Saturday, July 31, 2010
I think Judge Bolton got it wrong in the Arizona immigration law case. He ruling was based on the theory of preemption-state law cannot conflict with federal law. Good concept-in the Supremacy Clause of the Constitution, in fact. However, every other preemption case has involved a state law conflicting with the Constitution, a federal statute (or agency regulation promulgated in accordance with a federal statute) or a treaty. To my knowledge, there have been no preemption cases involving a state law being struck down because it conflicted with some vague "policy." The Constitution, federal laws, and treaties are the supreme law of the land. State law cannot conflict with them. This is not the case for the President's policy preferences.