptive doctrine was developed to prevent. Indeed, we can imagine the slippery slope, if you will, if every local and state government enacted laws purporting to determine that even though the federal government was permitting the person to reside in the country generally, the person could not stay in their bounds. If every city and state enacted and enforced such laws and then began deporting people to other cities and states, the federal government's control over decisions relating to immigration would be effectively eviscerated because the people it was allowing to stay in the United States would eventually have nowhere to live."
"[T]he substitution of a local government employees — in this case, the building inspector, under the ordinance — with no legal training or understanding of immigration law and without the hearing to which the alleged alien is entitled under the INA could not be, in this Court's view at this point, a clearer attempt to regulate immigration by substituting a local process for the federal one."