ANSWER: Both are subjects of important federal court rulings that federal law preempts state law. Proponents of the Arizona immigration law should recognize that they’re just the latest victims of an anti-7th Amendment federal preemption movement that has already spread into many sectors of American life, thanks to Congress, the federal courts, and federal bureaucrats.
As noted by legal scholars (here and here), the decision last week by District Court Judge Bolton to block key sections of the Arizona immigration law was based in standard federal preemption theory, not the unconstitutionality of the law or each section in it. After ruling that a severability clause in the Arizona law was sufficient to block federal preemption of the law in its entirety, Judge Bolton proceeded to analyze each section of the Arizona law for what she termed “the constitutionality of the individual provisions,” but in reality she judged each provision against current federal law, and determined the likelihood that the United States would ultimately succeed in blocking each such section (see page 13 of the attached ruling). For instance, when blocking the section of the Arizona law which forbids illegal aliens from working, Judge Bolton wrote,
The provision limiting the use of attestation forms and the civil penalties outlined for document fraud in Title 8 and the robust sanctions for employers who hire, continue to employ, or refer unauthorized workers convince the Court that Congress has comprehensively regulated in the field of employment of unauthorized aliens. These ‘extant actions,’ in combination with an absence of regulation for the particular violation of working without authorization, lead to the conclusion that Congress intended not to penalize this action, other than the specific sanctions outlined above. See P.R. Dep’t of Consumer Affairs, 485 U.S. at 503-04. Thus, the Court finds that Plaintiff is likely to succeed on its claim that Arizona’s new crime for working without authorization, set forth in Section 5 C of S.B. 1070, conflicts with a comprehensive federal scheme and is preempted. (See page 27 of the ruling.)
Conservative commentators were upset/outraged at the ruling, see Michelle Malkin’s website and Rush Limbaugh’s and Glenn Beck’s.
Although I agree with most of their political views, none of them know widespread the “federal preemption disease” is in Washington. One of Rush Limbaugh’s first statements was, “This, to me, is big because normally federal courts do not side with the federal government against states like this. I could be wrong about this, but I don’t think that’s standard.” Advocates of 7th Amendment rights know that federal preemption of state law by federal courts, bureaucrats, and Congress certainly has been the “standard” in the past decade. Just as an example, thousands of victims of defective implantable medical devices (classified as “Class III” under FDA regulations) know all about federal preemption the hard way. They thought they had a case against the manufacturer of their device (e.g., a pacemaker or artifical limb) in state courts under the Medical Device Amendments of 1976 to the Food, Drug and Cosmetic Act. Users of a defective pacemaker sold by Medtronic suffered internal electrocution inside their body, as the wire from the battery loosened from the pacemaker and sent jolt after jolt through their chest. As I wrote on June 24, the Supreme Court ended their hopes of receovery in the Riegel v. Medtronic decision, when the Court changed 30 years of legal practice by ruling that the 1976 MDA preempted state common law suits. Thousands of potential cases have either been summarily dismissed or not filed. A bill to reverse the Riegel decision is hung up in Congress, the victim of pressure brought by the medical device companies and the business community.
Conservatives just haven’t been watching, as the federal preemption octopus has spread its tentacles from Washington into all parts of our lives. I wrote on June 24 that the 7th Amendment is being repeatedly challenged by federal preemption through aggressive regulatory decisions by unelected bureaucrats in Washington. “Federal preemption abrogates 7th Amendment rights by immunizing the affected industry from civil suits, with no accountability for negligence; it leaves injured consumers with no means of seeking recovery for injuries caused by the product or service. Federal bureaucrats love expanding their power and ensuring their permanency by preempting state law, and in recent years they’ve certainly exercised that power. Bureaucrats in the Food & Drug Administration (FDA), National Highway Traffic Safety Administration (NHTSA), Consumer Product Safety Commission (CPSC), Department of Homeland Security, Pipeline and Hazardous Materials Safety Administration, Transportation Safety Administration and Federal Railroad Administration have all joined in writing federal preemption into regulations.”
As I wrote on July 20, the federal preemption wave turns over the authority over our lives to the elites and away from the country. If conservatives are going to complain about the court ruling in the Arizona case, they’re going to have start being more attentive to the ever-increasing domination by Washington of our lives, as state statutory laws and our 7th Amendment right to civil justice are preempted by Congress, the bureaucracy, or the judiciary.