While the Arizona law was purportedly enacted to “work together to discourage and deter the unlawful entry and presence of aliens” in Arizona, making “attrition through enforcement a public policy of the state and local government agencies of Arizona,” it attempted to change immigration law completely. The Arizona law would have made it a criminal offense for an immigrant to fail to have in his possession proof of the legality of stay, and authorized police to arrest and detain any such person, directly contrary to the authority of the U.S. government, which never considered the unlawful presence of an alien in the United States to be a criminal offense.

Another significant effect of the court’s ruling will be to discourage some 20 other states that have been considering legislation like Arizona’s. The federal injunction is based upon the principles of our constitutional system, which accords the federal government preeminent authority to regulate immigration, an authority derived from the supremacy clause of the U.S. Constitution. Although states have authority to exercise their “police power” in a way which may have incidental effect upon the lives of aliens, a state may not establish its own immigration policy or enforce federal immigration laws in a manner inconsistent with federal enforcement procedure.

What then is to be done about the real problem, the presence of over 10 million “illegals” which precipitated the Arizona legislation? A good proportion of those find themselves in unlawful status because the immigration system has simply broken down. For example, a lawful permanent resident who marries his sweetheart and sponsors her for lawful permanent residence status would have a waiting period of at least five to seven years until his application would be reached. An engineer sponsored for permanent residence by an American employer would be faced with an equally long waiting period. Should he return abroad for processing after an overstay of beyond a year, the law requires a 10-year waiting period before a visa application may be filed overseas for his return, a rule that completely discourages the departure of overstayed visitors. These provisions and others in the present law have made illegals out of otherwise law-abiding persons and need to be changed. Rather than further politicize the situation, Congress needs to repair our broken immigration law promptly.

In 2007 Congress failed to take action necessary to fix the broken system, and the bill co-sponsored by Senators Kennedy and McCain failed to be acted upon. President Obama has promised to take up needed changes in the immigration law as soon as his concern for medical care was resolved. This is the time for him to show some real leadership, to act forcefully and demonstrate the moral authority needed to lead the drive for sensible immigration reform.

Michael J. Wildes is the managing partner of the leading immigration law firm, Wildes & Weinberg P.C. He is a former federal prosecutor and recently completed two terms as the mayor of Englewood, N.J., where he resides.