WASHINGTON (By Josh Gerstein, Politico) August 1, 2010 — Despite the blow dealt by a federal judge to Arizona’s law aimed at tackling illegal immigration, lawmakers and activists backing similar measures in states across the country say the judge’s ruling won’t dissuade them from pressing on with their campaign to assert local governments’ rights to manage the issue.

“People are going to be completely undeterred by that. We recognize it’s just a district court judge,” said Corey Stewart, the chairman of the board of supervisors in Prince William County, Va. and a proponent of anti-illegal immigration legislation in that state. “This will be pursued by various states and localities until the federal government actually does something substantial to crack down on illegal immigration, both in terms of Border Patrol and internal enforcement.”

On Wednesday, U.S. District Court Judge Susan Bolton ruled that key aspects of a law Arizona passed in April were unconstitutional because they intruded on the federal government’s authority over immigration policy. She blocked parts of the law that required immigration checks on people stopped by police, allowed police to hold individuals pending the outcome of such a check and made it a state crime for foreigners to be in Arizona without immigration paperwork.

While Bolton’s decision in the closely watched dispute may have influence in other states, it only applies directly in Arizona.

The state has appealed the ruling to the 9th Circuit Court of Appeals, whose resolution of the case would have a much greater impact since it would have effect in nine Western states that account for about 20 percent of the U.S. population. However, on Friday the 9th Circuit rebuffed Arizona’s request to speed up the appeal, meaning no decision is expected before the November elections.

“From a straight legal point of view, obviously, Bolton’s ruling can’t make them very happy, because a significant decision was made by a very serious judge and it was reasonably well thought out,” said Muzaffar Chishti of the non-partisan Migration Policy Institute. “That has to create a pause for people who thought this is a slam dunk.”

However, Chishti said he doesn’t expect the campaign for new state laws to let up.

“What is the motivation of people who want to replicate Arizona’s law? If their motivation is political, then they will probably want to introduce laws like this as a wedge issue… in an election year,” he said.

The law Arizona passed included about 10 different substantive components built on the state’s existing statutes, so it was never likely that a carbon copy would be passed elsewhere. But attempts to pass similarly broad legislation are underway in Idaho, Oklahoma and Virginia.

Stewart described the strategy this way: “You throw a bunch of things against the wall and see what sticks.”

During the first half of 2010, almost 1,400 immigration-related bills and resolutions were introduced at the state level—close to a record set last year, according to the National Conference of State Legislatures.

“There’s clearly a public demand for action and that’s what’s been playing out in all of the states,” said Sharon Tomiko Santos, a Democratic state representative in Washington and co-chair of the NCSL’s immigration task force. “The states are feeling very frustrated with the federal government…The failure of Congress to act [on immigration legislation] really has caused some important economic problems as well as public safety issues.”

However, the ability of state legislatures to actually pass new laws on the issue in the coming months is limited since many are in session only for part of the year and are not due back until early 2011.

Asked about the impact of Bolton’s ruling, Santos said, “I would say it’s a yellow light right now. It’s a moment to pause, I think, and let the legal beagles in every state pore over the judges’ rationale.”

Santos also said Bolton’s finding that the federal government has exclusive control over many immigration-related policies could up the pressure on Washington to act, but she said the action Congress takes might not be the kind of bill she supports involving a path to citizenship for many illegal immigrants already in the country.

“There could be more support for something more draconian,” Santos said. “I think we have to acknowledge the 800-pound gorilla in the room is the November election.”

While many legal experts have endorsed Bolton’s ruling, some believe aspects of her opinion are vulnerable to being overturned by the 9th Circuit or the Supreme Court.

“She just engaged in sheer speculation and took the worst-case-scenario view of everything,” said Peter Schuck, an emeritus and adjunct professor at Yale Law School. “There is a tendency when one engages in this kind of speculation to assume the worst rather than, as I think you are supposed to do in federal-state cases, assuming the least impact….She simply was not straining to defer to the state law and legislature the way a judge is supposed to.”

One portion of Bolton’s decision that has been a particular focus of criticism is her conclusion, in advance of the law taking effect, that forcing local and state law enforcement officials to check all arrestees against a federal immigration database “will divert resources from the federal government’s other responsibilities and priorities.” Local officers are already permitted to make such checks and a law passed by Congress requires the government to respond to them.

“It’s an odd basis for striking down a statute that federal authority exists to do this but if it’s actually used, the feds may think better of it,” Schuck said. “It’s one of the reasons why I really think the judge can be criticized for taking on the case, instead of waiting” to see what happened when the law was implemented, he added.

However, even Virginia’s Stewart, who supports more immigration-related legislation at the state and local level, said part of Bolton’s ruling is likely to be upheld. “The part of the Arizona law that said you have to carry your immigration papers, that has problems with it and will probably remain struck down,” he said.

While the legal maneuvering over Arizona’s new law has garnered intense and breathless press attention in recent days, the legal battle over state efforts to control immigration is far broader.

The Supreme Court has already agreed to hear arguments on another Arizona law, passed in 2007, that makes it mandatory for Arizona businesses to check their workers through a federal immigration-status database and threatens to shut down businesses who hire illegal immigrants. The Obama administration is asking the court to strike down the so-called employer sanctions law, even though it was signed by Homeland Security Secretary Janet Napolitano when she was Arizona’s governor.

And another federal appeals court should be nearing a significant decision on the rights of local governments to ban business transactions with illegal aliens. The Philadelphia-based 3rd Circuit Court of Appeals heard arguments nearly two years ago on the attempt by the city of Hazelton, Pa. to require landlords and other business owners to verify that their customers were in the country legally. The appeals court hasn’t yet ruled on the case and could do so at any time.

Chishti believes the various court cases and the public controversy are mushrooming into something much bigger than immigration: a huge and potentially historic showdown over the role of the courts and states’ rights.

“This is beginning to look like Marbury v. Madison, the Federalist Papers and the Wallaces in the 1960s. It’s a question of the federal government asserting its authority over the states,” Chishti said. “Federal authority is really being tested in a way it hasn’t been tested in our political debate for a long time….This really focuses attention on it in a different way and it puts a lot of pressure on the Supreme Court.”