Arizona Blues

There's been a lot of interesting writing in the past couple of days about the Federal judge's decision to basically gut Arizona's immigration law.

For Obama and the Democrats, it is a Pyrrhic victory. They may have gutted the law, but they have outraged the American public in how they did it. The decision seems to have quite questionable reasoning.

Andy McCarthy at National Review:

On a quick read, the federal court’s issuance of a temporary injunction against enforcement of the major provisions of the Arizona immigration law appears specious.

In essence, Judge Susan Bolton bought the Justice Department’s preemption argument — i.e., the claim that the federal government has broad and exclusive authority to regulate immigration, and therefore that any state measure that is inconsistent with federal law is invalid. The Arizona law is completely consistent with federal law. The judge, however, twisted to concept of federal law into federal enforcement practices (or, as it happens, lack thereof). In effect, the court is saying that if the feds refuse to enforce the law the states can’t do it either because doing so would transgress the federal policy of non-enforcement … which is nuts.

The judge also employs a cute bit of sleight-of-hand. She repeatedly invokes a 1941 case, Hines v. Davidowitz, in which the Supreme Court struck down a state alien-registration statute. In Hines, the high court reasoned that the federal government had traditionally followed a policy of not treating aliens as “a thing apart,” and that Congress had therefore “manifested a purpose … to protect the liberties of law-abiding aliens through one uniform national system” that would not unduly subject them to “inquisitorial practices and police surveillance.” But the Arizona law is not directed at law-abiding aliens in order to identify them as foreigners and subject them, on that basis, to police attention. It is directed at arrested aliens who are in custody because they have violated the law. And it is not requiring them to register with the state; it is requiring proof that they have properly registered with the federal government — something a sensible federal government would want to encourage.

Judge Bolton proceeds from this misapplication of Hines to the absurd conclusion that Arizona can’t ask the federal government for verification of the immigration status of arrestees — even though federal law prohibits the said arrestees from being in the country unless they have legal status — because that would tremendously burden the feds, which in turn would make the arrestees wait while their status is being checked, which would result in the alien arrestees being treated like “a thing apart.”

The ruling ignores that, in the much later case of Plyler v. Doe (1982), the Supreme Court has emphasized that

Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service. Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns. [Emphasis added.]

Furthermore, as Matt Mayer of the Heritage Foundation notes, the Fifth Circuit federal appeals court similarly held in Lynch v. Cannatella (1987) that “No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation’s immigration laws.”

However this ruling came out, it was only going to be the first round. Appeal is certain. But the gleeful Left may want to put away the party hats. This decision is going to anger most of the country. The upshot of it is to tell Americans that if they want the immigration laws enforced, they are going to need a president willing to do it, a Congress willing to make clear that the federal government has no interest in preempting state enforcement, and the selection of judges who will not invent novel legal theories to frustrate enforcement. They are not going to get that from the Obama/Reid/Pelosi Democrats.

William Jacobson at Legal Insurrection:

The result of the injunction granted today by the federal court in Arizona preventing the key provisions of S.B. 1070 from taking effect is not just the maintenance of the status quo.

At a legal level, it is true that nothing has changed. S.B. 1070 never took effect, so no law was lost.

At a more realistic level, everything has changed.

States have been left helpless to deal with the anarchy created by the failure of the federal government to enforce border security. Whereas yesterday it was unclear how far states (such as Rhode Island) could go, today states are powerless.

The inability of a state to implement a policy of checking the immigration status even of people already under arrest for some other crime is remarkable.

While I cannot blame the Judge for striking some provisions of S.B. 1070 (particularly those creating independent criminal sanctions), the ruling as to checking the status of people already under arrest is mind-numbing.

As a reader to my prior post points out, states already routinely run searches for a variety of statuses, including outstanding warrants, child support orders, and non-immigration identity checks. Each of these checks potentially could delay release of an innocent person or burden some federal agency.

The Judge's reasoning, particularly that the status check provision violated the 4th Amendment even as to persons already under arrest, applies just as easily to these other status checks.

With a federal government which refuses to take action at the border until there is a deal on "comprehensive" immigration reform, meaning rewarding lawbreakers with a path to citizenship, this decision will insure a sense of anarchy. The law breakers have been emboldened today, for sure.

As it stands this afternoon, it is perfectly rational for someone faced with the choice of obeying the immigration laws or not, to choose not to do so. The choice of lawlessness makes a lot more sense than spending years winding through the byzantine legal immigration system, because the end result will be the same but lawlessness gets you here more quickly.

When the law and the federal government reward lawlessness, something is very wrong.

Update 7-29-2010: As others have noted, the Judge enjoined the checking of status of arrestees by reading the second sentence of Section 2(B) ("Any person who is arrested shall have the person's immigration status determined before the person is arrested") as completely independent of the first sentence, which requires reasonable suspicion prior to a status check. That reading by the Judge plainly is wrong, since the first sentence specifically references the requirement of reasonable suspicion after "any lawful stop, detention or arrest...." (emphasis mine) The language of the statute fully supported the state's position, which the judge rejected, that the state only intended to check the status of arrestees as to whom there was reasonable suspicion, and who did not have any of the accepted forms of identification. Given the Judge's rulings on preemption and the 4th Amendment, I'm not sure the result would have been any different had she read the statute correctly.

Jacobson has a bit of what is, in a way, good news:

Arizona has requested that the 9th Circuit Court of Appeals set an expedited briefing schedule which would have the case fully briefed in just over one month. This is about half the time normally allotted for briefing in appeals from a preliminary injunction.

The U.S. Department of Justice has just filed an opposition to the motion, arguing that the regular schedule should be followed, which would not have the case fully briefed until October 7, 2010. DOJ stated that it did not want its usual 28 day time period shortened, even if Arizona shortened its own time for briefing.

The longer the delay on the court ruling on this, the more time this issue will be in the public spotlight, getting attention and media coverage and hurting Obama and the Democrats for their craven refusal to deal with illegal immigration.

And, with court hearings starting on October 7, at the height of the fall campaign, this is likely to be a significant issue in many races nationwide. The decision might even come down before the election, providing a moment of clarity for voters.